**Exhibit 10.1**

 

**[Published CUSIP Number:                                ]**

 

CREDIT AGREEMENT

 

Dated as of June 29, 2007

 

among

 

KNOLL, INC.,

as the Borrower,

 

THE DOMESTIC SUBSIDIARIES OFTHE BORROWER,

as the Guarantors,

 

BANK OF AMERICA, N.A.,

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

 

and

 

THE OTHER LENDERS PARTYHERETO

 

BANC OF AMERICA SECURITIESLLC,

as Sole Lead Arranger and Sole Book Manager

 

HSBC BANK USA, NATIONAL ASSOCIATION,

as Syndication Agent

 

and

 

CITIZENS BANK,

as Documentation Agent

 

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TABLE OF CONTENTS

 
| ARTICLE I   | DEFINITIONS AND ACCOUNTING TERMS                                              |   |
|-------------|-------------------------------------------------------------------------------|--------|
| 1.01        | Defined Terms                                                                 | 1      |
| 1.02        | Other Interpretive Provisions                                                 | 26     |
| 1.03        | Accounting Terms                                                              | 27     |
| 1.04        | Rounding                                                                      | 27     |
| 1.05        | Exchange Rates; Currency Equivalents                                          | 27     |
| 1.06        | Times of Day                                                                  | 28     |
| 1.07        | Letter of Credit Amounts                                                      | 28     |
| ARTICLE II  | THE COMMITMENTS AND CREDIT EXTENSIONS                                         | 28     |
| 2.01        | Loans                                                                         | 28     |
| 2.02        | Borrowings, Conversions and Continuations of Loans                            | 31     |
| 2.03        | Letters of Credit                                                             | 32     |
| 2.04        | Swing Line Loans                                                              | 40     |
| 2.05        | Prepayments                                                                   | 43     |
| 2.06        | Termination or Reduction of Aggregate Revolving Commitments                   | 44     |
| 2.07        | Repayment of Loans                                                            | 45     |
| 2.08        | Interest                                                                      | 45     |
| 2.09        | Fees                                                                          | 46     |
| 2.10        | Computation of Interest and Fees; Retroactive Adjustments  of Applicable Rate | 46     |
| 2.11        | Evidence of Debt                                                              | 47     |
| 2.12        | Payments Generally; Administrative Agent’s Clawback                      | 47     |
| 2.13        | Sharing of Payments by Lenders                                                | 49     |
| ARTICLE III | TAXES, YIELD PROTECTION AND ILLEGALITY                                        | 50     |
| 3.01        | Taxes                                                                         | 50     |
| 3.02        | Illegality                                                                    | 52     |
| 3.03        | Inability to Determine Rates                                                  | 52     |
| 3.04        | Increased Costs                                                               | 52     |
| 3.05        | Compensation for Losses                                                       | 54     |
| 3.06        | Mitigation Obligations; Replacement of Lenders                                | 54     |
| 3.07        | Survival                                                                      | 55     |
| ARTICLE IV  | GUARANTY                                                                      | 55     |
| 4.01        | The Guaranty                                                                  | 55     |
| 4.02        | Obligations Unconditional                                                     | 55     |
| 4.03        | Reinstatement                                                                 | 56     |
| 4.04        | Certain Additional Waivers                                                    | 56     |
| 4.05        | Remedies                                                                      | 57     |
| 4.06        | Rights of Contribution                                                        | 57     |
| 4.07        | Guarantee of Payment; Continuing Guarantee                                    | 57     |
| ARTICLE V   | CONDITIONS PRECEDENT TO CREDIT EXTENSIONS                                     | 57     |
| 5.01        | Conditions of Initial Credit Extension                                        | 57     |
| 5.02        | Conditions to all Credit Extensions                                           | 60     |
| ARTICLE VI  | REPRESENTATIONS AND WARRANTIES                                                | 61     |
| 6.01        | Organization; Power                                                           | 61     |

 

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| 6.02         | Authorization                                             | 61 |
|--------------|-----------------------------------------------------------|----|
| 6.03         | Enforceability                                            | 62 |
| 6.04         | Governmental Approvals                                    | 62 |
| 6.05         | Financial Statements                                      | 62 |
| 6.06         | No Material Adverse Change                                | 63 |
| 6.07         | Title to Properties; Possession Under Leases              | 63 |
| 6.08         | Subsidiaries                                              | 64 |
| 6.09         | Litigation; Compliance with Laws                          | 65 |
| 6.10         | Agreements                                                | 65 |
| 6.11         | Federal Reserve Regulations                               | 65 |
| 6.12         | Investment Company Act                                    | 65 |
| 6.13         | Use of Proceeds                                           | 65 |
| 6.14         | Tax Returns                                               | 66 |
| 6.15         | No Material Misstatements                                 | 66 |
| 6.16         | Employee Benefit Plans                                    | 66 |
| 6.17         | Environmental Matters                                     | 66 |
| 6.18         | Insurance                                                 | 67 |
| 6.19         | Collateral Documents                                      | 67 |
| 6.20         | Location of Real Property and Leased Premises             | 67 |
| 6.21         | Labor Matters                                             | 68 |
| 6.22         | Solvency                                                  | 68 |
| 6.23         | Certain Treasury Regulation Matters                       | 68 |
| 6.24         | Foreign Assets Control Regulations, Etc.                  | 68 |
| ARTICLE VII  | AFFIRMATIVE COVENANTS                                     | 69 |
| 7.01         | Existence; Business and Properties                        | 69 |
| 7.02         | Insurance                                                 | 69 |
| 7.03         | Taxes                                                     | 71 |
| 7.04         | Financial Statements, Reports, Etc.                       | 71 |
| 7.05         | Litigation and Other Notices                              | 73 |
| 7.06         | Information Regarding Collateral                          | 74 |
| 7.07         | Maintaining Records; Access to Property and Inspections   | 74 |
| 7.08         | Use of Proceeds                                           | 74 |
| 7.09         | Further Assurances                                        | 75 |
| 7.10         | Certain Treasury Regulation Matters                       | 76 |
| 7.11         | Environmental Laws                                        | 76 |
| 7.12         | Post-Closing Obligations                                  | 77 |
| ARTICLE VIII | NEGATIVE COVENANTS                                        | 77 |
| 8.01         | Indebtedness                                              | 77 |
| 8.02         | Liens                                                     | 79 |
| 8.03         | Sale and Lease-Back Transactions                          | 81 |
| 8.04         | Investments, Loans and Advances                           | 81 |
| 8.05         | Mergers, Consolidations, Sales of Assets and Acquisitions | 82 |
| 8.06         | Restricted Payments; Restrictive Agreements               | 83 |
| 8.07         | Transactions with Affiliates                              | 84 |
| 8.08         | Business of Borrower and Subsidiaries                     | 84 |
| 8.09         | Amendments of Subordinated Indebtedness                   | 84 |

 

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| 8.10        | Capital Expenditures                                   | 84  |
|-------------|--------------------------------------------------------|-----|
| 8.11        | Financial Covenants                                    | 85  |
| 8.12        | Fiscal Year                                            | 85  |
| ARTICLE IX  | EVENTS OF DEFAULT AND REMEDIES                         | 85  |
| 9.01        | Events of Default                                      | 85  |
| 9.02        | Application of Funds                                   | 88  |
| ARTICLE X   | ADMINISTRATIVE AGENT                                   | 89  |
| 10.01       | Appointment and Authority                              | 89  |
| 10.02       | Rights as a Lender                                     | 89  |
| 10.03       | Exculpatory Provisions                                 | 89  |
| 10.04       | Reliance by Administrative Agent                       | 90  |
| 10.05       | Delegation of Duties                                   | 90  |
| 10.06       | Resignation of Administrative Agent                    | 91  |
| 10.07       | Non-Reliance on Administrative Agent and Other Lenders | 91  |
| 10.08       | No Other Duties; Etc.                                  | 92  |
| 10.09       | Administrative Agent May File Proofs of Claim          | 92  |
| 10.10       | Collateral and Guaranty Matters                        | 92  |
| ARTICLE  XI | MISCELLANEOUS                                          | 93  |
| 11.01       | Amendments, Etc.                                       | 93  |
| 11.02       | Notices and Other Communications; Facsimile Copies     | 95  |
| 11.03       | No Waiver; Cumulative Remedies                         | 97  |
| 11.04       | Expenses; Indemnity; and Damage Waiver                 | 97  |
| 11.05       | Payments Set Aside                                     | 98  |
| 11.06       | Successors and Assigns                                 | 99  |
| 11.07       | Treatment of Certain Information; Confidentiality      | 102 |
| 11.08       | Set-off                                                | 103 |
| 11.09       | Interest Rate Limitation                               | 103 |
| 11.10       | Counterparts; Integration; Effectiveness               | 104 |
| 11.11       | Survival of Representations and Warranties             | 104 |
| 11.12       | Severability                                           | 104 |
| 11.13       | Replacement of Lenders                                 | 104 |
| 11.14       | Governing Law; Jurisdiction; Etc.                      | 105 |
| 11.15       | Waiver of Right to Trial by Jury                       | 106 |
| 11.16       | USA PATRIOT Act Notice                                 | 106 |
| 11.18       | Parallel Debt                                          | 107 |

 

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| SCHEDULES    |                                                 |   |
|--------------|------------------------------------------------------|--------|
|         |                                                 |   |
| 1.01(a)      | Mandatory  Cost Formulae                             |   |
| 1.01(b)      | Existing  Letters of Credit                          |   |
| 2.01         | Commitments  and Applicable Percentages              |   |
| 6.01         | Good  Standing of Certain Foreign Subsidiaries       |   |
| 6.02         | Authorizations                                       |   |
| 6.04         | Governmental  Approvals                              |   |
| 6.05(a)      | Material  Liabilities Not Reflected in Balance Sheet |   |
| 6.07         | Intellectual  Property Rights                        |   |
| 6.08         | Subsidiaries                                         |   |
| 6.17         | Environmental  Reports                               |   |
| 6.18         | Insurance                                            |   |
| 6.19(a)      | Filing  Offices                                      |   |
| 6.19(c)      | Mortgage  Filing Offices                             |   |
| 6.20(a)      | Owned  Property                                      |   |
| 6.20(b)      | Leased  Property                                     |   |
| 8.01         | Existing  Indebtedness                               |   |
| 8.02         | Existing  Liens                                      |   |
| 8.04         | Existing  Investments                                |   |
| 11.02        | Certain  Addresses for Notices                       |   |
|         |                                                 |   |
| EXHIBITS     |                                                 |   |
|         |                                                 |   |
| 2.02         | Form  of Loan Notice                                 |   |
| 2.04         | Form  of Swing Line Loan Notice                      |   |
| 2.11(a)(i)   | Form  of Domestic Revolving Note                     |   |
| 2.11(a)(ii)  | Form  of Euro Revolving Note                         |   |
| 2.11(a)(iii) | Form  of Swing Line Note                             |   |
| 7.04         | Form  of Compliance Certificate                      |   |
| 7.09         | Form  of Joinder Agreement                           |   |
| 11.06        | Form  of Assignment and Assumption                   |   |

 

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CREDIT AGREEMENT

 

ThisCREDIT AGREEMENT is entered into as of June 29, 2007 among KNOLL, INC., aDelaware corporation (the “Borrower”), the Guarantors (defined herein),the Lenders (defined herein) and BANK OF AMERICA, N.A., as AdministrativeAgent, Swing Line Lender and L/C Issuer.

 

TheBorrower has requested that the Lenders provide $500,000,000****in credit facilities for the purposes set forth herein, andthe Lenders are willing to do so on the terms and conditions set forth herein.

 

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

 

ARTICLE I

 

DEFINITIONS AND ACCOUNTINGTERMS

 

1.01         Defined Terms.

 

Asused in this Agreement, the following terms shall have the meanings set forthbelow:

 

“Acquisition”,by any Person, means the acquisition by such Person, in a single transaction orin a series of related transactions, of all or any substantial portion of theproperty of another Person or at least a majority of the Voting Stock ofanother Person, in each case whether or not involving a merger or consolidationwith such other Person and whether for cash, property, services, assumption ofIndebtedness, securities or otherwise.

 

“AcquiredCapEx Amount” has the meaning specified in Section 8.10(a).

 

“Acquired Entity” has the meaningspecified in Section 8.04(h).

 

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

 

“AdministrativeAgent’s Office” means the Administrative Agent’s address and, asappropriate, account as set forth on Schedule 11.02 or such otheraddress or account as the Administrative Agent may from time to time notify tothe Borrower and the Lenders.

 

“AdministrativeQuestionnaire” means an Administrative Questionnaire in a form supplied bythe Administrative Agent.

 

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

 

“AggregateDomestic Revolving Commitments” has the meaning specified in Section2.01(a).

 

“AggregateEuro Revolving Commitments” has the meaning specified in Section 2.01(b).

 

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“AggregateRevolving Commitments” means the Domestic Revolving Commitments and theEuro Revolving Commitments of all the Lenders.

 

“Agreement”means this Credit Agreement.

 

“AlternativeCurrency” means Euro.

 

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

 

“AlternativeCurrency Reserve” means, at any time, the Dollar amount equal to 2.5% ofthe Total Revolving Outstandings denominated in the Alternative Currency atsuch time.

 

“ApplicablePercentage” means with respect to (a) any Domestic Lender at any time, thepercentage of the Aggregate Domestic Revolving Commitments represented by suchDomestic Lender’s Domestic Revolving Commitment at such time and (b) any EuroLender at any time, the percentage of the Aggregate Euro Revolving Commitmentsrepresented by such Euro Lender’s Euro Revolving Commitment; providedthat if the commitment of each Lender to make Revolving Loans and theobligation of the L/C Issuer to make L/C Credit Extensions have been terminatedpursuant to Section 9.02 or if the Aggregate Revolving Commitments haveexpired, then the Applicable Percentage of each Lender shall be determinedbased on the Applicable Percentage of such Lender most recently in effect, givingeffect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth oppositethe name of such Lender on Schedule 2.01 or in the Assignment andAssumption pursuant to which such Lender becomes a party hereto, as applicable.

 

“ApplicableRate” means with respect to Revolving Loans, Swing Line Loans, Letters ofCredit and the Commitment Fee, the following percentages per annum, based uponthe Consolidated Leverage Ratio as set forth in the most recent ComplianceCertificate received by the Administrative Agent pursuant to Section 7.04(c):

 
| **Pricing  Tier** | ** ** | **Consolidated  Leverage Ratio**             | ** ** | **Commitment  Fee** | ** ** | **Letter of Credit  Fee** | ** ** | **Eurocurrency  Loans** | ** ** | **Base Rate  Loans** | ** ** |
|-------------------|------------|----------------------------------------------|------------|---------------------|------------|---------------------------|------------|-------------------------|------------|----------------------|------------|
| 1                 |       | < 1.50 to 1.0                             |       | 0.125               | %          | 0.75                      | %          | 0.75                    | %          | 0.00                 | %          |
| 2                 |       | > 1.50 to 1.0

but < 2.00  to 1.0 |       | 0.150               | %          | 0.875                     | %          | 0.875                   | %          | 0.00                 | %          |
| 3                 |       | > 2.00 to 1.0

but < 2.50  to 1.0 |       | 0.200               | %          | 1.00                      | %          | 1.00                    | %          | 0.00                 | %          |
| 4                 |       | > 2.50 to 1.0

but < 3.00  to 1.0 |       | 0.250               | %          | 1.25                      | %          | 1.25                    | %          | 0.25                 | %          |
| 5                 |       | > 3.00 to 1.0                             |       | 0.300               | %          | 1.50                      | %          | 1.50                    | %          | 0.50                 | %          |

 

Anyincrease or decrease in the Applicable Rate resulting from a change in theConsolidated Leverage Ratio shall become effective as of the first Business Dayimmediately following the date a Compliance Certificate is required to bedelivered pursuant to Section 7.04(c); provided, however,that if a Compliance Certificate is not delivered when due in accordance withsuch Section, then Pricing Tier 5 shall apply as of the first Business Dayafter the date on which such Compliance Certificate was required to have beendelivered and shall continue to apply until the first Business Day immediatelyfollowing the 

 

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datea Compliance Certificate is delivered in accordance with Section 7.04(c),whereupon the Applicable Rate shall be adjusted based upon the calculation ofthe Consolidated Leverage Ratio contained in such Compliance Certificate.  The Applicable Rate in effect from theClosing Date through the first Business Day immediately following the date aCompliance Certificate is required to be delivered pursuant to Section7.04(b) for the fiscal quarter ending September 30, 2007 shall bedetermined based upon Pricing Tier 3. Notwithstanding anything to the contrary contained in this definition,the determination of the Applicable Rate for any period shall be subject to theprovisions of Section 2.10(b).

 

“ApplicableTime” means, with respect to any borrowings and payments in the AlternativeCurrency, the local time in the place of settlement for the AlternativeCurrency as may be determined by the Administrative Agent or the L/C Issuer, asthe case may be, to be necessary for timely settlement on the relevant date inaccordance with normal banking procedures in the place of payment.

 

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

 

“Asset Sale” means the sale,transfer or other disposition (by way of merger, casualty, condemnation orotherwise but excluding investments permitted by Section 8.04) by theBorrower or any of the Subsidiaries to any Person other than the Borrower orany Guarantor of (a) any Equity Interests of any of the Subsidiaries (otherthan directors’ qualifying shares or the sale by any person of Equity Interestsof such person) or (b) any other assets of the Borrower or any of theSubsidiaries (other than (i) inventory, damaged, obsolete or worn out assets,scrap and Permitted Investments, in each case disposed of in the ordinarycourse of business, (ii) dispositions between or among the Borrower andDomestic Subsidiaries, (iii) dispositions between or among ForeignSubsidiaries; and (iv) dispositions of assets from any Loan Party to anyForeign Subsidiary if the disposition is treated as an investment in theForeign Subsidiary and such investment is permitted by Section 8.04).

 

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

 

“Assignmentand Assumption” means an assignment and assumption entered into by a Lenderand an Eligible Assignee (with the consent of any party whose consent isrequired by Section 11.06(b)), and accepted by the Administrative Agent,in substantially the form of Exhibit 11.06 or any other form approved bythe Administrative Agent.

 

“AuditedFinancial Statements” means the audited consolidated balance sheet of theBorrower and its Subsidiaries for the fiscal year ended December 31, 2006, andthe related consolidated statements of income or operations, shareholders’equity and cash flows for such fiscal year of the Borrower and itsSubsidiaries, including the notes thereto, audited by independent publicaccountants of recognized national standing and prepared in conformity withGAAP.

 

“Availability Period” means the period from and including theClosing Date to the earliest of (a) the Maturity Date, (b) the date oftermination of the Aggregate Revolving Commitments pursuant to Section 2.06,and (c) the date of termination of the commitment of each Lender to make Loansand the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section9.02.

 

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

 

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

 

3

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“BaseRate” means for any day a fluctuating rate per annum equal to the higher of(a) the Federal Funds Rate plus 0.50% and (b) the rate of interest ineffect for such day as publicly announced from time to time by Bank of Americaas its “prime rate.”  The “prime rate” isa rate set by Bank of America based upon various factors including Bank ofAmerica’s costs and desired return, general economic conditions and otherfactors, and is used as a reference point for pricing some loans, which may bepriced at, above, or below such announced rate. Any change in the “prime rate” announced by Bank of America shall takeeffect at the opening of business on the day specified in the publicannouncement of such change.

 

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

 

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

 

“Borrower Materials” has the meaningspecified in Section 7.04.

 

“Borrowing”means a borrowing consisting of simultaneous Loans of the same Type and, in thecase of Eurocurrency Rate Loans, having the same Interest Period made by eachof the Lenders pursuant to Section 2.01.

 

“BusinessDay” means any day other than a Saturday, Sunday or other day on whichcommercial banks are authorized to close under the Laws of, or are in factclosed in, the state where the Administrative Agent’s Office with respect toObligations denominated in Dollars is located and;

 

(a) if such day relates to any interest rate settings as to aEurocurrency Rate Loan denominated in Dollars, any fundings, disbursements,settlements and payments in Dollars in respect of any such Eurocurrency RateLoan, or any other dealings in Dollars to be carried out pursuant to thisAgreement in respect of any such Eurocurrency Rate Loan, means any such day onwhich dealings in deposits in Dollars are conducted by and between banks in theLondon interbank eurodollar market; and

 

(b)           if such dayrelates to any interest rate settings as to a Eurocurrency Rate Loandenominated in Euro, any fundings, disbursements, settlements and payments inEuro in respect of any such Eurocurrency Rate Loan, or any other dealings inEuro to be carried out pursuant to this Agreement in respect of any suchEurocurrency Rate Loan, means a TARGET Day.

 

“Businesses”means, at any time, a collective reference to the businesses operated by theBorrower and its Subsidiaries at such time.

 

“Capital Expenditures” means, forany period, (a) the additions to property, plant and equipment and othercapital expenditures of the Borrower and its consolidated Subsidiaries that are(or should be) set forth in a consolidated statement of cash flows of theBorrower for such period prepared in accordance with GAAP and (b) Capital LeaseObligations or Synthetic Lease Obligations incurred by the Borrower and itsconsolidated Subsidiaries during such period, but excluding in each case (i)any such expenditure made to restore, replace or rebuild property to thecondition of such property immediately prior to any damage, loss, destructionor condemnation of such property, to the extent such expenditure is made withinsurance proceeds, condemnation awards or damage recovery proceeds relating toany such damage, loss, destruction or condemnation, (ii) any such expendituremade as the purchase price of any Permitted Acquisition, (iii) capitalexpenditures relating to the construction or acquisition of any property thathas been transferred to a person (other than the Borrower or any Subsidiary)pursuant to a sale-leaseback transaction permitted under Section 8.03,(iv) interest capitalized during such period, (v) the purchase price ofequipment that is purchased during such period to the extent the considerationtherefor consists of any combination of (x) used or surplus equipment traded inat the time of such purchase and (y) the 

 

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proceedsof a concurrent sale of used or surplus equipment, in each case, in theordinary course of business, (vi) the purchase price of equipment that ispurchased substantially contemporaneously with the trade-in of existingequipment to the extent that the gross amount of the such price is reduced bythe credit granted by the seller of such equipment for the equipment beingtraded at such time, (vii) any capital expenditures made with proceeds receivedfrom an Asset Sale, or (viii) expenditures that constitute PermittedAcquisitions.

 

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

 

“Cash Collateralize” has the meaning specified in Section2.03(g).

 

“CashManagement Obligations” means obligations owed by the Borrower or any ofits Subsidiaries to any Lender or any Affiliate of a Lender in respect of anyTreasury Management Agreement.

 

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

 

“Changeof Control” means the occurrence of any of the following events:

 

(a)           any “person” or “group”(within the meaning of the Securities Exchange Act of 1934 and the rules of theSEC thereunder as in effect on the date hereof) becomes, directly orindirectly, the beneficial owner of Equity Interests in the Borrowerrepresenting more than 40% or more of the Equity Interests of the Borrowerentitled to vote for members of the board of directors or equivalent governingbody of the Borrower on a fully-diluted basis (and taking into account all suchsecurities that such person or group has the right to acquire pursuant to anyoption right);

 

(b)           at any time, occupation of amajority of the seats (other than vacant seats) on the board of directors ofthe Borrower by persons who were neither nominated by the board of directors ofthe Borrower nor appointed by directors so nominated; or

 

(c)           the occurrence of any changein control or similar event (however denominated) with respect to the Borrowerunder and as defined in any indenture or agreement in respect of MaterialIndebtedness to which the Borrower or a Subsidiary is a party.

 

“ClosingDate” means the date hereof.

 

“Collateral”means a collective reference to all real and personal property with respect towhich Liens in favor of the Administrative Agent, for the benefit of theLenders, are purported to be granted pursuant to and in accordance with theterms of the Collateral Documents.

 

“CollateralDocuments” means a collective reference to the Security Agreement, theMortgages and other security documents as may be executed and delivered by theLoan Parties pursuant to the terms of Section 7.09.

 

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“Commitment” means, as to each Lender, the Domestic RevolvingCommitment and the Euro Revolving Commitment of such Lender.

 

“Compliance Certificate” has the meaningspecified in Section 7.04(c) and shall be substantially in the form of Exhibit7.04.

 

“Consolidated EBITDA”means, for any period, Consolidated Net Income for such period plus (a) withoutduplication and to the extent deducted in determining such Consolidated Net Income,the sum of (i) Consolidated Interest Expense for such period,(ii) all amounts for taxes based on income, profits or capital andcommercial activity payments to taxing authorities (or in each case similartaxes or payments), including, without limitation, income tax expense ofconsolidated Foreign Subsidiaries and foreign withholding tax expense for suchperiod, (iii) all amounts attributable to depreciation and amortizationfor such period, (iv) any non-recurring fees, cash charges and other cashexpenses made or incurred in connection with the Transactions that are paid orotherwise accounted for within 180 days of the consummation of theTransactions, (v) any extraordinary losses, (vi) (A) facilitiesrelocation or closing costs, (B) non-recurring restructuring costs and(C) integration costs and fees, including cash severance costs, inconnection with Permitted Acquisitions, in each case incurred during suchperiod and payable in cash, in an aggregate amount under this clause (vi)not to exceed $10,000,000, (vii) amortization and impairment charges resultingfrom purchase accounting adjustments (including inventory step-up adjustmentsrecognized in costs of sales and write-offs of in-process research anddevelopment costs), (viii) any non-cash compensation charges and deferredcompensation charges, including arising from stock options, taken during suchperiod, (ix) any other non-cash charges (other than the write-down of currentassets), impairments and expenses for such period (including amortization ofloan acquisition costs and unrealized gains and losses on Swap Contracts andgains and losses on foreign exchange (including in respect of intercompanynotes)) and (x) fees, cash charges and other cash expenses made or incurred inconnection with equity or debt financings and amendments and waivers thereto, minus(b) without duplication (i) all cash payments made during such periodon account of non-cash charges added to Consolidated Net Income pursuant toclauses (a)(viii) or (ix) above in such period or in a previous period and(ii) to the extent included in determining such Consolidated Net Income,any extraordinary gains and all non-cash items of income (other than normalaccruals in the ordinary course of business) for such period, all determined ona consolidated basis in accordance with GAAP.

 

“Confidential Information Memorandum”means the Confidential Information Memorandum dated June 29, 2007 relating tothe Borrower and the transactions contemplated by this Agreement and the otherLoan Documents.

 

“ConsolidatedInterest Coverage Ratio” means, as of any date of determination, the ratioof (a) Consolidated EBITDA for the period of the four fiscal quarters mostrecently ended for which the Borrower has delivered financial statementspursuant to Section 7.04(a) or (b) to (b) Consolidated InterestExpense for the period of the four fiscal quarters most recently ended forwhich the Borrower has delivered financial statements pursuant to Section7.04(a) or (b).

 

“ConsolidatedInterest Expense” means, for any period, the sum of (a) the interestexpense (including imputed interest expense in respect of Capital LeaseObligations and Synthetic Lease Obligations), net of cash interest income ofthe Borrower and its Subsidiaries for such period, determined on a consolidatedbasis in accordance with GAAP, plus (b) any interest accrued during suchperiod in respect of Indebtedness of the Borrower or any Subsidiary that isrequired to be capitalized rather than included in consolidated interestexpense for such period in accordance with GAAP. For purposes of the foregoing,interest expense shall be determined (a) by excluding non-cash interestexpense and amortization of deferred financing costs and original issuediscount and (b) after giving effect to any net 

 

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paymentsmade or received by the Borrower or any Subsidiary with respect to interestrate Swap Contracts.

 

“ConsolidatedLeverage Ratio” means, as of any date of determination, the ratio of (a)the total Indebtedness on a consolidated basis as of such date to (b)Consolidated EBITDA for the period of the four fiscal quarters most recentlyended for which the Borrower has delivered financial statements pursuant to Section7.04(a) or (b).

 

“Consolidated Net Income” means,for any period, the net income or loss of the Borrower and its Subsidiaries(excluding extraordinary gains and losses) for such period determined on aconsolidated basis in accordance with GAAP; provided, that there shall be excluded (a) the income of anySubsidiary to the extent that the declaration or payment of dividends orsimilar distributions by the Subsidiary of that income is not at the timepermitted by operation of the terms of its charter or any agreement,instrument, judgment, decree, statute, rule or governmental regulationapplicable to such Subsidiary, (b) the income or loss of any person accruedprior to the date it becomes a Subsidiary or is merged into or consolidatedwith the Borrower or any Subsidiary or the date that such person’s assets areacquired by the Borrower or any Subsidiary, (c) the income of any person inwhich any other person (other than the Borrower or a wholly owned Subsidiary orany director holding qualifying shares in accordance with applicable law) has ajoint interest, except to the extent of the amount of dividends or otherdistributions actually paid to the Borrower or a wholly owned Subsidiary bysuch person during such period, (d) any gains or losses attributable to salesof assets out of the ordinary course of business in excess of $2,500,000 and(e) gains and losses, realized or unrealized, relating to fluctuations incurrency values.  Notwithstandinganything set forth in clause (a) above to the contrary, a Foreign Subsidiarymay agree to restrict its ability to declare dividends or similar distributionswithout excluding the net income of such Foreign Subsidiary from ConsolidatedNet Income so long as (a) the agreement that restricts such ability relates toIndebtedness of such Foreign Subsidiary described in Section 8.01(i),(b) the proceeds thereof are used, directly or indirectly through intercompanytransfers, to prepay the Loans and (c) the net income of such ForeignSubsidiary, together with the net income of each other Foreign Subsidiarysubject to a similar restriction, does not exceed 10% of Consolidated NetIncome.

 

“ConsolidatedNet Leverage Ratio” means, as of any date of determination, the ratio of(a) the total Indebtedness (net of unrestricted cash of the Borrower and itsDomestic Subsidiaries in excess of $15,000,000) on a consolidated basis as ofsuch date to (b) Consolidated EBITDA for the period of the four fiscal quartersmost recently ended for which the Borrower has delivered financial statementspursuant to Section 7.04(a) or (b).

 

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

 

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

 

“Copyrights” has the meaning assigned to such term in the Security Agreement.

 

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

 

“CureAmount” has the meaning assigned to such term in Article IX.

 

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“CureRight” has the meaning assigned to such term in Article IX.

 

“DeMinimis Holders” means, with respect to any wholly owned Subsidiary,holders of directors’ qualifying shares and other de minimis ownershipinterests required to be owned under foreign law by local residents.

 

“DebtorRelief Laws” means the Bankruptcy Code of the United States, and all otherliquidation, conservatorship, bankruptcy, assignment for the benefit ofcreditors, moratorium, rearrangement, receivership, insolvency, reorganization,or similar debtor relief Laws of the United States or other applicablejurisdictions from time to time in effect and affecting the rights of creditorsgenerally.

 

“Default” means any event or condition that constitutes an Eventof Default or that, with the giving of any notice, the passage of time, or both(as provided in Section 9.01), would be an Event of Default.

 

“Default Rate” means (a) when used with respect to Obligationsother than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus(iii) 2% per annum; provided, however, that with respect to aEurocurrency Rate Loan, the Default Rate shall be an interest rate equal to theinterest rate (including any Applicable Rate and any Mandatory Cost) otherwiseapplicable to such Loan plus 2% per annum, in each case to the fullestextent permitted by applicable Laws and (b) when used with respect to Letter ofCredit Fees, a rate equal to the Applicable Rate plus 2% per annum.

 

“Defaulting Lender” means any Lender that (a) has failed to fundany portion of the Loans, participations in L/C Obligations or participationsin Swing Line Loans required to be funded by it hereunder within one BusinessDay of the date required to be funded by it hereunder, (b) has otherwise failedto pay over to the Administrative Agent or any other Lender any other amountrequired to be paid by it hereunder within one Business Day of the date whendue, unless the subject of a good faith dispute, or (c) has been deemedinsolvent or become the subject of a bankruptcy or insolvency proceeding.

 

“Disqualified PreferredStock” has the meaning assigned to such term in the definition of “Indebtedness.”

 

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

 

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

 

“DomesticLenders” means those Lenders with Domestic Revolving Commitments, togetherwith their successors and permitted assigns. The initial Domestic Lenders are identified on the signature pageshereto and are set out in Schedule 2.01.

 

“DomesticRevolving Commitment” means, as to each Domestic Lender, its obligation to(a) make Domestic Revolving Loans to the Borrower pursuant to Section 2.01,(b) purchase participations in L/C Obligations and (c) purchase participationsin Swing Line Loans, in an aggregate principal amount at any one timeoutstanding not to exceed the amount set forth opposite such Domestic Lender’sname on Schedule 2.01 or in the Assignment and Assumption pursuant towhich such Lender becomes a party 

 

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hereto,as applicable, as such amount may be adjusted from time to time in accordancewith this Agreement.

 

“DomesticRevolving Loan” has the meaning provided in Section 2.01(a).

 

“DomesticRevolving Note” has the meaning specified in Section 2.11(a)(i).

 

“DomesticSubsidiary” means any Subsidiary that is organized under the laws of anystate of the United States or the District of Columbia.  If a Foreign Subsidiary becomes a Guarantorand complies with the provisions of Section 7.09 as to collateral, theBorrower may elect by written notice to the Administrative Agent to treat suchSubsidiary as a Domestic Subsidiary for purposes of the Loan Documents; provided,that the Administrative Agent concludes, in its reasonable discretion, that theLenders would have substantially the same rights against such Subsidiarypursuant to the Collateral Documents under the law of the relevant foreignjurisdiction as the Lenders would have if such Subsidiary were organized in theUnited States of America.

 

“Eligible Assignee”means any Person that meets the requirements to be an assignee under Section11.06(b)(iv) and (v) (subject to such consents, if any, as may berequired under Section 11.06(b)(ii)).

 

“EMULegislation” means the legislative measures of the European Council for theintroduction of, changeover to or operation of a single or unified Europeancurrency.

 

 “EnvironmentalLaws” means all applicable Federal, state, provincial, local andforeign laws (including common law), treaties, regulations, rules, ordinances,codes, decrees, judgments, directives having the force of law and orders(including consent orders), in each case, relating to protection of theenvironment or natural resources.

 

“Environmental Liability” meansall liabilities, obligations, damages, losses, claims, actions, suits,judgments, orders, fines, penalties, fees, expenses and costs (includingadministrative oversight costs, natural resource damages and remediationcosts), arising out of or relating to (a) compliance or non-compliance with anyEnvironmental Law, (b) the generation, use, handling, transportation, storage,treatment or disposal of any Hazardous Materials, (c) exposure to any HazardousMaterials, (d) the Release of any Hazardous Materials or (e) any contract,agreement or other consensual arrangement pursuant to which liability isassumed or imposed, or for which an indemnity is granted by the Borrower or anySubsidiary, with respect to any of the foregoing.

 

“EnvironmentalPermits” means any and all permits, licenses, approvals, registrations,notifications, exemptions and any other authorization pursuant to anyEnvironmental Law.

 

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

 

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“ERISA” means the EmployeeRetirement Income Security Act of 1974, as the same may be amended from time totime.

 

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

 

“ERISA Event” means (a) any “reportableevent”, as defined in Section 4043 of ERISA or the regulations issuedthereunder, with respect to a Plan (other than an event for which the 30-daynotice period is waived); (b) the existence with respect to any Plan of an“accumulated funding deficiency” (as defined in Section 412 of theInternal Revenue Code or Section 302 of ERISA), whether or not waived; (c) thefiling pursuant to Section 412(d) of the Internal Revenue Code orSection 303(d) of ERISA of an application for a waiver of the minimumfunding standard with respect to any Plan; (d) the incurrence by theBorrower or any of its ERISA Affiliates of any liability under Title IV ofERISA with respect to the termination of any Plan or the withdrawal or partialwithdrawal of the Borrower or any of its ERISA Affiliates from any Plan orMultiemployer Plan; (e) the receipt by the Borrower or any of its ERISAAffiliates from the PBGC or a plan administrator of any notice relating to theintention to terminate any Plan or Plans or to appoint a trustee to administerany Plan; (f) the adoption of any amendment to a Plan that would requirethe provision of security pursuant to Section 401(a)(29) of the InternalRevenue Code or Section 307 of ERISA; (g) the receipt by the Borroweror any of its ERISA Affiliates of any notice, or the receipt by anyMultiemployer Plan from the Borrower or any of its ERISA Affiliates of anynotice, concerning the imposition of Withdrawal Liability or a determinationthat a Multiemployer Plan is, or is expected to be, insolvent or inreorganization, within the meaning of Title IV of ERISA; (h) theoccurrence of a “prohibited transaction” with respect to which the Borrower,any of the Subsidiaries or any ERISA Affiliate is a “disqualified person” (withinthe meaning of Section 4975 of the Internal Revenue Code) or with respectto which the Borrower or any such Subsidiary or ERISA Affiliate could otherwisebe liable; or (i) any other event or condition with respect to a Plan orMultiemployer Plan that could result in liability of the Borrower or any ERISAAffiliate.

 

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

 

“EuroLenders” means those Lenders with Euro Revolving Commitments, together withtheir successors and permitted assigns. The initial Euro Lenders are identified on the signature pages heretoand are set out in Schedule 2.01.

 

“EuroRevolving Commitment” means, as to each Euro Lender, its obligation to (a) makeEuro Revolving Loans to the Borrower pursuant to Section 2.01, inan aggregate principal amount at any one time outstanding not to exceed theamount set forth opposite such Domestic Lender’s name on Schedule 2.01or in the Assignment and Assumption pursuant to which such Lender becomes aparty hereto, as applicable, as such amount may be adjusted from time to timein accordance with this Agreement.

 

“EuroRevolving Loan” has the meaning provided in Section 2.01(b).

 

“EuroRevolving Note” has the meaning specified in Section 2.11(a)(ii).

 

“EurocurrencyBase Rate” means, for any Interest Period with respect to a EurocurrencyRate Loan, the rate per annum equal to the British Bankers Association LIBORRate (“BBA LIBOR”), as published by Reuters (or other commerciallyavailable source providing quotations of BBA LIBOR as designated by theAdministrative Agent from time to time) at approximately 11:00 a.m.,London time, 

 

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twoBusiness Days prior to the commencement of such Interest Period, for Dollardeposits (for delivery on the first day of such Interest Period) with a termequivalent to such Interest Period.  Ifsuch rate is not available at such time for any reason, then the “EurocurrencyBase Rate” for such Interest Period shall be the rate per annum determined bythe Administrative Agent to be the rate at which deposits in Dollars fordelivery on the first day of such Interest Period in same day funds in theapproximate amount of the Eurocurrency Rate Loan being made, continued orconverted by Bank of America and with a term equivalent to such Interest Periodwould be offered by Bank of America’s London Branch to major banks in theLondon interbank eurocurrency market at their request at approximately 11:00 a.m.(London time) two Business Days prior to the commencement of such InterestPeriod.

 

“EurocurrencyRate” means, for any Interest Period with respect to any Eurocurrency RateLoan, a rate per annum determined by the Administrative Agent to be equal tothe quotient obtained by dividing (a) the Eurocurrency Base Rate for suchEurocurrency Rate Loan for such Interest Period by (b) one minusthe Eurocurrency Reserve Percentage for such Eurocurrency Rate Loan for suchInterest Period.

 

“EurocurrencyRate Loan” means a Loan that bears interest at a rate based on theEurocurrency Rate.  Eurocurrency RateLoans may be denominated in Dollars or in the Alternative Currency.  All Loans denominated in the AlternativeCurrency must be Eurocurrency Rate Loans.

 

“EurocurrencyReserve Percentage” means, for any day during any Interest Period, thereserve percentage (expressed as a decimal, carried out to five decimal places)in effect on such day, whether or not applicable to any Lender, underregulations issued from time to time by the FRB for determining the maximumreserve requirement (including any emergency, supplemental or other marginalreserve requirement) with respect to Eurocurrency funding (currently referredto as “Eurocurrency liabilities”).  TheEurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjustedautomatically as of the effective date of any change in the EurocurrencyReserve Percentage.

 

“Eventof Default” has the meaning specified in Section 9.01.

 

“Excluded Property” with respect to any Loan Party, includingany Person that becomes a Loan Party after the Closing Date as contemplated by Section 7.09,(a) any owned real or personal property which is located outside of theUnited States, (b) all leased real property, (c) any personal property(including, without limitation, motor vehicles) in respect of which perfectionof a Lien is not either (i) governed by the Uniform Commercial Code or (ii) effectedby appropriate evidence of the Lien being filed in either the United StatesCopyright Office or the United States Patent and Trademark Office, (d) theEquity Interests of any direct Foreign Subsidiary of a Loan Party to the extentnot pledged as of the Closing Date or not required to be pledged to secure theObligations pursuant to Section 7.09, (e) any property which,subject to the terms of Section 7.09(b), is subject to a Lien ofthe type described in Section 8.02(a), Section 8.02(c) or8.02(s) (but only to the extent and for so long as the grant of asecurity interest in such property would violate the documentation governingsuch Lien), (f) all Equity Interests in Spinneybeck Ireland, an Irishcorporation, (g) assets sold to a Person that is not a Loan Party to theextent such sale is permitted hereunder, (h) assets owned by a Guarantorafter the release of the guarantee pursuant to Section 10.10, (i) licenses,contracts and agreements which contain a valid and enforceable prohibition onthe creation of a security interest therein so long as such prohibition remainsin effect and is valid notwithstanding anti-assignment override provisions ofthe Uniform Commercial Code, and (j) any other asset, if any, as to whichthe Administrative Agent has determined in its reasonable discretion that thecost of obtaining a security interest in such asset (including mortgage, stamp,intangibles or other tax) are excessive in relation to the benefit of theLenders of the security afforded thereby.

 

“Excluded Taxes” means, with respect to the AdministrativeAgent, any Lender, the L/C Issuer or any other recipient of any payment to bemade by or on account of any obligation of the Borrower hereunder, 

 

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(a) taxes imposed on or measured by its overall net income(however denominated), and franchise taxes imposed on it (in lieu of net incometaxes), by the jurisdiction (or any political subdivision thereof) under thelaws of which such recipient is organized or in which its principal office islocated or, in the case of any Lender, in which its applicable Lending Officeis located, (b) any branch profits taxes imposed by the United States orany similar tax imposed by any other jurisdiction in which the Borrower islocated and (c) in the case of a Foreign Lender (other than an assigneepursuant to a request by the Borrower under Section 11.13), anywithholding tax that is imposed on amounts payable to such Foreign Lender atthe time such Foreign Lender becomes a party hereto (or designates a newLending Office) or is attributable to such Foreign Lender’s failure orinability (other than as a result of a Change in Law) to comply with Section 3.01(e),except to the extent that such Foreign Lender (or its assignor, if any) wasentitled, at the time of designation of a new Lending Office (or assignment),to receive additional amounts from the Borrower with respect to suchwithholding tax pursuant to Section 3.01(a).

 

“ExecutiveOrder” has the meaning assigned to such term in Section 6.24.

 

“Existing Credit Agreement” means that certain Credit Agreementdated as of October 3, 2005 among the Borrower, the lenders party thereto,UBS Securities LLC, as syndication agent, Bank of America, as administrativeagent, UBS AG, Stamford Branch, as an issuing bank, UBS Securites LLC and BAS,as joint lead arrangers and joint bookrunners, and CitiBank, F.S.B.,Manufacturers and Traders Trust Company and Harris N.A., as co-documentationagents, as amended or modified from time to time.

 

“ExistingLetters of Credit” means the letters of credit described by date ofissuance, letter of credit number, undrawn amount, name of beneficiary and dateof expiry on Schedule 1.01(b).

 

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

 

“FeeLetter” means the letter agreement, dated May 24, 2007****among the Borrower, Bank of America and BAS.

 

“Fees” means the Commitment Fees,the Letter of Credit Fees and any other fees payable by a Loan Party pursuantto a fee agreement entered into with the Administrative Agent or any otherLender.

 

“Financial Performance Covenant” has themeaning specified in Section 9.01.

 

“FirstTier Foreign Subsidiary” means each Foreign Subsidiary that is owneddirectly by any Loan Party.

 

“ForeignAssets Control Regulations” has the meaning assigned to such term in Section 6.24.

 

“Foreign Lender” means any Lender that isorganized under the laws of a jurisdiction other than that in which theBorrower is resident for tax purposes. For purposes of this definition, the United States, each State thereofand the District of Columbia shall be deemed to constitute a singlejurisdiction.

 

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“ForeignSubsidiary” means any Subsidiary that is not a Domestic Subsidiary.

 

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

 

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

 

“GAAP”means generally accepted accounting principles in the United States set forthin the opinions and pronouncements of the Accounting Principles Board and theAmerican Institute of Certified Public Accountants and statements andpronouncements of the Financial Accounting Standards Board, consistentlyapplied and as in effect from time to time.

 

“GovernmentalAuthority” means the government of the United States or any other nation,or of any political subdivision thereof, whether state or local, and anyagency, authority, instrumentality, regulatory body, court, central bank orother entity exercising executive, legislative, judicial, taxing, regulatory oradministrative powers or functions of or pertaining to government (includingany supra-national bodies such as the European Union or the European CentralBank).

 

“GSATransaction” means the transactions and legal arrangements included in (a) thePurchase and Assignment Agreement dated as of November 7, 1997 by andbetween General Electric Capital Corporation (d/b/a Potomac Federal) and theBorrower, as modified, supplemented and amended from time to time (with thereasonable consent of the Administrative Agent if such modification, supplementor amendment (i) changes the nature or character of the arrangement or (ii) containsany material increase in the burden of the Borrower or its Subsidiaries underthe arrangement), and (b) any other agreement between the Borrower or itsSubsidiaries and other parties approved by the Administrative Agent (suchapproval not to be unreasonably withheld) providing comparable arrangementswith the United States government.

 

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

 

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“Guarantors”means each Domestic Subsidiary of the Borrower identified as a “Guarantor” onthe signature pages hereto and each other Person that joins as a Guarantorpursuant to Section 7.09, together with their successors andpermitted assigns.

 

“Guaranty”means the Guaranty made by the Guarantors in favor of the Administrative Agentand the Lenders pursuant to Article IV.

 

“Hazardous Materials” means (a) anypetroleum products or byproducts and all other hydrocarbons, coal ash, radongas, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls,mold, radioactive materials, chlorofluorocarbons and all other ozone-depletingsubstances and (b) any chemical, material, substance or waste of any kindthat is prohibited or regulated as hazardous by or pursuant to, or that couldgive rise to liability under, any Environmental Law.

 

“HonorDate” has the meaning set forth in Section 2.03(c).

 

“Incremental Term Loan” has the meaningspecified in Section 2.01(c).

 

“Indebtedness” of any personmeans, without duplication, (a) all obligations of such person forborrowed money, (b) all obligations of such person evidenced by bonds,debentures, notes or similar instruments, (c) all obligations of suchperson under conditional sale or other title retention agreements relating toproperty or assets purchased by such person, (d) all obligations of suchperson issued or assumed as the deferred purchase price of property or services(excluding trade accounts payable and accrued obligations incurred in theordinary course of business), (e) all Indebtedness of others secured by(or for which the holder of such Indebtedness has an existing right, contingentor otherwise, to be secured by) any Lien on property owned or acquired by suchperson, whether or not the obligations secured thereby have been assumed (itbeing understood that, unless such person shall have assumed such obligations,the amount of such Indebtedness shall be the lesser of (x) the fair marketvalue of the property securing such Indebtedness and (y) the statedprincipal amount of such Indebtedness), (f) all Guarantees by such personof Indebtedness of others, (g) all Capital Lease Obligations and SyntheticLease Obligations of such person, (h) all outstanding reimbursementobligations of such person as an account party in respect of letters of credit,(i) all obligations of such person in respect of bankers’ acceptances,(j) all obligations of such person under or in respect of Swap Contractsand (k) the liquidation value of all redeemable preferred Equity Interestsof such person, to the extent mandatorily redeemable in cash (other than as aresult of a change of control if the documentation regarding such preferredEquity Interests provides for no payment unless, prior to any such payment, allLoans and other Obligations under this Agreement and the other Loan Documentsare paid in full in cash or the Lenders consent to such payment) on or prior tothe Maturity Date (“Disqualified Preferred Stock”). For purposes ofdetermining the amount of Indebtedness of any person under clause (j) ofthe preceding sentence, the amount of the obligations of such person in respectof any Swap Contract at any time shall be zero prior to the time anycounterparty to such Swap Contract shall be entitled to terminate such SwapContract and, thereafter, shall be the maximum aggregate amount (giving effectto any netting agreements) that such person would be required to pay if suchSwap Contract were terminated at such time. The Indebtedness of any person shall include the Indebtedness of anypartnership in which such person is a general partner only to the extent suchperson is liable therefor by contract, as a matter of law or otherwise, andshall not include any Indebtedness of such partnership that is expresslynon-recourse to such person.  Forclarification purposes, the liability of the Borrower or any Guarantor to makeany periodic payments to licensors in consideration for the license of Patentsand technical information under license agreements and any amount payable inrespect of a settlement of disputes with respect to such payments thereunder,shall not constitute Indebtedness. Notwithstanding any other provision of this Agreement to the contrary, (i) theterm “Indebtedness” shall not be deemed to include (a) any earn-outobligation until such obligation becomes a liability on the balance sheet ofthe applicable person, (b) any deferred 

 

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compensationarrangements, (c) any non compete or consulting obligations incurred inconnection with Permitted Acquisitions, (d) “teaming agreements” pursuantto which the Borrower or any Subsidiary agrees with another supplier ofservices to provide services (including the sale of inventory) to a thirdperson and pursuant to such agreement shall be responsible to the third personfor the performance of the obligations of such other supplier, (e) warrantyclaims, (f) product guarantees, guarantees (including performanceguarantees or bonds) by a person of obligations not constituting Indebtednessof the Borrower or any Subsidiary, (g) obligations under joint developmentagreements pursuant to which the Borrower or any Subsidiary agrees to develop aproduct and (ii) the amount of Indebtedness for which recourse is limited eitherto a specified amount or to an identified asset of such person shall be deemedto be equal to such specified amount or the fair market value of suchidentified asset, as the case may be, and (h) obligations under any GSATransaction.

 

“Indemnified Taxes” means Taxes other thanExcluded Taxes.

 

“Indemnitees” has the meaning specified in Section 11.04(b).

 

“Information” has the meaning specified in Section 11.07.

 

“IntellectualProperty” has the meaning assigned to such term in Section 6.07(d).

 

“InterestPayment Date” means (a) as to any Eurocurrency Rate Loan, the last dayof each Interest Period applicable to such Loan and the Maturity Date; provided,however, that if any Interest Period for a Eurocurrency Rate Loanexceeds three months, the respective dates that fall every three months afterthe beginning of such Interest Period shall also be Interest Payment Dates; and(b) as to any Base Rate Loan (including a Swing Line Loan), the lastBusiness Day of each March, June, September and December and theMaturity Date.

 

“InterestPeriod” means, as to each Eurocurrency Rate Loan, the period commencing onthe date such Eurocurrency Rate Loan is disbursed or converted to or continuedas a Eurocurrency Rate Loan and ending on the date one, two, three or six monthsthereafter, as selected by the Borrower in its Loan Notice, or nine or twelvemonths thereafter, as requested by the Borrower and consented to by all of theLenders; provided that:

 

(i)            any Interest Period that would otherwise end on aday that is not a Business Day shall be extended to the next succeedingBusiness Day unless such Business Day falls in another calendar month, in whichcase such Interest Period shall end on the next preceding Business Day;

 

(ii)           any Interest Period that begins on the last BusinessDay of a calendar month (or on a day for which there is no numericallycorresponding day in the calendar month at the end of such Interest Period)shall end on the last Business Day of the calendar month at the end of suchInterest Period;

 

(iii)          no InterestPeriod shall extend beyond the Maturity Date.

 

“InterimFinancial Statements” has the meaning set forth in Section 5.01(c)(ii).

 

“Internal Revenue Code” means the InternalRevenue Code of 1986.

 

“InvoluntaryDisposition” means any loss of, damage to or destruction of, or anycondemnation or other taking for public use of, any property of any Loan Partyor any of its Subsidiaries.

 

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“IRS” means the United States InternalRevenue Service.

 

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

 

“IssuerDocuments” means with respect to any Letter of Credit, the Letter of CreditApplication, and any other document, agreement and instrument entered into bythe L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/CIssuer and relating to any such Letter of Credit.

 

“JoinderAgreement” means a joinder agreement substantially in the form of Exhibit 7.09executed and delivered by a Domestic Subsidiary in accordance with theprovisions of Section 7.09.

 

“KnollEurope” means Knoll Europe B.V., a Netherlands company.

 

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

 

“L/CAdvance” means, with respect to each Domestic Lender, such Domestic Lender’sfunding of its participation in any L/C Borrowing in accordance with itsApplicable Percentage.

 

“L/CBorrowing” means an extension of credit resulting from a drawing under anyLetter of Credit which has not been reimbursed on the date when made orrefinanced as a Borrowing of Domestic Revolving Loans.

 

“L/CCredit Extension” means, with respect to any Letter of Credit, the issuancethereof or extension of the expiry date thereof, or the increase of the amountthereof.

 

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

 

“L/CObligations” means, as at any date of determination, the aggregate amountavailable to be drawn under all outstanding Letters of Credit plus theaggregate of all Unreimbursed Amounts, including all L/C Borrowings.  For purposes of computing the amountavailable to be drawn under any Letter of Credit, the amount of such Letter ofCredit shall be determined in accordance with Section 1.07.  For allpurposes of this Agreement, if on any date of determination a Letter of Credithas expired by its terms but any amount may still be drawn thereunder by reasonof the operation of Rule 3.14 of the ISP, such Letter of Credit shall bedeemed to be “outstanding” in the amount so remaining available to be drawn.

 

“Lenders”means each of the Persons identified as a “Lender” on the signature pages heretoand their successors and assigns and, as the context requires, includes theSwing Line Lender.

 

“LendingOffice” means, as to any Lender, the office or offices of such Lenderdescribed as such in such Lender’s Administrative Questionnaire, or such otheroffice or offices as a Lender may from time to time notify the Borrower and theAdministrative Agent.

 

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“Letterof Credit” means any standby letter of credit issued hereunder by the L/CIssuer and shall include the Existing Letters of Credit.

 

“Letterof Credit Application” means an application and agreement for the issuanceor amendment of a letter of credit in the form from time to time in use by theL/C Issuer.

 

“Letterof Credit Expiration Date” means the date which is thirty days prior to theMaturity Date (or, if such date is not a Business Day, the next precedingBusiness Day) unless prior to such time the Borrower provided Cash Collateralto the Administrative Agent in an amount equal to 105% of the face amount ofall Letters of Credit expiring after the thirtieth day prior to the MaturityDate, in which case the expiry date of such Letters of Credit shall be no laterthan the first anniversary of the Maturity Date.

 

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

 

“Letterof Credit Sublimit” means an amount equal to the lesser of (a) theAggregate Revolving Commitments and (b) $50,000,000.  The Letter of Credit Sublimit is part of, andnot in addition to, the Aggregate Revolving Commitments.

 

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

 

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

 

“LoanDocuments” means this Agreement, each Note, each Issuer Document, eachJoinder Agreement, the Collateral Documents and the Fee Letter.

 

“LoanNotice” means a notice of (a) a Borrowing of Loans, (b) aconversion of Loans from one Type to the other, or (c) a continuation ofEurocurrency Rate Loans, in each case pursuant to Section 2.02(b),which, if in writing, shall be substantially in the form of Exhibit 2.02.

 

“LoanParties” means, collectively, the Borrower and each Guarantor.

 

“MandatoryCost” means, with respect to any period, the percentage rate per annumdetermined in accordance with Schedule 1.01(a).

 

“Margin Stock” has the meaningassigned to such term in Regulation U.

 

“MaterialAdverse Effect” means (a) a material adverse change in, or a materialadverse effect on, the business, operations, assets, financial condition orresults of operations of the Borrower and the Subsidiaries, taken as a whole or(b) a material adverse effect upon the legality, validity, binding effector enforceability against the Borrower or any other Loan Party under any LoanDocument to which it is or will be a party.

 

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“Material Indebtedness” meansIndebtedness (other than the Loans and Letters of Credit) of any one or more ofthe Borrower and the Subsidiaries in an aggregate principal amount exceeding$20,000,000.

 

“MaterialSubsidiary” means, at any time, any Subsidiary which at such timeshall be a “significant subsidiary” of the Borrower within the meaning ofRegulation S-X of the SEC as in effect on the date hereof; provided,that the Borrower agrees that the Borrower and its Material Subsidiaries shallat all times have assets during the term of this Agreement constituting atleast 90% of the Borrower’s consolidated total assets; provided, further,that each Subsidiary which owns any Intellectual Property (other thanIntellectual Property with an aggregate fair market value of less than$1,500,000) shall be deemed to be a Material Subsidiary hereunder.

 

“MaturityDate” means June 29, 2013.

 

“MaximumPermitted Revolving Outstandings” means FIVE HUNDRED MILLION DOLLARS($500,000,000).

 

“MaximumRate” has the meaning specified in Section 11.09.

 

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

 

“MortgagedProperty” means any real property that is owned or leased by a Loan Partyand is subject to a Mortgage.

 

“Mortgages”means the mortgages, deeds of trust or deeds to secure debt that purport togrant to the Administrative Agent, for the benefit of the holders of theObligations, a security interest in the fee interest and/or leasehold interestsof any Loan Party in real property (other than Excluded Property).

 

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

 

“Note”or “Notes” means the Domestic Revolving Notes, the Euro Revolving Notesand/or the Swing Line Note, individually or collectively, as appropriate.

 

“Obligations”means all advances to, and debts, liabilities, obligations, covenants andduties of, any Loan Party arising under any Loan Document or otherwise withrespect to any Loan or Letter of Credit, whether direct or indirect (includingthose acquired by assumption), absolute or contingent, due or to become due,now existing or hereafter arising and including interest and fees that accrueafter the commencement by or against any Loan Party or any Affiliate thereof ofany proceeding under any Debtor Relief Laws naming such Person as the debtor insuch proceeding, regardless of whether such interest and fees are allowedclaims in such proceeding. The foregoing shall also include, unless the partiesthereto agree otherwise, (a) all obligations under any Swap Contractbetween any Loan Party and any Lender or Affiliate of a Lender that ispermitted to be incurred pursuant to Section 8.01(d) and (b) allobligations under any Treasury Management Agreement between any Loan Party andany Lender or Affiliate of a Lender.

 

“OrganizationDocuments” means, (a) with respect to any corporation, the certificateor articles of incorporation and the bylaws (or equivalent or comparableconstitutive documents with respect to any non-U.S. jurisdiction); (b) withrespect to any limited liability company, the certificate or articles offormation or organization and operating agreement; and (c) with respect toany partnership, joint venture, trust or other form of business entity, thepartnership, joint venture or other applicable agreement of formation ororganization and any agreement, instrument, filing or notice with respectthereto filed in 

 

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connectionwith its formation or organization with the applicable Governmental Authorityin the jurisdiction of its formation or organization and, if applicable, anycertificate or articles of formation or organization of such entity.

 

“OtherTaxes” means all present or future stamp or documentary taxes or any otherexcise or property taxes, charges or similar levies arising from any paymentmade hereunder or under any other Loan Document or from the execution, deliveryor enforcement of, or otherwise with respect to, this Agreement or any otherLoan Document.

 

“OutstandingAmount” means (i) with respect to any Loans on any date, the aggregateoutstanding principal amount thereof after giving effect to any borrowings andprepayments or repayments of any Loans occurring on such date; and (ii) withrespect to any L/C Obligations on any date, the amount of such L/C Obligationson such date after giving effect to any L/C Credit Extension occurring on suchdate and any other changes in the aggregate amount of the L/C Obligations as ofsuch date, including as a result of any reimbursements by the Borrower ofUnreimbursed Amounts.

 

“Overnight Rate” means, for any day,(a) with respect to any amount denominated in Dollars, the greater of(i) the Federal Funds Rate and (ii) an overnight rate determined bythe Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the casemay be, in accordance with banking industry rules on interbankcompensation, and (b) with respect to any amount denominated in theAlternative Currency, the rate of interest per annum at which overnightdeposits in the Alternative Currency, in an amount approximately equal to theamount with respect to which such rate is being determined, would be offered forsuch day by a branch or Affiliate of Bank of America in the applicable offshoreinterbank market for such currency to major banks in such interbank market.

 

“Participant” has the meaning specified in Section 11.06(d).

 

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

 

“Patents” has the meaning assigned to such term in Security Agreement.

 

“PBGC” means the Pension Benefit GuarantyCorporation referred to an defined in ERISA or any successor thereto.

 

“Permitted Acquisition” has themeaning specified in Section 8.04(h).

 

“Pennsylvania Property” means thatcertain real property owned by the Borrower and located in the Borough of EastGreenville, Montgomery County, Pennsylvania.

 

“PermittedCure Securities” has the meaning specified in Article IX.

 

“Permitted Investments” means:

 

(a)           directobligations of, or obligations the principal of and interest on which areunconditionally guaranteed by, the United States of America (or by any agencythereof to the extent such obligations are backed by the full faith and creditof the United States of America) or, in the case of a Foreign Subsidiary,marketable direct obligations issued by or unconditionally guaranteed by thegovernment of the country of such Foreign Subsidiary or backed by the fullfaith and credit of the government of the country of such Foreign Subsidiary,in each case maturing within one year from the date of acquisition thereof;

 

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(b)           investments incommercial paper maturing within one year from the date of acquisition thereofand having, at such date of acquisition, one of the two highest credit ratingsobtainable from S&P or from Moody’s or carrying an equivalent rating by anationally recognized rating agency, if both of the two named rating agenciescease publishing ratings of investments;

 

(c)           investments incertificates of deposit, Eurocurrency deposits, overnight bank deposits orbanker’s acceptances, demand deposits and time deposits maturing within oneyear from the date of acquisition thereof issued or guaranteed by or placedwith, and money market deposit accounts issued or offered by, theAdministrative Agent or any domestic office of any Lender or any othercommercial bank organized under the laws of the United States of America or anyState thereof that has a combined capital and surplus and undivided profits ofnot less than $500,000,000 or issued by or offered by a bank organized underthe laws of any foreign country recognized by the United States the long-termdebt of which is rated at least “A” or the equivalent by S&P or “A” or theequivalent thereof by Moody’s having at the date of acquisition thereofcombined capital and surplus of not less than $500,000,000 or the foreigncurrency equivalent thereof;

 

(d)           fullycollateralized repurchase agreements with a term of not more than 30 days forsecurities described in clause (a) above and entered into with a financialinstitution satisfying the criteria of clause (c) above;

 

(e)           investments inmarketable direct obligations issued by any state of the United States ofAmerica or any political subdivision of any such state or any publicinstrumentality thereof  maturing withinone year from the date of acquisition thereof and having, at such date ofacquisition, one of the two highest credit ratings obtainable from S&P orfrom Moody’s;

 

(f)            investments in “moneymarket funds” within the meaning of Rule 2a-7 of the Investment CompanyAct of 1940, as amended, substantially all of whose assets are invested ininvestments of the type described in clauses (a) through (e) above;

 

(g)           othershort-term investments utilized by Foreign Subsidiaries in accordance withnormal investment practices for cash management in investments of a typeanalogous to the foregoing; and

 

(h)           solely withrespect to any Foreign Subsidiary, non-Dollar denominated (i) certificatesof deposit of, bankers acceptances of, or time deposits with, any commercialbank which is organized and existing under the laws of the country in whichsuch Foreign Subsidiary maintains its chief executive office and principalplace of business provided such country is a member of the Organization forEconomic Cooperation and Development, and whose short-term commercial paper ratingfrom S&P is at least A-1 or the equivalent thereof or from Moody’s is atleast P-1 or the equivalent thereof (any such bank being an “Approved Foreign Bank”) andmaturing within twelve (12) months of the date of acquisition and (ii) equivalentsof demand deposit accounts which are maintained with an Approved Foreign Bank.

 

“PermittedLiens” means, at any time, Liens in respect of property of any Loan Partyor any of its Subsidiaries permitted to exist at such time pursuant to theterms of Section 8.02.

 

“Person”means any natural person, corporation, limited liability company, trust, jointventure, association, company, partnership, Governmental Authority or otherentity.

 

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“Plan” means any employee pension benefit plan (other than a MultiemployerPlan) subject to the provisions of Title IV of ERISA or Section 412of the Internal Revenue Code or Section 302 of ERISA, and in respect ofwhich 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” asdefined in Section 3(5) of ERISA.

 

“Platform”has the meaning specified in Section 7.04.

 

“Pro Forma Basis” means, for purposes of calculating theFinancial Performance Covenants (including for purposes of determining theApplicable Rate), that any Disposition, Involuntary Disposition,Acquisition or Restricted Payment shall be deemed to have occurred as of thefirst day of the most recent four fiscal quarter period preceding the date ofsuch transaction for which the Borrower was required to deliver financialstatements pursuant to Section 7.04(a) or (b).  In connection with the foregoing, (a) withrespect to any Disposition or Involuntary Disposition, income statement andcash flow statement items (whether positive or negative) attributable to theproperty disposed of shall be excluded to the extent relating to any periodoccurring prior to the date of such transaction and (b) with respect toany Acquisition, income statement items attributable to the Person or propertyacquired shall be included to the extent relating to any period applicable insuch calculations to the extent (A) such items are not otherwise includedin such income statement items for the Borrower and its Subsidiaries inaccordance with GAAP or in accordance with any defined terms set forth in Section 1.01and (B) such items are supported by financial statements or otherinformation reasonably satisfactory to the Administrative Agent and (ii) anyIndebtedness incurred or assumed by the Borrower or any Subsidiary (includingthe Person or property acquired) in connection with such transaction (A) shallbe deemed to have been incurred as of the first day of the applicable periodand (B) if such Indebtedness has a floating or formula rate, shall have animplied rate of interest for the applicable period for purposes of thisdefinition determined by utilizing the rate which is or would be in effect withrespect to such Indebtedness as at the relevant date of determination.  In connection with any Permitted Acquisition,the Borrower shall be permitted to assume cost savings certified by aResponsible Officer of the Borrower and expected to be achieved within atwelve-month period following the closing of such Permitted Acquisition if theconsolidated balance sheet of such acquired person and its consolidatedSubsidiaries as at the end of the fiscal period preceding the acquisition ofsuch person and the related consolidated statements of income and stockholders’equity and of cash flows for the period in respect of which Consolidated EBITDAis to be calculated (x) have been previously provided to theAdministrative Agent and (y) either (1) have been reported on withouta qualification arising out of the scope of the audit by independent certifiedpublic accountants of nationally recognized standing or (2) have beenfound acceptable by the Administrative Agent. For purposes of determining compliance with the covenants set forth in Section 8.11(and the computations made for purposes of determining the Applicable Rate),all calculations shall be made on a Pro Forma Basis after giving effect to theTransactions, (subject, in the case of the Transactions, to the limitationscontained in clause (a)(iv) of the definition of Consolidated EBITDA).

 

“Pro Forma Compliance” means, at any date of determination, that the Borrower shall be in proforma compliance with the covenants set forth in Section 8.11 as ofthe date of such determination or the last day of the most recent fiscal quarter-end,as the case may be (computed on the basis of (a) balance sheet amounts asof such date and (b) income statement amounts for the most recentlycompleted period of four consecutive fiscal quarters for which financialstatements shall have been delivered to the Administrative Agent and calculatedon a Pro Forma Basis in respect of the event giving rise to suchdetermination).

 

“Pro Forma Compliance Certificate” means a certificate of aResponsible Officer of the Borrower containing reasonably detailed calculationsof the Financial Performance Covenants as of the most recent fiscal quarter endfor which the Borrower was required to deliver financial statements pursuant toSection 7.04(a) or (b) after giving effect to theapplicable transaction on a Pro Forma Basis.

 

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“Public Lender” has the meaning specified in Section 7.04.

 

“Register” has the meaning specified in Section 11.06(c).

 

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

 

“Release” means any release, spill, emission, leaking, dumping, injection,pouring, deposit, disposal, discharge, dispersal, leaching or migration into orthrough the environment or within, under, from or upon any building, structure,facility or fixture.

 

“Releaseof Collateral Event” means any time that (a) no Event of Default hasoccurred and is continuing and (b) the Borrower simultaneously maintainsthe Requisite Ratings.

 

“Requestfor Credit Extension” means (a) with respect to a Borrowing,conversion or continuation of Loans, a Loan Notice, (b) with respect to anL/C Credit Extension, a Letter of Credit Application and (c) with respectto a Swing Line Loan, a Swing Line Loan Notice.

 

“RequiredDomestic Lenders” means, at any time, Domestic Lenders holding in theaggregate more than 50% of (a) the unfunded Aggregate Domestic RevolvingCommitments and the outstanding Domestic Revolving Loans, L/C Obligations andparticipations therein or (b) if the Aggregate Domestic RevolvingCommitments have been terminated, the outstanding Domestic Revolving Loans, L/CObligations and participations therein. The unfunded Domestic Revolving Commitments of, and the outstandingDomestic Revolving Loans held or deemed held by, any Defaulting Lender shall beexcluded for purposes of making a determination of Required Domestic Lenders.

 

“RequiredEuro Lenders” means, at any time, Euro Lenders holding in the aggregatemore than 50% of (a) the unfunded Aggregate Euro Revolving Commitments andthe outstanding Euro Revolving Loans or (b) if the Aggregate EuroRevolving Commitments have been terminated, the outstanding Euro RevolvingLoans.  The unfunded Euro RevolvingCommitments of, and the outstanding Euro Revolving Loans held or deemed heldby, any Defaulting Lender shall be excluded for purposes of making adetermination of Required Euro Lenders.

 

“RequiredLenders” means, at any time, Lenders holding in the aggregate more than 50%of (a) the unfunded Commitments and the outstanding Loans, L/C Obligationsand participations therein or (b) if the Commitments have been terminated,the outstanding Loans, L/C Obligations and participations therein.  The unfunded Commitments of, and theoutstanding Loans held or deemed held by, any Defaulting Lender shall beexcluded for purposes of making a determination of Required Lenders.

 

“RequisiteRatings” means (a) a corporate rating on the Borrower’s seniorunsecured (non-credit enhanced) debt of at least BBB- from S&P or anequivalent rating from S&P in the event S&P changes its rating systemand (b) a corporate family rating on the Borrower senior unsecured(non-credit enhanced) debt of at least Baa3 from Moody’s or an equivalentrating from Moody’s in the event Moody’s changes its rating system.

 

“ResponsibleOfficer” means the chief executive officer, president or chief financialofficer of a Loan Party or the Manager, Credit and Collections, of theBorrower.  Any document deliveredhereunder that is signed by a Responsible Officer of a Loan Party shall beconclusively presumed to have been authorized by all necessary corporate,partnership and/or other action on the part of such Loan Party and suchResponsible Officer shall be conclusively presumed to have acted on behalf ofsuch Loan Party.

 

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“RestrictedIndebtedness” means Indebtedness of the Borrower or any Subsidiary, thepayment, prepayment, repurchase or defeasance of which is restricted under Section 8.09(b).

 

“Restricted Payment” means any dividend or other distribution (whether in cash, securitiesor other property, but excluding any payment in Equity Interests (other thanDisqualified Preferred Stock) in the Borrower) with respect to any EquityInterests in the Borrower or any Subsidiary, or any payment (whether in cash,securities or other property, other than a payment in Equity Interests (otherthan Disqualified Preferred Stock) in the Borrower), including any sinking fundor similar deposit, on account of the purchase, redemption, retirement,acquisition, cancellation or termination of any Equity Interests in theBorrower or any Subsidiary or any option, warrant or other right to acquire anysuch Equity Interests in the Borrower or any Subsidiary.

 

“RevaluationDate” means (a) with respect to any Loan, each of the following:  (i) each date of a Borrowing of aEurocurrency Rate Loan denominated in the Alternative Currency, (ii) eachdate of a continuation of a Eurocurrency Rate Loan denominated in theAlternative Currency pursuant to Section 2.02, and (iii) suchadditional dates as the Administrative Agent shall determine or the RequiredLenders shall require; and (b) with respect to any Letter of Credit, eachof the following:  (i) each date ofissuance of a Letter of Credit denominated in the Alternative Currency,(ii) each date of an amendment of any such Letter of Credit having theeffect of increasing the amount thereof (solely with respect to the increasedamount), (iii) each date of any payment by the L/C Issuer under any Letterof Credit denominated in the Alternative Currency, and (v) such additionaldates as the Administrative Agent or the L/C Issuer shall determine.

 

“RevolvingCommitment” means the Domestic Revolving Commitments and/or the EuroRevolving Commitments, as appropriate.

 

“RevolvingLoan” means the Domestic Revolving Loan and/or the Euro Revolving Loan, asappropriate.

 

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

 

“SameDay Funds” means (a) with respect to disbursements and payments inDollars, immediately available funds, and (b) with respect todisbursements and payments in the Alternative Currency, same day or other fundsas may be determined by the Administrative Agent or the L/C Issuer, as the casemay be, to be customary in the place of disbursement or payment for thesettlement of international banking transactions in the Alternative Currency.

 

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

 

“SecurityAgreement” means the pledge and security agreement dated as of the ClosingDate executed in favor of the Administrative Agent, for the benefit of theholders of the Obligations, by each of the Loan Parties, as amended or modifiedfrom time to time in accordance with the terms hereof.

 

“SpotRate” for a currency means the rate determined by the Administrative Agentor the L/C Issuer, as applicable, to be the rate quoted by the Person acting insuch capacity as the spot rate for the purchase by such Person of such currencywith another currency through its principal foreign exchange trading office atapproximately 11:00 a.m. on the date two Business Days prior to the dateas of which the foreign exchange computation is made; provided that theAdministrative Agent or the L/C Issuer may 

 

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obtainsuch spot rate from another financial institution designated by theAdministrative Agent or the L/C Issuer if the Person acting in such capacitydoes not have as of the date of determination a spot buying rate for any suchcurrency; and provided further that the L/C Issuer may use such spot rate quotedon the date as of which the foreign exchange computation is made in the case ofany Letter of Credit denominated in the Alternative Currency.

 

“Subsidiary”of a Person means a corporation, partnership, joint venture, limited liabilitycompany or other business entity of which a majority of the shares of VotingStock is at the time beneficially owned, or the management of which isotherwise controlled, directly, or indirectly through one or moreintermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” orto “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Borrower.

 

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

 

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

 

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

 

“SwingLine Loan Notice” means a notice of a Borrowing of Swing Line Loanspursuant to Section 2.04(b), which, if in writing, shall besubstantially in the form of Exhibit 2.04.

 

“SwingLine Note” has the meaning specified in Section 2.11(a)(iii).

 

“SwingLine Sublimit” means an amount equal to the lesser of (a) $10,000,000****and (b) the Aggregate Revolving Commitments.  The Swing Line Sublimit is part of, and notin addition to, the Aggregate Revolving Commitments.

 

“SyntheticLease” means, as to any Person, any lease (including leases that may beterminated by the lessee at any time) of any property (whether real, personalor mixed) (a) that is accounted for as an operating lease under GAAP and (b) inrespect of which the lessee retains or obtains ownership of the property soleased for U.S. federal income tax purposes, other than any such lease underwhich such person is the lessor.

 

“SyntheticLease Obligations” means, as to any Person, an amount equal to the sum of (a) theobligations of such Person to pay rent or other amounts under any SyntheticLease which are attributable to principal and, without duplication, (b) theamount of any purchase price payment under any Synthetic Lease assuming thelessee exercises the option to purchase the leased property at the end of thelease term.

 

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“Synthetic Purchase Agreement” means any swap, derivative or other agreement or combination ofagreements pursuant to which the Borrower or any Subsidiary is or may becomeobligated to make (a) any payment in connection with a purchase by anythird party from a person other than the Borrower or any Subsidiary of anyEquity Interest or Restricted Indebtedness of the Borrower or a Subsidiary or (b) anypayment (other than on account of a permitted purchase by it of any EquityInterest or Restricted Indebtedness) the amount of which is determined byreference to the price or value at any time of any Equity Interest orRestricted Indebtedness of the Borrower or a Subsidiary; provided, thatno phantom stock or similar plan providing for payments only to current orformer directors, officers or employees of the Borrower or the Subsidiaries (orto their heirs or estates) shall be deemed to be a Synthetic PurchaseAgreement.

 

“TARGETDay” means any day on which the Trans-European Automated Real-time GrossSettlement Express Transfer (TARGET) payment system (or, if such payment systemceases to be operative, such other payment system (if any) determined bythe Administrative Agent to be a suitable replacement) is open for thesettlement of payments in Euro.

 

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

 

“Threshold Amount” means $20,000,000.

 

“TotalDomestic Revolving Outstandings” means the aggregate Outstanding Amount ofall Domestic Revolving Loans, all Swing Line Loans and all L/C Obligations.

 

“TotalEuro Revolving Outstandings” means the aggregate Outstanding Amount of allEuro Revolving Loans.

 

“TotalRevolving Outstandings” means the aggregate Outstanding Amount of allDomestic Revolving Loans, all Euro Revolving Loans, all Swing Line Loans andall L/C Obligations.

 

“Trademarks” has the meaning assigned to such term in the Security Agreement.

 

“TradingWith the Enemy Act” has the meaning assigned to such term in Section 6.24.

 

“Transactions” means, collectively, (a) the execution, delivery and performanceby the Loan Parties of the Loan Documents to which they are a party and, in thecase of the Borrower, the making of the initial Borrowings hereunder, (b) therepayment of all amounts outstanding or due under, and the termination of, theExisting Credit Agreement and (c) the payment of related fees andexpenses.

 

“TreasuryManagement Agreement” means any agreement governing the provision of treasuryor cash management services, including deposit accounts, overnight draft,credit or debit card, funds transfer, automated clearinghouse, zero balanceaccounts, returned check concentration, controlled disbursement, lockbox,account reconciliation and reporting and trade finance services and other cashmanagement services.

 

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

 

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

 

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

 

“VotingStock” means, with respect to any Person, Equity Interests issued by suchPerson the holders of which are ordinarily, in the absence of contingencies,entitled to vote for the election of directors (or persons performing similarfunctions) of such Person, even though the right so to vote has been suspendedby the happening of such a contingency.

 

“wholly owned Subsidiary” of any person shall mean a subsidiary of such person of whichsecurities (except for directors’ qualifying shares and other de minimisownership interests required to be owned under foreign law by local residents)or other ownership interests representing 100% of the Equity Interests are, atthe time any determination is being made, owned, controlled or held by suchperson or one or more wholly owned Subsidiaries of such person or by suchperson and one or more wholly owned Subsidiaries of such person.

 

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

 

1.02         Other InterpretiveProvisions.

 

Withreference to this Agreement and each other Loan Document, unless otherwisespecified herein or in such other Loan Document:

 

(a)           The definitions of terms herein shall apply equallyto the singular and plural forms of the terms defined.  Whenever the context may require, any pronounshall include the corresponding masculine, feminine and neuter forms.  The words “include,” “includes”and “including” shall be deemed to be followed by the phrase “withoutlimitation.”  The word “will”shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) anydefinition of or reference to any agreement, instrument or other document(including any Organization Document) shall be construed as referring to suchagreement, instrument or other document as from time to time amended,supplemented or otherwise modified (subject to any restrictions on suchamendments, supplements or modifications set forth herein or in any other LoanDocument), (ii) any reference herein to any Person shall be construed toinclude such Person’s successors and assigns, (iii) the words “herein,”“hereof” and “hereunder,” and words of similar import when usedin any Loan Document, shall be construed to refer to such Loan Document in itsentirety and not to any particular provision thereof, (iv) all referencesin a Loan Document to Articles, Sections, Exhibits and Schedules shall beconstrued to refer to Articles and Sections of, and Exhibits and Schedules to,the Loan Document in which such references appear, (v) any reference toany law shall include all statutory and regulatory provisions consolidating,amending, replacing or interpreting such law and any reference to any law orregulation shall, unless otherwise specified, refer to such law or regulationas amended, modified or supplemented from time to time, and (vi) the words“asset” and “property” shall be construed to have the samemeaning and effect and to refer to any and all real and personal property andtangible and intangible assets and properties, including cash, securities,accounts and contract rights.

 

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

 

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

 

1.03         Accounting Terms.

 

(a)           Generally.  Except as otherwise specifically prescribedherein, all accounting terms not specifically or completely defined hereinshall be construed in conformity with, and all financial data (includingfinancial ratios and other financial calculations) required to be submittedpursuant to this Agreement shall be prepared in conformity with, GAAP appliedon a consistent basis, as in effect from time to time, applied in a mannerconsistent with that used in preparing the Audited Financial Statements;provided, however, that calculations of Synthetic Lease Obligations shall bemade by the Borrower in accordance with accepted financial practice andconsistent with the terms of such Synthetic Lease Obligations and in the eventany accounting term is not defined by GAAP, it shall have the definitionmutually agreed upon by the Borrower and the Administrative Agent.

 

(b)           Changes in GAAP.  If at any time any change in GAAP wouldaffect the computation of any financial ratio or requirement set forth in anyLoan Document, and either the Borrower or the Required Lenders shall sorequest, the Administrative Agent, the Lenders and the Borrower shall negotiatein good faith to amend such ratio or requirement to preserve the originalintent thereof in light of such change in GAAP (subject to the approval of theRequired Lenders); providedthat, until so amended, (i) suchratio or requirement shall continue to be computed in accordance with GAAPprior to such change therein and (ii) the Borrower shall provide to theAdministrative Agent and the Lenders financial statements and other documentsrequired under this Agreement or as reasonably requested hereunder settingforth a reconciliation between calculations of such ratio or requirement madebefore and after giving effect to such change in GAAP.

 

(c)           Calculations.  Notwithstanding the above, the parties heretoacknowledge and agree that all calculations of the Financial PerfomanceCovenants (including for purposes of determining the Applicable Rate) shall bemade on a Pro Forma Basis.

 

1.04         Rounding.

 

Anyfinancial ratios required to be maintained by the Borrower pursuant to thisAgreement shall be calculated by dividing the appropriate component by theother component, carrying the result to one place more than the number ofplaces by which such ratio is expressed herein and rounding the result up ordown to the nearest number (with a rounding-up if there is no nearest number).

 

1.05         Exchange Rates; CurrencyEquivalents.

 

(a)           The Administrative Agent or the L/C Issuer, asapplicable, shall determine the Spot Rates as of each Revaluation Date to beused for calculating Dollar Equivalent amounts of Credit Extensions andOutstanding Amounts denominated the Alternative Currency.  Such Spot Rates shall become effective as ofsuch Revaluation Date and shall be the Spot Rates employed in converting anyamounts between the applicable currencies until the next Revaluation Date tooccur.  Except for purposes of financialstatements delivered by Loan Parties hereunder or calculating financialcovenants hereunder or except as otherwise provided herein, the applicableamount of any currency (other than Dollars) for purposes of the Loan Documentsshall be such Dollar Equivalent amount as so determined by the AdministrativeAgent or the L/C Issuer, as applicable. The maximum amount of Indebtedness, investments and other thresholdamounts that the Borrower and the Subsidiaries may incur under Article VIIIshall not be deemed to be exceeded, with respect to any outstandingIndebtedness, investments and 

 

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otherthreshold amounts solely as a result of fluctuations in the exchange rate ofcurrencies.  When calculating capacityfor the incurrence of additional Indebtedness, investments and other thresholdamounts by the Borrower and any Subsidiary, the exchange rate of currenciesshall be measured as of the date of such calculation.

 

(b)           Wherever in this Agreement in connection with aBorrowing, conversion, continuation or prepayment of a Eurocurrency Rate Loanor the issuance, amendment or extension of a Letter of Credit, an amount, suchas a required minimum or multiple amount, is expressed in Dollars, but suchBorrowing, Eurocurrency Rate Loan or Letter of Credit is denominated in theAlternative Currency, such amount shall be the Alternative Currency Equivalentof such Dollar amount (rounded to the nearest unit of such AlternativeCurrency, with 0.5 of a unit being rounded upward), as determined by theAdministrative Agent or the L/C Issuer, as the case may be.

 

1.06         Times of Day.

 

Unlessotherwise specified, all references herein to times of day shall be referencesto Eastern time (daylight or standard, as applicable).

 

1.07         Letter of Credit Amounts.

 

Unlessotherwise specified herein, the amount of a Letter of Credit at any time shallbe deemed to be the stated amount of such Letter of Credit in effect at suchtime; provided, however, that with respect to any Letter ofCredit that, by its terms or the terms of any Issuer Document related thereto,provides for one or more automatic increases in the stated amount thereof, theamount of such Letter of Credit shall be deemed to be the maximum stated amountof such Letter of Credit after giving effect to all such increases, whether ornot such maximum stated amount is in effect at such time.

 

ARTICLE II

 

THE COMMITMENTS AND CREDITEXTENSIONS

 

2.01         Loans.

 

(a)           Domestic Revolving Loans. Subject tothe terms and conditions set forth herein, each Domestic Lender severallyagrees to make loans (each such loan, a “Domestic Revolving Loan”) tothe Borrower in Dollars from time to time on any Business Day during theAvailability Period in an aggregate amount not to exceed at any timeoutstanding the amount of such Domestic Lender’s Domestic Revolving Commitment;provided, however, that after giving effect to any Borrowing ofDomestic Revolving Loans, (i) the Total Domestic Revolving Outstandingsshall not exceed FIVE HUNDRED MILLION DOLLARS ($500,000,000) (such aggregateamount, as it may be increased or decreased as provided herein, the “AggregateDomestic Revolving Commitments”), (ii) the Total RevolvingOutstandings shall not exceed the Maximum Permitted Revolving Outstandings and (iii) theaggregate Outstanding Amount of the Domestic Revolving Loans of any DomesticLender, plus such Domestic Lender’s Applicable Percentage of theOutstanding Amount of all L/C Obligations plus such Domestic Lender’sApplicable Percentage of the Outstanding Amount of all Swing Line Loans shallnot exceed such Domestic Lender’s Domestic Revolving Commitment; providedfurther that the availability of the Aggregate Revolving Commitments atany time for the making of Loans and the issuance of Letters of Credit shall bereduced by the amount of the Alternative Currency Reserve.  Within the limits of each Domestic Lender’sDomestic Revolving Commitment, and subject to the other terms and conditionshereof, the Borrower may borrow under this Section 2.01(a), prepayunder Section 2.05, and reborrow under this Section 2.01(a).  Domestic Revolving Loans may be Base RateLoans or Eurocurrency Rate 

 

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Loans,or a combination thereof, as further provided herein; provided, however, allBorrowings made on the Closing Date shall be made as Base Rate Loans.

 

(b)           Euro Revolving Loans. Subject to the terms andconditions set forth herein, each Euro Lender severally agrees to make loans(each such loan, a “Euro Revolving Loan”) to the Borrower in the AlternativeCurrency from time to time on any Business Day during the Availability Periodin an aggregate amount not to exceed at any time outstanding the amount of suchEuro Lender’s Euro Revolving Commitment; provided, however, thatafter giving effect to any Borrowing of Euro Revolving Loans, (i) theTotal Euro Revolving Outstandings shall not exceed ONE HUNDRED FIFTY MILLIONDOLLARS ($150,000,000) (such aggregate amount, as it may be increased ordecreased as provided herein, the “Aggregate Euro Revolving Commitments”),(ii) the Total Revolving Outstandings shall not exceed the MaximumPermitted Revolving Outstandings and (iii) the aggregate OutstandingAmount of the Euro Revolving Loans of any Euro Lender shall not exceed suchEuro Lender’s Euro Revolving Commitment; providedfurther thatthe availability of the Aggregate Revolving Commitments at any time for themaking of Loans and the issuance of Letters of Credit shall be reduced by theamount of the Alternative Currency Reserve. Within the limits of each Euro Lender’s Euro Revolving Commitment, andsubject to the other terms and conditions hereof, the Borrower may borrow underthis Section 2.01(b), prepay under Section 2.05, andreborrow under this Section 2.01(b).  Euro Revolving Loans may be Eurocurrency RateLoans as further provided herein.

 

(c)           Increase in Aggregate Commitments.  The Borrower may, at any time and from timeto time, upon prior written notice by the Borrower to the Administrative Agentincrease the Aggregate Commitments (but not the Letter of Credit Sublimit) by amaximum aggregate amount of up to TWO HUNDRED MILLION DOLLARS ($200,000,000)with (i) additional Domestic Revolving Commitments from any existingDomestic Lender with a Domestic Revolving Commitment or new Domestic Revolving Commitmentsfrom any other Person selected by the Borrower and reasonably acceptable to theAdministrative Agent and the L/C Issuer or (ii) a term loan (the “IncrementalTerm Loan”) from any existing Lender or from any other Person selected bythe Borrower and reasonably acceptable to the Administrative Agent as follows:

 

(i)            Increase in Aggregate Domestic RevolvingCommitments.  TheBorrower may, at any time, upon written notice to the Administrative Agent,increase the Aggregate Domestic Revolving Commitments; provided that:

 

(A)          any such increase shall bein a minimum principal amount of $10,000,000 and in integral multiples of$1,000,000 in excess thereof;

 

(B)           no Default or Event ofDefault shall exist and be continuing at the time of any such increase;

 

(C)           no existing Lender shall beunder any obligation to increase its Domestic Revolving Commitment and any suchdecision whether to increase its Domestic Revolving Commitment shall be in suchLender’s sole and absolute discretion;

 

(D)          (1) any new Lendershall join this Agreement by executing such joinder documents required by theAdministrative Agent and/or (2) any existing Lender electing to increaseits Domestic Revolving Commitment shall have executed a commitment agreementsatisfactory to the Administrative Agent; and

 

(E)           as a condition precedent tosuch increase, the Borrower shall deliver to the Administrative Agent acertificate of each Loan Party dated as of the date of such

 

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increase(in sufficient copies for each Lender) signed by a Responsible Officer of suchLoan Party (1) certifying and attaching the resolutions adopted by suchLoan Party approving or consenting to such increase, and (2) in the caseof the Borrower, certifying that, before and after giving effect to suchincrease, (x) the representations and warranties contained in Article VIand the other Loan Documents are true and correct in all material respects onand as of the date of such increase, except to the extent that suchrepresentations and warranties specifically refer to an earlier date, in whichcase they are true and correct in all material respects as of such earlierdate, and except that for purposes of this Section 2.01(c)(i), therepresentations and warranties contained in subsections (a) and (b) ofSection 6.05 shall be deemed to refer to the most recent statementsfurnished pursuant to clauses (a) and (b), respectively, of Section 7.04,and (y) no Default or Event of Default exists.

 

(ii)           Institution of Incremental Term Loan.  The Borrower may, at any time, upon writtennotice to the Administrative Agent, institute the Incremental Term Loan; providedthat:

 

(A)          any such institution of theIncremental Term Loan shall be in a minimum principal amount of $10,000,000 andin integral multiples of $1,000,000 in excess thereof;

 

(B)           no Default or Event ofDefault shall exist and be continuing at the time of any such institution ofthe Incremental Term Loan;

 

(C)           no existing Lender shall beunder any obligation to provide a commitment under the Incremental Term Loanand any such decision whether to provide a commitment under the IncrementalTerm Loan shall be in such Lender’s sole and absolute discretion;

 

(D)          (1) any new Lendershall join this Agreement by executing such joinder documents required by theAdministrative Agent and/or (2) any existing Lender electing to provide acommitment under the Incremental Term Loan shall have executed a commitmentagreement satisfactory to the Administrative Agent;

 

(E)           as a condition precedent tosuch increase, the Borrower shall deliver to the Administrative Agent acertificate of each Loan Party dated as of the date of such increase (insufficient copies for each Lender) signed by a Responsible Officer of such LoanParty (1) certifying and attaching the resolutions adopted by such LoanParty approving or consenting to such increase, and (2) in the case of theBorrower, certifying that, before and after giving effect to such increase, (x) therepresentations and warranties contained in Article VI and theother Loan Documents are true and correct in all material respects on and as ofthe date of such increase, except to the extent that such representations andwarranties specifically refer to an earlier date, in which case they are trueand correct in all material respects as of such earlier date, and except thatfor purposes of this Section 2.01(c)(i), the representations andwarranties contained in subsections (a) and (b) of Section 6.05shall be deemed to refer to the most recent statements furnished pursuant toclauses (a) and (b), respectively, of Section 7.04, and (y) noDefault or Event of Default exists; and

 

(F)           as a condition precedent tosuch institution of the Incremental Term Loan, an amendment to this Agreementas may be necessary to incorporate specific 

 

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provisionsapplicable to the Incremental Term Loan herein must be approved by the RequiredLenders, such approval not to be unreasonably withheld.

 

TheBorrower shall prepay any Loans owing by it and outstanding on the date of anysuch increase in the Aggregate Domestic Revolving Commitments or any suchinstitution of the Incremental Term Loan (and pay any additional amountsrequired pursuant to Section 3.05) to the extent necessary to keep theoutstanding Loans ratable with any revised Commitments arising from anynonratable increase in the Commitments under this Section.

 

2.02         Borrowings, Conversions andContinuations of Loans.

 

(a)           (i)            Domestic Revolving Loans.  With respect to Domestic Revolving Loans,each Borrowing, each conversion of Loans from one Type to the other, and eachcontinuation of Eurocurrency Rate Loans shall be made upon the Borrower’sirrevocable notice to the Administrative Agent, which may be given bytelephone.  Each such notice must bereceived by the Administrative Agent not later than 11:00 a.m. (A) threeBusiness Days prior to the requested date of any Borrowing of, conversion to orcontinuation of, Eurocurrency Rate Loans or of any conversion of EurocurrencyRate Loans to Base Rate Loans and (B) on the requested date of anyBorrowing of Base Rate Loans.

 

(ii)           Euro Revolving Loans.  With respect to Euro Revolving Loans, eachBorrowing and each continuation of Eurocurrency Rate Loans shall be made uponthe Borrower’s irrevocable notice to the Administrative Agent, which may begiven by telephone.  Each such noticemust be received by the Administrative Agent not later than 11:00 a.m.four Business Days  prior to therequested date of any Borrowing of Eurocurrency rate Loans denominated in theAlternative Currency.

 

(b)           Each telephonic notice by the Borrower pursuant tothis Section 2.02 must be confirmed promptly by delivery to theAdministrative Agent of a written Loan Notice, appropriately completed andsigned by a Responsible Officer of the Borrower.  Each Borrowing of, conversion to orcontinuation of Eurocurrency Rate Loans shall be in a principal amount of$2,000,000 or a whole multiple of $1,000,000 in excess thereof.  Except as provided in Sections 2.03(c) and2.04(c), each Borrowing of or conversion to Base Rate Loans shall be ina principal amount of $1,000,000 or a whole multiple of $500,000 in excessthereof.  Each Loan Notice (whethertelephonic or written) shall specify (i) whether the Borrower’s request iswith respect to Domestic Revolving Loans or Euro Revolving Loans, (ii) whetherthe Borrower is requesting a Borrowing, a conversion of Domestic RevolvingLoans from one Type to the other, or a continuation of Eurocurrency Rate Loans,(iii) the requested date of the Borrowing, conversion or continuation, asthe case may be (which shall be a Business Day), (iv) the principal amountof Loans to be borrowed, converted or continued, (v) the Type of Loans tobe borrowed or to which existing Loans are to be converted, (vi) ifapplicable, the duration of the Interest Period with respect thereto and(vii) the currency of the Loans to be borrowed.  If the Borrower fails to specify a currencyin a Loan Notice requesting a Borrowing, then the Loans so requested shall bemade in Dollars.  If the Borrower failsto specify a Type of Loan in a Loan Notice or if the Borrower fails to give atimely notice requesting a conversion or continuation, then the applicableDomestic Revolving Loans shall be made as, or converted to, Base Rate Loans; provided,however, that in the case of a failure to timely request a continuationof Loans denominated in the Alternative Currency, such Loans shall be continuedas Eurocurrency Rate Loans in their original currency with an Interest Periodof one month.  Any automatic conversionto Base Rate Loans shall be effective as of the last day of the Interest Periodthen in effect with respect to the applicable Eurocurrency Rate Loans.  If the Borrower requests a Borrowing of,conversion to, or continuation of Eurocurrency Rate Loans in any such LoanNotice, but fails to specify an Interest Period, it will be deemed to havespecified an Interest Period of one month. No Loan may be converted into or continued as a Loan denominated in adifferent currency, but instead must be prepaid in the original currency ofsuch Loan and reborrowed in the other currency.

 

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(c)           Following receipt of a Loan Notice, theAdministrative Agent shall promptly notify each Lender of the amount (andcurrency) of its Applicable Percentage of the applicable Loans, and if notimely notice of a conversion or continuation is provided by the Borrower, theAdministrative Agent shall notify each Lender of the details of any automaticconversion to Base Rate Loans or a continuation of Loans denominated in theAlternative Currency, in each case, as described in the precedingsubsection.  In the case of a Borrowing,each Lender shall make the amount of its Loan available to the AdministrativeAgent in Same Day Funds at the Administrative Agent’s Office for the applicablecurrency not later than 1:00 p.m., in the case of any Loan denominated inDollars, and not later than the Applicable Time specified by the AdministrativeAgent in the case of any Loan in the Alternative Currency, in each case on theBusiness Day specified in the applicable Loan Notice.  Upon satisfaction of the applicableconditions set forth in Section 5.02 (and, if such Borrowing is theinitial Credit Extension, Section 5.01), the Administrative Agentshall make all funds so received available to the Borrower in like funds asreceived by the Administrative Agent either by (i) crediting the accountof the Borrower on the books of Bank of America with the amount of such fundsor (ii) wire transfer of such funds, in each case in accordance withinstructions provided to (and reasonably acceptable to) the AdministrativeAgent by the Borrower; provided, however, that if, on the date ofa Borrowing of Domestic Revolving Loans, there are L/C Borrowings outstanding,then the proceeds of such Borrowing, first, shall be applied to the payment infull of any such L/C Borrowings and second, shall be made available tothe Borrower as provided above.

 

(d)           Except as otherwise provided herein, (i) a Eurocurrency Rate Loan may becontinued or converted only on the last day of the Interest Period for suchEurocurrency Rate Loan and (ii) without the consent of the RequiredLenders, (A) no Domestic Revolving Loan may be requested as, converted toor continued as a Eurocurrency Rate Loan and (B) no Euro Revolving Loanmay be continued as a Eurocurrency Rate Loan with an Interest Period greaterthan one month.  During the existence ofa Default, no Loans may be requested as, converted to or continued asEurocurrency Rate Loans (whether in Dollars or the Alternative Currency)without the consent of the Required Lenders, and the Required Lenders maydemand that any or all of the then outstanding Eurocurrency Rate Loans denominatedin the Alternative Currency be prepaid, or redenominated into Dollars in theamount of the Dollar Equivalent thereof, on the last day of the then currentInterest Period with respect thereto.

 

(e)           The Administrative Agent shall promptly notify theBorrower and the Lenders of the interest rate applicable to any Interest Periodfor Eurocurrency Rate Loans upon determination of such interest rate.  At any time that Base Rate Loans areoutstanding, the Administrative Agent shall notify the Borrower and the Lendersof any change in Bank of America’s prime rate used in determining the Base Ratepromptly following the public announcement of such change.

 

(f)            After giving effect to all Borrowings, allconversions of Loans from one Type to the other, and all continuations of Loansas the same Type, there shall not be more than 10 Interest Periods in effectwith respect to all Loans.

 

2.03         Letters of Credit.

 

(a)           The Letter of Credit Commitment.

 

(i)            Subject to the terms and conditions set forthherein, (A) the L/C Issuer agrees, in reliance upon the agreements of theDomestic Lenders set forth in this Section 2.03, (1) from timeto time on any Business Day during the period from the Closing Date until theLetter of Credit Expiration Date, to issue Letters of Credit in Dollars or inthe Alternative Currency for the account of the Borrower or any of itsSubsidiaries, and to amend or extend Letters of Credit 

 

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previouslyissued by it, in accordance with subsection (b) below, and (2) tohonor drawings under the Letters of Credit; and (B) the Domestic Lendersseverally agree to participate in Letters of Credit issued for the account ofthe Borrower or its Subsidiaries and any drawings thereunder; providedthat after giving effect to any L/C Credit Extension with respect to any Letterof Credit, (x) the Total Revolving Outstandings shall not exceed theMaximum Permitted Revolving Outstandings, (y) the aggregate OutstandingAmount of the Domestic Revolving Loans of any Domestic Lender, plus suchDomestic Lender’s Applicable Percentage of the Outstanding Amount of all L/CObligations plus such Domestic Lender’s Applicable Percentage of theOutstanding Amount of all Swing Line Loans shall not exceed such DomesticLender’s Domestic Revolving Commitment and (z) the Outstanding Amount ofthe L/C Obligations shall not exceed the Letter of Credit Sublimit.  Each request by the Borrower for the issuanceor amendment of a Letter of Credit shall be deemed to be a representation bythe Borrower that the L/C Credit Extension so requested complies with theconditions set forth in the proviso to the preceding sentence.  Within the foregoing limits, and subject tothe terms and conditions hereof, the Borrower’s ability to obtain Letters ofCredit shall be fully revolving, and accordingly the Borrower may, during theforegoing period, obtain Letters of Credit to replace Letters of Credit thathave expired or that have been drawn upon and reimbursed.  Furthermore, each Domestic Lender acknowledgesand confirms that it has a participation interest in the liability of the L/CIssuer under the Existing Letters of Credit in a percentage equal to itsApplicable Percentage of the Domestic Revolving Loans.  The Borrower’s reimbursement obligations inrespect of the Existing Letters of Credit, and each Domestic Lender’sobligations in connection therewith, shall be governed by the terms of thisAgreement.

 

(ii)           The L/C Issuer shall not issue any Letter of Creditif:

 

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

 

(B)           the expiry date of suchrequested Letter of Credit would occur after the Letter of Credit ExpirationDate, unless all the Domestic Lenders have approved such expiry date.

 

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

 

(A)          any order, judgment ordecree of any Governmental Authority or arbitrator shall by its terms purportto enjoin or restrain the L/C Issuer from issuing such Letter of Credit, or anyLaw applicable to the L/C Issuer or any request or directive (whether or nothaving the force of law) from any Governmental Authority with jurisdiction overthe L/C Issuer shall prohibit, or request that the L/C Issuer refrain from, theissuance of letters of credit generally or such Letter of Credit in particularor shall impose upon the L/C Issuer with respect to such Letter of Credit anyrestriction, reserve or capital requirement (for which the L/C Issuer is nototherwise compensated hereunder) not in effect on the Closing Date, or shallimpose upon the L/C Issuer any unreimbursed loss, cost or expense which was notapplicable on the Closing Date and which the L/C Issuer in good faith deemsmaterial to it;

 

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

 

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

 

(D)          such Letter of Credit is tobe denominated in a currency other than Dollars or the Alternative Currency; or

 

(E)           a default of any DomesticLender’s obligations to fund under Section 2.03(c) exists orany Domestic Lender is at such time a Defaulting Domestic Lender hereunder,unless the L/C Issuer has entered into satisfactory arrangements with theBorrower or such Domestic Lender to eliminate the L/C Issuer’s risk withrespect to such Domestic Lender.

 

(iv)          The L/C Issuer shall be under no obligation to amendany Letter of Credit if (A) the L/C Issuer would have no obligation atsuch time to issue such Letter of Credit in its amended form under the termshereof, or (B) the beneficiary of such Letter of Credit does not acceptthe proposed amendment to such Letter of Credit.

 

(v)           The L/C Issuer shall act on behalf of the DomesticLenders with respect to any Letters of Credit issued by it and the documentsassociated therewith, and the L/C Issuer shall have all of the benefits andimmunities (A) provided to the Administrative Agent in Article Xwith respect to any acts taken or omissions suffered by the L/C Issuer inconnection with Letters of Credit issued by it or proposed to be issued by itand Issuer Documents pertaining to such Letters of Credit as fully as if theterm “Administrative Agent” as used in Article X included the L/CIssuer with respect to such acts or omissions, and (B) as additionallyprovided herein with respect to the L/C Issuer.

 

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

 

(i)            Each Letter of Credit shall be issued or amended, asthe case may be, upon the request of the Borrower delivered to the L/C Issuer(with a copy to the Administrative Agent) in the form of a Letter of CreditApplication, appropriately completed and signed by a Responsible Officer of theBorrower.  Such Letter of CreditApplication must be received by the L/C Issuer and the Administrative Agent notlater than 11:00 a.m. at least five (5) Business Days (or such laterdate and time as the Administrative Agent and the L/C Issuer may agree in aparticular instance in their sole discretion) prior to the proposed issuancedate or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit,such Letter of Credit Application shall specify in form and detail satisfactoryto the L/C Issuer: (A) the proposed issuance date of the requested Letterof Credit (which shall be a Business Day); (B) the amount and currencythereof; (C) the expiry date thereof; (D) the name and address of thebeneficiary thereof; (E) the documents to be presented by such beneficiaryin case of any drawing thereunder; (F) the full text of any certificate tobe presented by such beneficiary in case of any drawing thereunder; (G) thepurpose and nature of the requested Letter of Credit; and (H) such othermatters as the L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter ofCredit, such Letter of Credit Application shall specify in form and detailsatisfactory to the L/C Issuer (A) the Letter of Credit to be amended; (B) theproposed date of amendment thereof (which shall be a Business Day); (C) thenature of the proposed amendment; and (D) such other matters as the L/CIssuer may require.  Additionally, theBorrower shall furnish to the L/C Issuer and the Administrative Agent suchother documents and information pertaining to such requested Letter of Creditissuance or amendment, including any Issuer Documents, as the L/C Issuer or theAdministrative Agent may require.

 

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(ii)           Promptly after receipt of any Letter of CreditApplication, the L/C Issuer will confirm with the Administrative Agent (bytelephone or in writing) that the Administrative Agent has received a copy ofsuch Letter of Credit Application from the Borrower and, if not, the L/C Issuerwill provide the Administrative Agent with a copy thereof.  Unless the L/C Issuer has received writtennotice from any Domestic Lender, the Administrative Agent or any Loan Party, atleast one Business Day prior to the requested date of issuance or amendment ofthe applicable Letter of Credit, that one or more applicable conditionscontained in Article V shall not be satisfied, then, subject to theterms and conditions hereof, the L/C Issuer shall, on the requested date, issuea Letter of Credit for the account of the Borrower or the applicable Subsidiaryor enter into the applicable amendment, as the case may be, in each case inaccordance with the L/C Issuer’s usual and customary business practices.  Immediately upon the issuance of each Letterof Credit, each Domestic Lender shall be deemed to, and hereby irrevocably andunconditionally agrees to, purchase from the L/C Issuer a risk participation insuch Letter of Credit in an amount equal to the product of such Domestic Lender’sApplicable Percentage times the amount of such Letter of Credit.

 

(iii)          If the Borrower so requests in any applicable Letterof Credit Application, the L/C Issuer may, in its sole and absolute discretion,agree to issue a Letter of Credit that has automatic extension provisions(each, an “Auto-Extension Letter of Credit”); provided that anysuch Auto-Extension Letter of Credit must permit the L/C Issuer to prevent anysuch extension at least once in each twelve-month period (commencing with thedate of issuance of such Letter of Credit) by giving prior notice to thebeneficiary thereof not later than a day (the “Non-Extension Notice Date”)in each such twelve-month period to be agreed upon at the time such Letter of Creditis issued.  Unless otherwise directed bythe L/C Issuer, the Borrower shall not be required to make a specific requestto the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the DomesticLenders shall be deemed to have authorized (but may not require) the L/C Issuerto permit the extension of such Letter of Credit at any time to an expiry datenot later than the Letter of Credit Expiration Date; provided, however,that the L/C Issuer shall not permit any such extension if (A) the L/CIssuer has determined that it would not be permitted, or would have noobligation, at such time to issue such Letter of Credit in its revised form (asextended) under the terms hereof (by reason of the provisions of clause (ii) or(iii) of Section 2.03(a) or otherwise), or (B) ithas received notice (which may be by telephone or in writing) on or before theday that is seven Business Days before the Non-Extension Notice Date (1) fromthe Administrative Agent that the Required Domestic Lenders have elected not topermit such extension or (2) from the Administrative Agent, any DomesticLender or the Borrower that one or more of the applicable conditions specifiedin Section 5.02 is not then satisfied, and in each case directingthe L/C Issuer not to permit such extension.

 

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

 

(c)           Drawings and Reimbursements; Funding ofParticipations.

 

(i)            Upon receipt from thebeneficiary of any Letter of Credit of any notice of drawing under such Letterof Credit, the L/C Issuer shall notify the Borrower and the AdministrativeAgent thereof.  In the case of a Letterof Credit denominated in the Alternative Currency, the Borrower shall reimbursethe L/C Issuer in the Alternative Currency, unless (A) the L/C Issuer (atits option) shall have specified in such notice that it will requirereimbursement in

 

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Dollars,or (B) in the absence of any such requirement for reimbursement inDollars, the Borrower shall have notified the L/C Issuer promptly followingreceipt of the notice of drawing that the Borrower will reimburse the L/CIssuer in Dollars.  In the case of anysuch reimbursement in Dollars of a drawing under a Letter of Credit denominatedin the Alternative Currency, the L/C Issuer shall notify the Borrower of theDollar Equivalent of the amount of the drawing promptly following thedetermination thereof.  Not later than11:00 a.m. on the date of any payment by the L/C Issuer under a Letter ofCredit to be reimbursed in Dollars, or the Applicable Time on the date of anypayment by the L/C Issuer under a Letter of Credit to be reimbursed in theAlternative Currency (each such date, an “Honor Date”), the Borrowershall reimburse the L/C Issuer through the Administrative Agent in an amountequal to the amount of such drawing and in the applicable currency.  If the Borrower fails to so reimburse the L/CIssuer by such time, the Administrative Agent shall promptly notify eachDomestic Lender of the Honor Date, the amount of the unreimbursed drawing(expressed in Dollars or in the amount of the Dollar Equivalent thereof in thecase of a Letter of Credit denominated in the Alternative Currency) (the “UnreimbursedAmount”), and the amount of such Domestic Lender’s Applicable Percentagethereof.  In such event, the Borrowershall be deemed to have requested a Borrowing of Base Rate Loans to bedisbursed on the Honor Date in an amount equal to the Unreimbursed Amount,without regard to the minimum and multiples specified in Section 2.02for the principal amount of Base Rate Loans, but subject to the amount of theunutilized portion of the Aggregate Domestic Revolving Commitments and theconditions set forth in Section 5.02 (other than the delivery of aLoan Notice).  Any notice given by theL/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) maybe given by telephone if immediately confirmed in writing; provided thatthe lack of such an immediate confirmation shall not affect the conclusivenessor binding effect of such notice.

 

(ii)           Each Domestic Lender shall upon any notice pursuantto Section 2.03(c)(i) make funds available to theAdministrative Agent for the account of the L/C Issuer, in Dollars, at the  Administrative Agent’s Office forDollar-denominated payments in an amount equal to its Applicable Percentage ofthe Unreimbursed Amount not later than 1:00 p.m. on the Business Dayspecified in such notice by the Administrative Agent, whereupon, subject to theprovisions of Section 2.03(c)(iii), each Domestic Lender that somakes funds available shall be deemed to have made a Base Rate Loan to theBorrower in such amount.  TheAdministrative Agent shall remit the funds so received to the L/C Issuer inDollars.

 

(iii)          With respect to any Unreimbursed Amount that is notfully refinanced by a Borrowing of Base Rate Loans because the conditions setforth in Section 5.02 cannot be satisfied or for any other reason,the Borrower shall be deemed to have incurred from the L/C Issuer an L/CBorrowing in the amount of the Unreimbursed Amount that is not so refinanced,which L/C Borrowing shall be due and payable on demand (together with interest)and shall bear interest at the Default Rate. In such event, each Domestic Lender’s payment to the AdministrativeAgent for the account of the L/C Issuer pursuant to Section 2.03(c)(ii) shallbe deemed payment in respect of its participation in such L/C Borrowing andshall constitute an L/C Advance from such Domestic Lender in satisfaction ofits participation obligation under this Section 2.03.

 

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

 

(v)           Each Domestic Lender’s obligation to make DomesticRevolving Loans or L/C Advances to reimburse the L/C Issuer for amounts drawnunder Letters of Credit, as

 

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contemplatedby this Section 2.03(c), shall be absolute and unconditional andshall not be affected by any circumstance, including (A) any setoff,counterclaim, recoupment, defense or other right which such Domestic Lender mayhave against the L/C Issuer, the Borrower or any other Person for any reasonwhatsoever; (B) the occurrence or continuance of a Default, or (C) anyother occurrence, event or condition, whether or not similar to any of theforegoing; provided, however, that each Domestic Lender’sobligation to make Domestic Revolving Loans pursuant to this Section 2.03(c) issubject to the conditions set forth in Section 5.02 (other thandelivery by the Borrower of a Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair theobligation of the Borrower to reimburse the L/C Issuer for the amount of anypayment made by the L/C Issuer under any Letter of Credit, together withinterest as provided herein.

 

(vi)          If any Domestic Lender fails to make available tothe Administrative Agent for the account of the L/C Issuer any amount requiredto be paid by such Domestic Lender pursuant to the foregoing provisions of thisSection 2.03(c) by the time specified in Section 2.03(c)(ii),the L/C Issuer shall be entitled to recover from such Domestic Lender (actingthrough the Administrative Agent), on demand, such amount with interest thereonfor the period from the date such payment is required to the date on which suchpayment is immediately available to the L/C Issuer at a rate per annum equal tothe applicable Overnight Rate from time to time in effect.  A certificate of the L/C Issuer submitted toany Domestic Lender (through the Administrative Agent) with respect to anyamounts owing under this clause (vi) shall be conclusive absent manifesterror.

 

(d)           Repayment of Participations.

 

(i)            At any time after the L/C Issuer has made a paymentunder any Letter of Credit and has received from any Domestic Lender such DomesticLender’s L/C Advance in respect of such payment in accordance with Section 2.03(c),if the Administrative Agent receives for the account of the L/C Issuer anypayment in respect of the related Unreimbursed Amount or interest thereon(whether directly from the Borrower or otherwise, including proceeds of CashCollateral applied thereto by the Administrative Agent), the AdministrativeAgent will distribute to such Domestic Lender its Applicable Percentage thereof(appropriately adjusted, in the case of interest payments, to reflect theperiod of time during which such Domestic Lender’s L/C Advance was outstanding)in Dollars and in the same funds as those received by the Administrative Agent.

 

(ii)           If any payment received by the Administrative Agentfor the account of the L/C Issuer pursuant to Section 2.03(c)(i) isrequired to be returned under any of the circumstances described in Section 11.05(including pursuant to any settlement entered into by the L/C Issuer in itsdiscretion), each Domestic Lender shall pay to the Administrative Agent for theaccount of the L/C Issuer its Applicable Percentage thereof on demand of theAdministrative Agent, plus interest thereon from the date of such demandto the date such amount is returned by such Domestic Lender, at a rate perannum equal to the Overnight Rate from time to time in effect.  The obligations of the Domestic Lenders underthis clause shall survive the payment in full of the Obligations and thetermination of this Agreement.

 

(e)           Obligations Absolute.  The obligation of the Borrower to reimbursethe L/C Issuer for each drawing under each Letter of Credit and to repay eachL/C Borrowing shall be absolute, unconditional and irrevocable, and shall bepaid strictly in accordance with the terms of this Agreement under allcircumstances, including the following:

 

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

 

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(ii)           the existence of any claim, counterclaim, setoff,defense or other right that the Borrower or any Subsidiary may have at any timeagainst any beneficiary or any transferee of such Letter of Credit (or anyPerson for whom any such beneficiary or any such transferee may be acting), theL/C Issuer or any other Person, whether in connection with this Agreement, thetransactions contemplated hereby or by such Letter of Credit or any agreementor instrument relating thereto, or any unrelated transaction;

 

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

 

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

 

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

 

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

 

provided, that theforegoing shall not be construed to excuse the L/C Issuer from liability to theBorrower to the extent of any direct damages (as opposed to consequentialdamages, claims in respect of which are hereby waived by the Borrower to theextent permitted by applicable law) suffered by the Borrower that are caused bythe applicable LC Issuer’s failure to exercise care when determining whetherdrafts and other documents presented under a Letter of Credit comply with theterms thereof.

 

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

 

(f)            Role of L/C Issuer.  Each Domestic Lender and the Borrower agreethat, in paying any drawing under a Letter of Credit, the L/C Issuer shall nothave any responsibility to obtain any document (other than any sight draft,certificates and documents expressly required by such Letter of Credit) or toascertain or inquire as to the validity or accuracy of any such document or theauthority of the Person executing or delivering any such document.  None of the L/C Issuer, the AdministrativeAgent, any of their respective Related Parties nor any correspondent,participant or assignee of the L/C Issuer shall be liable to any DomesticLender for (i) any action taken or omitted in connection herewith at therequest or with the approval of the Domestic Lenders or the Required DomesticLenders, as applicable; (ii) any action taken or omitted in the absence ofgross negligence or willful misconduct; or (iii) the due execution,effectiveness, validity or enforceability of any document or instrument relatedto any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any 

 

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beneficiaryor transferee with respect to its use of any Letter of Credit; provided,however, that this assumption is not intended to, and shall not,preclude the Borrower’s pursuing such rights and remedies as it may haveagainst the beneficiary or transferee at law or under any other agreement.  None of the L/C Issuer, the AdministrativeAgent, any of their respective Related Parties nor any correspondent,participant or assignee of the L/C Issuer shall be liable or responsible forany of the matters described in clauses (i) through (v) of Section 2.03(e);provided, however, that anything in such clauses to the contrarynotwithstanding, the Borrower may have a claim against the L/C Issuer, and theL/C Issuer may be liable to the Borrower, to the extent, but only to theextent, of any direct, as opposed to consequential or exemplary, damagessuffered by the Borrower which the Borrower proves were caused by the L/CIssuer’s willful misconduct or gross negligence or the L/C Issuer’s willfulfailure to pay under any Letter of Credit after the presentation to it by thebeneficiary of a sight draft and certificate(s) strictly complying withthe terms and conditions of a Letter of Credit unless the L/C Issuer isprevented or prohibited from so paying as a result of any order or directive ofany court or other Governmental Authority. In furtherance and not in limitation of the foregoing, the L/C Issuermay accept documents that appear on their face to be in order, withoutresponsibility for further investigation, regardless of any notice orinformation to the contrary, and the L/C Issuer shall not be responsible forthe validity or sufficiency of any instrument transferring or assigning orpurporting to transfer or assign a Letter of Credit or the rights or benefitsthereunder or proceeds thereof, in whole or in part, which may prove to beinvalid or ineffective for any reason.

 

(g)           Cash Collateral.  (i) Upon the request of theAdministrative Agent, (i) if the L/C Issuer has honored any full orpartial drawing request under any Letter of Credit and such drawing hasresulted in an L/C Borrowing, or (ii) if, as of the Letter of CreditExpiration Date, any L/C Obligation for any reason remains outstanding, theBorrower shall, in each case, immediately Cash Collateralize the thenOutstanding Amount of all L/C Obligations.

 

(ii)           In addition, if the Administrative Agent notifiesthe Borrower at any time that the Outstanding Amount of all L/C Obligations atsuch time exceeds 105% of the Letter of Credit Sublimit then in effect, then,within two Business Days after receipt of such notice, the Borrower shall CashCollateralize the L/C Obligations in an amount equal to the amount by which theOutstanding Amount of all L/C Obligations exceeds the Letter of CreditSublimit.

 

(iii)          Sections 2.05 and 9.02 set forthcertain additional requirements to deliver Cash Collateral hereunder.  For purposes of this Section 2.03,Section 2.05 and Section 9.02, “Cash Collateralize”means to pledge and deposit with or deliver to the Administrative Agent, forthe benefit of the L/C Issuer and the Domestic Lenders, as collateral for theL/C Obligations, cash or deposit account balances pursuant to documentation inform and substance satisfactory to the Administrative Agent and the L/C Issuer(which documents are hereby consented to by the Domestic Lenders).  Derivatives of such term have correspondingmeanings.  The Borrower hereby grants tothe Administrative Agent, for the benefit of the L/C Issuer and the DomesticLenders, a security interest in all such cash, deposit accounts and allbalances therein and all proceeds of the foregoing.  Cash Collateral shall be maintained inblocked, non-interest bearing deposit accounts with the Administrative Agent.

 

(h)           Applicability of ISP.  Unless otherwise expressly agreed by the L/CIssuer and the Borrower when a Letter of Credit is issued (including any suchagreement applicable to an Existing Letter of Credit), the rules of theISP shall apply to each Letter of Credit.

 

(i)            Letter of Credit Fees.  The Borrower shall pay to the AdministrativeAgent a Letter of Credit fee (the “Letter of Credit Fee”) in Dollars forthe account of each Domestic Lender in accordance with its ApplicablePercentage for each Letter of Credit denominated in Dollars equal to theApplicable Rate times the daily maximum amount available to be drawnunder such Letter of Credit.  Forpurposes of 

 

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computingthe daily amount available to be drawn under any Letter of Credit, the amountof such Letter of Credit shall be determined in accordance with Section 1.07.  Letter of Credit Fees shall be(i) computed on a quarterly basis in arrears and (ii) due and payableon the first Business Day after the end of each March, June, September andDecember, commencing with the first such date to occur after the issuance ofsuch Letter of Credit, on the Letter of Credit Expiration Date and thereafteron demand.  If there is any change in theApplicable Rate during any quarter, the daily amount available to be drawnunder each Letter of Credit shall be computed and multiplied by the ApplicableRate separately for each period during such quarter that such Applicable Ratewas in effect.  Notwithstanding anythingto the contrary contained herein, while any Event of Default exists, all Letterof Credit Fees shall accrue at the Default Rate.

 

(j)            Fronting Fee and Documentary and ProcessingCharges Payable to L/C Issuer. The Borrower shall pay afronting fee directly to the L/C Issuer for its own account with respect toeach Letter of Credit, at the rate per annum specified in the Fee Letter,computed on the actual daily maximum amount available to be drawn under suchLetter of Credit (whether or not such maximum amount is then in effect undersuch Letter of Credit) and on a quarterly basis in arrears.  Such fronting fee shall be due and payable onthe tenth Business Day after the end of each March, June, September andDecember in respect of the most recently-ended quarterly period (orportion thereof, in the case of the first payment), commencing with the firstsuch date to occur after the issuance of such Letter of Credit, on the Letter ofCredit Expiration Date and thereafter on demand.  For purposes of computing the daily amountavailable to be drawn under any Letter of Credit, the amount of such Letter ofCredit shall be determined in accordance with Section 1.06.  In addition, the Borrower shall pay directlyto the L/C Issuer for its own account the customary issuance, presentation,amendment and other processing fees, and other standard costs and charges, ofthe L/C Issuer relating to letters of credit as from time to time in effect.  Such customary fees and standard costs andcharges are due and payable on demand and are nonrefundable.

 

(k)           Conflict with Issuer Documents.  In the event of any conflict between theterms hereof and the terms of any Issuer Document, the terms hereof shallcontrol.

 

(l)            Letters of Credit Issued for Subsidiaries.  Notwithstanding that a Letter of Creditissued or outstanding hereunder is in support of any obligations of, or is forthe account of, a Subsidiary, the Borrower shall be obligated to reimburse theL/C Issuer hereunder for any and all drawings under such Letter of Credit.  The Borrower hereby acknowledges that theissuance of Letters of Credit for the account of Subsidiaries inures to thebenefit of the Borrower, and that the Borrower’s business derives substantialbenefits from the businesses of such Subsidiaries.

 

2.04         Swing Line Loans.

 

(a)           Swing Line Facility.  Subject to the terms and conditions set forthherein, the Swing Line Lender agrees, in reliance upon the agreements of theother Domestic Lenders set forth in this Section 2.04, to makeloans (each such loan, a “Swing Line Loan”) to the Borrower in Dollarsfrom time to time on any Business Day during the Availability Period in anaggregate amount not to exceed at any time outstanding the amount of the SwingLine Sublimit; provided, however, that after giving effect to anySwing Line Loan, (i) the Total Revolving Outstandings shall not exceed theMaximum Permitted Revolving Outstandings, and (ii) the aggregateOutstanding Amount of the Domestic Revolving Loans of any Domestic Lender, plussuch Domestic Lender’s Applicable Percentage of the Outstanding Amount of allL/C Obligations, plus such Domestic Lender’s Applicable Percentage ofthe Outstanding Amount of all Swing Line Loans shall not exceed such DomesticLender’s Domestic Revolving Commitment, and provided, further,that (i) the Borrower shall not use the proceeds of any Swing Line Loan torefinance any outstanding Swing Line Loan and (ii) the availability of theAggregate Revolving Commitments at any time for the making of Loans and theissuance of Letters of Credit shall be reduced by the amount of 

 

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theAlternative Currency Reserve.  Within theforegoing limits, and subject to the other terms and conditions hereof, theBorrower may borrow under this Section 2.04, prepay under Section 2.05,and reborrow under this Section 2.04.  Each Swing Line Loan shall be a Base RateLoan.  Immediately upon the making of aSwing Line Loan, each Domestic Lender shall be deemed to, and herebyirrevocably and unconditionally agrees to, purchase from the Swing Line Lendera risk participation in such Swing Line Loan in an amount equal to the productof such Domestic Lender’s Applicable Percentage times the amount of suchSwing Line Loan.

 

(b)           Borrowing Procedures.  Each Borrowing of Swing Line Loans shall bemade upon the Borrower’s irrevocable notice to the Swing Line Lender and theAdministrative Agent, which may be given by telephone.  Each such notice must be received by theSwing Line Lender and the Administrative Agent not later than 1:00 p.m. onthe requested borrowing date, and shall specify (i) the amount to beborrowed, which shall be a minimum principal amount of $250,000 and integralmultiples of $100,000 in excess thereof, and (ii) the requested borrowingdate, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery tothe Swing Line Lender and the Administrative Agent of a written Swing Line LoanNotice, appropriately completed and signed by a Responsible Officer of theBorrower.  Promptly after receipt by theSwing Line Lender of any telephonic Swing Line Loan Notice, the Swing LineLender will confirm with the Administrative Agent (by telephone or in writing)that the Administrative Agent has also received such Swing Line Loan Noticeand, if not, the Swing Line Lender will notify the Administrative Agent (bytelephone or in writing) of the contents thereof.  Unless the Swing Line Lender has received notice(by telephone or in writing) from the Administrative Agent (including at therequest of any Domestic Lender) prior to 2:00 p.m. on the date of theproposed Borrowing of Swing Line Loans (A) directing the Swing Line Lendernot to make such Swing Line Loan as a result of the limitations set forth inthe first proviso to the first sentence of Section 2.04(a), or (B) thatone or more of the applicable conditions specified in Article V isnot then satisfied, then, subject to the terms and conditions hereof, the SwingLine Lender will, not later than 3:00 p.m. on the borrowing date specifiedin such Swing Line Loan Notice, make the amount of its Swing Line Loanavailable to the Borrower.

 

(c)           Refinancing of Swing Line Loans.

 

(i)            The Swing Line Lender at anytime in its sole and absolute discretion may request, on behalf of the Borrower(which hereby irrevocably requests and authorizes the Swing Line Lender to sorequest on its behalf), that each Domestic Lender make a Base Rate Loan in anamount equal to such Domestic Lender’s Applicable Percentage of the amount ofSwing Line Loans then outstanding.  Suchrequest shall be made in writing (which written request shall be deemed to be aLoan Notice for purposes hereof) and in accordance with the requirements of Section 2.02,without regard to the minimum and multiples specified therein for the principalamount of Base Rate Loans, but subject to the conditions set forth in Section 5.02(other than the delivery of a Loan Notice) and provided that, after givingeffect to such Borrowing, the Total Revolving Outstandings shall not exceed theMaximum Permitted Revolving Outstandings. The Swing Line Lender shall furnish the Borrower with a copy of theapplicable Loan Notice promptly after delivering such notice to the AdministrativeAgent.  Each Domestic Lender shall makean amount equal to its Applicable Percentage of the amount specified in suchLoan Notice available to the Administrative Agent in immediately availablefunds for the account of the Swing Line Lender at the Administrative Agent’sOffice not later than 1:00 p.m. on the day specified in such Loan Notice,whereupon, subject to Section 2.04(c)(ii), each Domestic Lenderthat so makes funds available shall be deemed to have made a Base Rate Loan tothe Borrower in such amount.  TheAdministrative Agent shall remit the funds so received to the Swing LineLender.

 

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(ii)           If for any reason any SwingLine Loan cannot be refinanced by such a Borrowing of Domestic Revolving Loansin accordance with Section 2.04(c)(i), the request for Base RateLoans submitted by the Swing Line Lender as set forth herein shall be deemed tobe a request by the Swing Line Lender that each of the Domestic Lenders fundits risk participation in the relevant Swing Line Loan and each Domestic Lender’spayment to the Administrative Agent for the account of the Swing Line Lenderpursuant to Section 2.04(c)(i) shall be deemed payment inrespect of such participation.

 

(iii)          If any Domestic Lender failsto make available to the Administrative Agent for the account of the Swing LineLender any amount required to be paid by such Domestic Lender pursuant to theforegoing provisions of this Section 2.04(c) by the timespecified in Section 2.04(c)(i), the Swing Line Lender shall beentitled to recover from such Domestic Lender (acting through theAdministrative Agent), on demand, such amount with interest thereon for theperiod from the date such payment is required to the date on which such paymentis immediately available to the Swing Line Lender at a rate per annum equal tothe greater of the Federal Funds Rate and a rate determined by the Swing Line Lenderin accordance with banking industry rules on interbank compensation.  A certificate of the Swing Line Lendersubmitted to any Domestic Lender (through the Administrative Agent) withrespect to any amounts owing under this clause (iii) shall be conclusiveabsent manifest error.

 

(iv)          Each Domestic Lender’sobligation to make Domestic Revolving Loans or to purchase and fund riskparticipations in Swing Line Loans pursuant to this Section 2.04(c) shallbe absolute and unconditional and shall not be affected by any circumstance,including (A) any setoff, counterclaim, recoupment, defense or other rightthat such Domestic Lender may have against the Swing Line Lender, the Borroweror any other Person for any reason whatsoever, (B) the occurrence orcontinuance of a Default, or (C) any other occurrence, event or condition,whether or not similar to any of the foregoing; provided, however,that each Domestic Lender’s obligation to make Domestic Revolving Loanspursuant to this Section 2.04(c) is subject to the conditionsset forth in Section 5.02. No such purchase or funding of risk participations shall relieve orotherwise impair the obligation of the Borrower to repay Swing Line Loans,together with interest as provided herein.

 

(d)           Repayment of Participations.

 

(i)            At any time after anyDomestic Lender has purchased and funded a risk participation in a Swing LineLoan, if the Swing Line Lender receives any payment on account of such SwingLine Loan, the Swing Line Lender will distribute to such Domestic Lender itsApplicable Percentage of such payment (appropriately adjusted, in the case ofinterest payments, to reflect the period of time during which such DomesticLender’s risk participation was funded) in the same funds as those received bythe Swing Line Lender.

 

(ii)           If any payment received bythe Swing Line Lender in respect of principal or interest on any Swing LineLoan is required to be returned by the Swing Line Lender under any of thecircumstances described in Section 11.05 (including pursuant to anysettlement entered into by the Swing Line Lender in its discretion), eachDomestic Lender shall pay to the Swing Line Lender its Applicable Percentagethereof on demand of the Administrative Agent, plus interest thereonfrom the date of such demand to the date such amount is returned, at a rate perannum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of theSwing Line Lender.  The obligations ofthe Domestic Lenders under this clause shall survive the payment in full of theObligations and the termination of this Agreement.

 

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(e)           Interest for Account of Swing Line Lender.  The Swing Line Lender shall be responsiblefor invoicing the Borrower for interest on the Swing Line Loans.  Until each Domestic Lender funds its DomesticRevolving Loans that are Base Rate Loans or risk participation pursuant to thisSection 2.04 to refinance such Domestic Lender’s ApplicablePercentage of any Swing Line Loan, interest in respect of such ApplicablePercentage shall be solely for the account of the Swing Line Lender.

 

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

 

2.05         Prepayments.

 

(a)           Voluntary Prepayments.

 

(i)            Revolving Loans.  Subject to the last sentence of this Section 2.05(a)(i),the Borrower may, upon notice from the Borrower to the Administrative Agent, atany time or from time to time voluntarily prepay Revolving Loans in whole or inpart without premium or penalty; provided that (A) such notice mustbe received by the Administrative Agent not later than 11:00 a.m. (1) threeBusiness Days prior to any date of prepayment of Eurocurrency Rate Loansdenominated in Dollars, (2) four Business Days prior to any date ofprepayment of Eurocurrency Rate Loans denominated in the Alternative Currencyand (3) on the date of prepayment of Base Rate Loans; (B) any suchprepayment of Eurocurrency Rate Loans shall be in a principal amount of$1,000,000 or a whole multiple of $1,000,000 in excess thereof (or, if less,the entire principal amount thereof then outstanding); and (C) anyprepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or awhole multiple of $500,000 in excess thereof (or, if less, the entire principalamount thereof then outstanding).  Eachsuch notice shall specify the date and amount of such prepayment and the Type(s) ofLoans to be prepaid and whether the Loans to be prepaid are the RevolvingLoans.  The Administrative Agent willpromptly notify each Lender of its receipt of each such notice, and of theamount of such Lender’s Applicable Percentage of such prepayment.  If such notice is given by the Borrower, theBorrower shall make such prepayment and the payment amount specified in suchnotice shall be due and payable on the date specified therein.  Any prepayment of a Eurocurrency Rate Loanshall be accompanied by all accrued interest on the amount prepaid, togetherwith any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to theLoans of the Lenders in accordance with their respective ApplicablePercentages.

 

(ii)           Swing Line Loans.  The Borrower may, upon notice to the SwingLine Lender (with a copy to the Administrative Agent), at any time or from timeto time, voluntarily prepay Swing Line Loans in whole or in part withoutpremium or penalty; provided that (i) such notice must be receivedby the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.on the date of the prepayment, and (ii) any such prepayment shall be in aminimum principal amount of $500,000 or a whole multiple of $100,000 in excessthereof (or, if less, the entire principal thereof then outstanding).  Each such notice shall specify the date andamount of such prepayment.  If suchnotice is given by the Borrower, the Borrower shall make such prepayment and thepayment amount specified in such notice shall be due and payable on the datespecified therein.

 

(b)           Mandatory Prepayments of Loans.

 

(i)            (A)  Domestic Revolving Commitments.  If for any reason (1) the TotalRevolving Outstandings at any time exceed the Maximum Permitted RevolvingOutstandings or (2) the Total Domestic Revolving Outstandings at any timeexceed the Aggregate Domestic 

 

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RevolvingCommitments then in effect,  the Borrowershall immediately prepay the Domestic Revolving Loans and/or the Swing LineLoans and/or Cash Collateralize the L/C Obligations in an aggregate amountequal to such excess; provided, however, that the Borrower shallnot be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b) unlessafter the prepayment in full of the Domestic Revolving Loans and the Swing LineLoans, the Total Domestic Revolving Outstandings exceed the Maximum PermittedRevolving Outstandings.  All amountsrequired to be paid pursuant to this Section 2.05(b)(i)(A) shallbe applied to Domestic Revolving Loans and Swing Line Loans and (after allDomestic Revolving Loans and Swing Line Loans have been repaid) to CashCollateralize L/C Obligations.

 

(B)           Euro RevolvingCommitments.  If for anyreason (1) the Total Revolving Outstandings at any time exceed the MaximumPermitted Revolving Outstandings or (2) the Total Euro RevolvingOutstandings at any time exceed the Aggregate Euro Revolving Commitments thenin effect,  the Borrower shallimmediately prepay the Euro Revolving Loans in an aggregate amount equal tosuch excess.  All amounts required to bepaid pursuant to this Section 2.05(b)(i)(B) shall be appliedto Euro Revolving Loans.

 

(ii)           If the Administrative Agent notifies the Borrower atany time that the Outstanding Amount of all Loans denominated in AlternativeCurrencies at such time exceeds an amount equal to 105% of the Aggregate EuroRevolving Commitments then in effect, then, within two Business Days afterreceipt of such notice, the Borrower shall prepay Loans in an aggregate amountsufficient to reduce such Outstanding Amount as of such date of payment to anamount not to exceed 100% of the Euro Revolving Commitments then in effect.

 

2.06         Termination or Reduction ofAggregate Revolving Commitments.

 

(a)           Optional Reductions.  The Borrower may, upon notice to theAdministrative Agent, terminate the Aggregate Domestic Revolving Commitmentsand/or the Aggregate Euro Revolving Commitments, or from time to timepermanently reduce the Aggregate Domestic Revolving Commitments and/or theAggregate Euro Revolving Commitments to an amount not less than the OutstandingAmount of Revolving Loans, Swing Loans and L/C Obligations; providedthat (i) any such notice shall be received by the Administrative Agent notlater than 12:00 noon five (5) Business Days prior to the date oftermination or reduction, (ii) any such partial reduction shall be in anaggregate amount of $2,000,000 or any whole multiple of $1,000,000 in excessthereof, (iii) the Borrower shall not terminate or reduce (A) theAggregate Revolving Commitments if, after giving effect thereto and to anyconcurrent prepayments hereunder, the Total Revolving Outstandings plus theAlternative Currency Reserve would exceed the Maximum Permitted RevolvingOutstandings, (B) the Aggregate Domestic Revolving Commitments if, aftergiving effect thereto and to any concurrent prepayments hereunder, the TotalDomestic Revolving Outstandings would exceed the Aggregate Domestic RevolvingCommitments, (C) the Aggregate Euro Revolving Commitments if, after givingeffect thereto and to any concurrent prepayments hereunder, the Total EuroRevolving Outstandings would exceed the Aggregate Euro Revolving Commitments, (D) theLetter of Credit Sublimit if, after giving effect thereto, the OutstandingAmount of L/C Obligations not fully Cash Collateralized hereunder would exceedthe Letter of Credit Sublimit, or (E) the Swing Line Sublimit if, aftergiving effect thereto and to any concurrent prepayments hereunder, theOutstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit and(iv) if, after giving effect to any reduction of the Aggregate RevolvingCommitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceedsthe amount of the Maximum Permitted Revolving Outstandings, such Sublimit shallbe automatically reduced by the amount of such excess.

 

(b)           Notice.  The Administrative Agent will promptly notifythe Lenders of any termination or reduction of the Letter of Credit Sublimit,Swing Line Sublimit or the Aggregate Revolving

 

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Commitmentsunder this Section 2.06. Upon any reduction of (i) the Aggregate Domestic RevolvingCommitments, the Domestic Revolving Commitment of each Domestic Lender shall bereduced by such Domestic Lender’s Applicable Percentage of such reductionamount and (ii) the Aggregate Euro Revolving Commitments, the EuroRevolving Commitment of each Euro Lender shall be reduced by such Euro Lender’sApplicable Percentage of such reduction amount. All fees in respect of the Aggregate Revolving Commitments accrued untilthe effective date of any termination of the Aggregate Revolving Commitmentsshall be paid on the effective date of such termination.

 

 

2.07         Repayment of Loans.

 

(a)           Domestic Revolving Loans.  The Borrower shall repay to the DomesticLenders on the Maturity Date the aggregate principal amount of all DomesticRevolving Loans outstanding on such date.

 

(b)           Euro Revolving Loans.  The Borrower shall repay to the Euro Lenderson the Maturity Date the aggregate principal amount of all Euro Revolving Loansoutstanding on such date.

 

(c)           Swing Line Loans.  The Borrower shall repay each Swing Line Loanon the earlier to occur of (i) the date within one (1) Business Dayof demand therefor by the Swing Line Lender and (ii) the Maturity Date.

 

2.08         Interest.

 

(a) Subject to the provisions ofsubsection (b) below, (i) each Eurocurrency Rate Loan shall bearinterest on the outstanding principal amount thereof for each Interest Periodat a rate per annum equal to the Eurocurrency Rate for such Interest Period plusthe Applicable Rate plus (in the case of a Eurocurrency Rate Loan of anyLender which is lent from a Lending Office in the United Kingdom or aParticipating Member State) the Mandatory Cost; (ii) each Base Rate Loanshall bear interest on the outstanding principal amount thereof from theapplicable borrowing date at a rate per annum equal to the Base Rate plusthe Applicable Rate; and (iii) each Swing Line Loan shall bear interest onthe outstanding principal amount thereof from the applicable borrowing date ata rate per annum equal to the Base Rate plus the Applicable Rate.

 

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

 

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

 

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

 

(c)           Interest on each Loan shall be due and payable inarrears on each Interest Payment Date applicable thereto and at such othertimes as may be specified herein. Interest hereunder shall be due and payable in accordance with the termshereof before and after judgment, and before and after the commencement of anyproceeding under any Debtor Relief Law.

 

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2.09         Fees.

 

Inaddition to certain fees described in subsections (i) and (j) of Section 2.03:

 

(a)           Commitment Fee.  The Borrower shall pay to the AdministrativeAgent, a commitment fee in Dollars (i) for the account of each DomesticLender in accordance with its Applicable Percentage, at a rate per annum equalto the product of (A) the Applicable Rate times (B) the actualdaily amount by which the Aggregate Domestic Revolving Commitments exceed thesum of (1) the Outstanding Amount of Domestic Revolving Loans and (2) theOutstanding Amount of L/C Obligations and (ii) the account of each EuroLender in accordance with its Applicable Percentage, at a rate per annum equalto the product of (A) the Applicable Rate times (B) the actualdaily amount by which the Aggregate Euro Revolving Commitments exceed theOutstanding Amount of Euro Revolving Loans. The commitment fee shall accrue atall times during the Availability Period, including at any time during whichone or more of the conditions in Article V is not met, and shall bedue and payable quarterly in arrears on the last Business Day of each March,June, September and December, commencing with the first such date to occurafter the Closing Date, and on the Maturity Date. The commitment fee shall becalculated quarterly in arrears, and if there is any change in the ApplicableRate during any quarter, the actual daily amount shall be computed andmultiplied by the Applicable Rate separately for each period during suchquarter that such Applicable Rate was in effect.  For purposes of clarification, Swing LineLoans shall not be considered outstanding for purposes of determining theunused portion of the Aggregate Domestic Revolving Commitments.

 

(b)           Fee Letter.  The Borrower shall pay to BAS and theAdministrative Agent for their own respective accounts fees in the amounts andat the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall be non-refundablefor any reason whatsoever.

 

2.10         Computation of Interest andFees; Retroactive Adjustments of Applicable Rate.

 

(a)           All computations of interestfor Base Rate Loans when the Base Rate is determined by Bank of America’s “primerate” shall be made on the basis of a year of 365 or 366 days, as the case maybe, and actual days elapsed.  All othercomputations of fees and interest shall be made on the basis of a 360-day yearand actual days elapsed (which results in more fees or interest, as applicable,being paid than if computed on the basis of a 365-day year).  Interest shall accrue on each Loan for theday on which the Loan is made, and shall not accrue on a Loan, or any portionthereof, for the day on which the Loan or such portion is paid, providedthat any Loan that is repaid on the same day on which it is made shall, subjectto Section 2.12(a), bear interest for one day.  Each determination by the AdministrativeAgent of an interest rate or fee hereunder shall be conclusive and binding forall purposes, absent manifest error.

 

(b)           If,as a result of any restatement of or other adjustment to the financialstatements of the Borrower or for any other reason, the Borrower or the Lendersdetermine that (i) the Consolidated Leverage Ratio as calculated by theBorrower as of any applicable date was inaccurate and (ii) a propercalculation of the Consolidated Leverage Ratio would have resulted in higherpricing for such period, the Borrower shall immediately and retroactively beobligated to pay to the Administrative Agent for the account of the applicableLenders, promptly on demand by the Administrative Agent (or, after theoccurrence of an actual or deemed entry of an order for relief with respect tothe Borrower under the Bankruptcy Code of the United States, automatically andwithout further action by the Administrative Agent, any Lender or the L/CIssuer), an amount equal to the excess of the amount of interest and fees thatshould have been paid for such period over the amount of interest and feesactually paid for such period.  Thisparagraph shall not limit the rights of the Administrative Agent, any Lender orthe L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(i) or2.08(b) or under Article IX.  The 

 

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Borrower’s obligations under this paragraph shallsurvive the termination of the Commitments of all of the Lenders and therepayment of all other Obligations hereunder.

 

2.11         Evidence of Debt.

 

(a)           The Credit Extensions madeby each Lender shall be evidenced by one or more accounts or records maintainedby such Lender and by the Administrative Agent in the ordinary course ofbusiness.  The accounts or records maintainedby the Administrative Agent and each Lender shall be conclusive absent manifesterror of the amount of the Credit Extensions made by the Lenders to theBorrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however,limit or otherwise affect the obligation of the Borrower hereunder to pay anyamount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintainedby any Lender and the accounts and records of the Administrative Agent inrespect of such matters, the accounts and records of the Administrative Agentshall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent,the Borrower shall execute and deliver to such Lender (through theAdministrative Agent) a promissory note, which shall evidence such Lender’sLoans in addition to such accounts or records. Each such promissory note shall (i) in the case of DomesticRevolving Loans, be in the form of Exhibit 2.11(a)(i) (a “DomesticRevolving Note”), (ii)  in the case of Euro Revolving Loans, be in theform of Exhibit 2.11(a)(ii) (a “Euro Revolving Note”)and  (ii) in the case of Swing LineLoans, be in the form of Exhibit 2.11(a)(iii) (a “SwingLine Note”).  Each Lender may attachschedules to its Note and endorse thereon the date, Type (if applicable),amount and maturity of its Loans and payments with respect thereto.

 

(b)           In addition to the accountsand records referred to in subsection (a), each Domestic Lender and the AdministrativeAgent shall maintain in accordance with its usual practice accounts or recordsevidencing the purchases and sales by such Domestic Lender of participations inLetters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintainedby the Administrative Agent and the accounts and records of any Lender inrespect of such matters, the accounts and records of the Administrative Agentshall control in the absence of manifest error.

 

2.12         Payments Generally; AdministrativeAgent’s Clawback.

 

(a)           General.  All payments to be made by the Borrower shallbe made without condition or deduction for any counterclaim, defense,recoupment or setoff.  Except asotherwise expressly provided herein and except with respect to principal of andinterest on Loans denominated in Dollars, all payments by the Borrowerhereunder shall be made to the Administrative Agent, for the account of therespective Domestic Lenders to which such payment is owed, at the applicableAdministrative Agent’s Office in Dollars and in Same Day Funds not later than2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by theBorrower hereunder with respect to principal and interest on Loans denominatedin the Alternative Currency shall be made to the Administrative Agent, for theaccount of the respective Euro Lenders to which such payment is owed, at theapplicable Administrative Agent’s Office in the Alternative Currency and inSame Day Funds not later than the Applicable Time specified by theAdministrative Agent on the dates specified herein.  Without limiting the generality of theforegoing, the Administrative Agent may require that any payments due underthis Agreement be made in the United States. If, for any reason, the Borrower is prohibited by any Law from makingany required payment hereunder in the Alternative Currency, the Borrower shallmake such payment in Dollars in the Dollar Equivalent of the AlternativeCurrency payment amount.  The AdministrativeAgent will promptly distribute to each Lender its Applicable Percentage (orother applicable share as provided herein) of such payment in like funds asreceived by wire transfer to such Lender’s Lending Office.  All payments received by the AdministrativeAgent (i) after 2:00 p.m., in the case of payments in Dollars, or(ii) after the Applicable Time specified by the Administrative Agent inthe case of payments in the 

 

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AlternativeCurrency, shall in each case be deemed received on the next succeeding BusinessDay and any applicable interest or fee shall continue to accrue.  If any payment to be made by the Borrowershall come due on a day other than a Business Day, payment shall be made on thenext following Business Day, and such extension of time shall be reflected incomputing interest or fees, as the case may be.

 

(b)          (i)  Funding by Lenders; Presumption byAdministrative Agent.  Unless theAdministrative Agent shall have received notice from a Lender prior to theproposed date of any Borrowing of Eurocurrency Rate Loans (or, in the case ofany Borrowing of Base Rate Loans, prior to 12:00 noon on the date of suchBorrowing) that such Lender will not make available to the Administrative Agentsuch Lender’s share of such Borrowing, the Administrative Agent may assume thatsuch Lender has made such share available on such date in accordance with Section 2.02(or, in the case of any Borrowing of Base Rate Loans, that such Lender has madesuch share available in accordance with and at the time required by Section 2.02)and may, in reliance upon such assumption, make available to the Borrower acorresponding amount.  In such event, ifa Lender has not in fact made its share of the applicable Borrowing availableto the Administrative Agent, then the applicable Lender and the Borrowerseverally agree to pay to the Administrative Agent forthwith on demand suchcorresponding amount in immediately available funds with interest thereon, foreach day from and including the date such amount is made available to theBorrower to but excluding the date of payment to the Administrative Agent, at (A) inthe case of a payment to be made by such Lender, the Overnight Rate and (B) inthe case of a payment to be made by the Borrower, the interest rate applicableto Base Rate Loans.  If the Borrower andsuch Lender shall pay such interest to the Administrative Agent for the same oran overlapping period, the Administrative Agent shall promptly remit to theBorrower the amount of such interest paid by the Borrower for such period.  If such Lender pays its share of theapplicable Borrowing to the Administrative Agent, then the amount so paid shallconstitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be withoutprejudice to any claim the Borrower may have against a Lender that shall havefailed to make such payment to the Administrative Agent.

 

(ii)           Payments byBorrower; Presumptions by Administrative Agent.  Unless the Administrative Agent shall havereceived notice from the Borrower prior to the date on which any payment is dueto the Administrative Agent for the account of the Lenders or the L/C Issuerhereunder that the Borrower will not make such payment, the AdministrativeAgent may assume that the Borrower has made such payment on such date inaccordance herewith and may, in reliance upon such assumption, distribute tothe Lenders or the L/C Issuer, as the case may be, the amount due.  In such event, if the Borrower has not infact made such payment, then each of the Lenders or the L/C Issuer, as the casemay be, severally agrees to repay to the Administrative Agent forthwith ondemand the amount so distributed to such Lender or the L/C Issuer, inimmediately available funds with interest thereon, for each day from andincluding the date such amount is distributed to it to but excluding the dateof payment to the Administrative Agent, at the Overnight Rate.

 

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

 

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

 

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(d)           Obligations of Lenders Several.  The obligations of the Lenders hereunder tomake Loans, to fund participations in Letters of Credit and Swing Line Loansand to make payments pursuant to Section 11.04(c) are severaland not joint.  The failure of any Lenderto make any Loan, to fund any such participation or to make any payment under Section 11.04(c) onany date required hereunder shall not relieve any other Lender of itscorresponding obligation to do so on such date, and no Lender shall beresponsible for the failure of any other Lender to so make its Loan, topurchase its participation or to make its payment under Section 11.04(c).

 

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

 

2.13         Sharing of Payments byLenders.

 

Ifany Lender shall, by exercising any right of setoff or counterclaim orotherwise, obtain payment in respect of any principal of or interest on any ofthe Loans made by it, or the participations in L/C Obligations or in Swing LineLoans held by it resulting in such Lender’s receiving payment of a proportionof the aggregate amount of such Loans or participations and accrued interestthereon greater than its prorata share thereof as providedherein, then the Lender receiving such greater proportion shall (a) notifythe Administrative Agent of such fact, and (b) purchase (for cash at facevalue) participations in the Loans and subparticipations in L/C Obligations andSwing Line Loans of the other Lenders, if such Lender is a Domestic Lender, ormake such other adjustments among the group of Domestic Lenders or EuroLenders, as applicable, or as shall be equitable, so that the benefit of allsuch payments shall be shared by the Domestic Lenders or Euro Lenders, asapplicable, ratably in accordance with the aggregate amount of principal of andaccrued interest on their respective Loans and other amounts owing them, providedthat:

 

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

 

(ii)           the provisionsof this Section shall not be construed to apply to (x) any paymentmade by the Borrower pursuant to and in accordance with the express terms ofthis Agreement or (y) any payment obtained by a Lender as considerationfor the assignment of or sale of a participation in any of its Loans orsubparticipations in L/C Obligations or Swing Line Loans to any assignee orparticipant, other than to the Borrower or any Subsidiary thereof (as to whichthe provisions of this Section shall apply).

 

EachLoan Party consents to the foregoing and agrees, to the extent it mayeffectively do so under applicable law, that any Lender acquiring aparticipation pursuant to the foregoing arrangements may exercise against suchLoan Party rights of setoff and counterclaim with respect to such participationas fully as if such Lender were a direct creditor of such Loan Party in theamount of such participation.

 

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ARTICLE III

 

TAXES, YIELD PROTECTION ANDILLEGALITY

 

3.01         Taxes.

 

(a)           Payments Free of Taxes.  Any and all payments by or on account of anyobligation of the Loan Parties hereunder or under any other Loan Document shallbe made free and clear of and without reduction or withholding for anyIndemnified Taxes or Other Taxes, provided that if any Loan Party shallbe required by applicable law to deduct any Indemnified Taxes (including anyOther Taxes) from such payments, then (i) the sum payable shall beincreased as necessary so that after making all required deductions (includingdeductions applicable to additional sums payable under this Section) theAdministrative Agent, any Lender or the L/C Issuer, as the case may be,receives an amount equal to the sum it would have received had no suchdeductions been made, (ii) such Loan Party shall make such deductions and (iii) suchLoan Party shall timely pay the full amount deducted to the relevantGovernmental Authority in accordance with applicable law.

 

(b)           Payment of Other Taxes by the Loan Parties.  Without limiting the provisions of subsection(a) above, the Loan Parties shall timely pay any Other Taxes to therelevant Governmental Authority in accordance with applicable law.

 

(c)           Indemnification by the Loan Parties.  The Loan Parties shall indemnify theAdministrative Agent, each Lender and the L/C Issuer, within 10 days afterdemand therefor, for the full amount of any Indemnified Taxes or Other Taxes(including Indemnified Taxes or Other Taxes imposed or asserted on or attributableto amounts payable under this Section) paid by the Administrative Agent, suchLender or the L/C Issuer, as the case may be, and any penalties, interest andreasonable expenses arising therefrom or with respect thereto, whether or notsuch Indemnified Taxes or Other Taxes were correctly or legally imposed orasserted by the relevant Governmental Authority.  A certificate as to the amount of suchpayment or liability delivered to the Borrower by a Lender or the L/C Issuer(with a copy to the Administrative Agent), or by the Administrative Agent onits own behalf or on behalf of a Lender or the L/C Issuer, shall be conclusiveabsent manifest error.

 

(d)           Evidence of Payments.  As soon as practicable after any payment ofIndemnified Taxes or Other Taxes by any Loan Party to a Governmental Authority,the Borrower shall deliver to the Administrative Agent the original or acertified copy of a receipt issued by such Governmental Authority evidencingsuch payment, a copy of the return reporting such payment or other evidence ofsuch payment reasonably satisfactory to the Administrative Agent.

 

(e)           Status of Lenders.  Any Foreign Lender that is entitled to anexemption from or reduction of withholding tax under the law of thejurisdiction in which the Borrower is resident for tax purposes, or any treatyto which such jurisdiction is a party, with respect to payments hereunder orunder any other Loan Document shall deliver to the Borrower (with a copy to theAdministrative Agent), at the time or times prescribed by applicable law orreasonably requested by the Borrower or the Administrative Agent, such properlycompleted and executed documentation prescribed by applicable law as willpermit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if requested by theBorrower or the Administrative Agent, shall deliver such other documentationprescribed by applicable law or reasonably requested by the Borrower or theAdministrative Agent as will enable the Borrower or the Administrative Agent todetermine whether or not such Lender is subject to backup withholding orinformation reporting requirements.

 

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Withoutlimiting the generality of the foregoing, in the event that the Borrower isresident for tax purposes in the United States, any Foreign Lender shalldeliver to the Borrower and the Administrative Agent (in such number of copiesas shall be requested by the recipient) on or prior to the date on which such ForeignLender becomes a Lender under this Agreement (and from time to time thereafterupon the request of the Borrower or the Administrative Agent, but only if suchForeign Lender is legally entitled to do so), whichever of the following isapplicable:

 

(i)            duly completed copies of Internal Revenue Service Form W-8BENclaiming eligibility for benefits of an income tax treaty to which the UnitedStates is a party,

 

(ii)           duly completed copies of Internal Revenue Service Form W-8ECI,

 

(iii)          in the case of a Foreign Lender claiming thebenefits of the exemption for portfolio interest under section 881(c) ofthe Internal Revenue Code, (x) a certificate to the effect that suchForeign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) ofthe Internal Revenue Code, (B) a “10 percent shareholder” of the Borrowerwithin the meaning of section 881(c)(3)(B) of the Internal Revenue Code,or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) ofthe Internal Revenue Code and (y) duly completed copies of  Internal Revenue Service Form W-8BEN, or

 

(iv)          any other form prescribed by applicable law as abasis for claiming exemption from or a reduction in United States Federalwithholding tax duly completed together with such supplementary documentationas may be prescribed by applicable law to permit the Borrower to determine thewithholding or deduction required to be made.

 

(f)            Each Lender, (i) that is a “U.S. Person” asdefined in Section 7701(a)(30) of the Internal Revenue Code and (ii) whosename does not include “Incorporated,” “Inc.,” “Corporation,” “Corp.,” “P.C.,” “insurancecompany” or “assurance company” shall deliver to the Borrower and theAdministrative Agent (in such number of copies as shall be requested by therecipient) duly completed and executed copies of Internal Revenue Service Form W-9.  Such forms shall be delivered by such Lenderon or prior to the date on which such Lender becomes a Lender under thisAgreement.  In addition, each such Lendershall deliver such forms a reasonable period of time before any form previouslydelivered by such Lender becomes invalid or obsolete.

 

(g)           Treatment of Certain Refunds.  If the Administrative Agent, any Lender orthe L/C Issuer determines, in its sole discretion, that it has received arefund of any Taxes or Other Taxes as to which it has been indemnified by anyLoan Party or with respect to which any Loan Party has paid additional amountspursuant to this Section, it shall pay to such Loan Party an amount equal tosuch refund (but only to the extent of indemnity payments made, or additionalamounts paid, by such Loan Party under this Section with respect to theTaxes or Other Taxes giving rise to such refund), net of all out-of-pocketexpenses of the Administrative Agent, such Lender or the L/C Issuer, as thecase may be, and without interest (other than any interest paid by the relevantGovernmental Authority with respect to such refund), provided that eachLoan Party, upon the request of the Administrative Agent, such Lender or theL/C Issuer, agrees to repay the amount paid over to such Loan Party (plusany penalties, interest or other charges imposed by the relevant GovernmentalAuthority) to the Administrative Agent, such Lender or the L/C Issuer in theevent the Administrative Agent, such Lender or the L/C Issuer is required torepay such refund to such Governmental Authority.  This subsection shall not be construed torequire the Administrative Agent, any Lender or the L/C Issuer to make availableits tax returns (or any other information relating to its taxes that it deemsconfidential) to the Borrower or any other Person.

 

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3.02         Illegality.

 

Ifany Lender determines that any Law has made it unlawful, or that anyGovernmental Authority has asserted that it is unlawful, for any Lender or itsapplicable Lending Office to make, maintain or fund Eurocurrency Rate Loans(whether denominated in Dollars or the Alternative Currency), or to determineor charge interest rates based upon the Eurocurrency Rate, or any GovernmentalAuthority has imposed material restrictions on the authority of such Lender topurchase or sell, or to take deposits of, Dollars or the Alternative Currencyin the applicable interbank market, then, in the London interbank market, then,on notice thereof by such Lender to the Borrower through the AdministrativeAgent, any obligation of such Lender to make or continue Eurocurrency RateLoans in the affected currency or currencies or, in the case of EurocurrencyRate Loans in Dollars, to convert Base Rate Loans to Eurocurrency Rate Loansshall be suspended until such Lender notifies the Administrative Agent and the Borrowerthat the circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrowershall, upon demand from such Lender (with a copy to the Administrative Agent),prepay or, if applicable and such Loans are denominated in Dollars, convert allsuch Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on thelast day of the Interest Period therefor, if such Lender may lawfully continueto maintain such Eurocurrency Rate Loans to such day, or immediately, if suchLender may not lawfully continue to maintain such Eurocurrency Rate Loans.  Upon any such prepayment or conversion, theBorrower shall also pay accrued interest on the amount so prepaid or converted.

 

3.03         Inability to Determine Rates.

 

Ifthe Required Lenders determine that for any reason in connection with anyrequest for a Eurocurrency Rate Loan or a conversion to or continuation thereofthat (a) deposits (whether in Dollars or the Alternative Currency) are notbeing offered to banks in the applicable offshore interbank market for suchcurrency for the applicable amount and Interest Period of such EurocurrencyRate Loan, (b)  adequate and reasonable means do not exist for determiningthe Eurocurrency Base Rate for any requested Interest Period with respect to aproposed Eurocurrency Rate Loan (whether denominated in Dollars or theAlternative Currency), or (c) the Eurocurrency Base Rate for any requestedInterest Period with respect to a proposed Eurocurrency Rate Loan does notadequately and fairly reflect the cost to such Lenders of funding suchEurocurrency Rate Loan, the Administrative Agent will promptly so notify theBorrower and each Lender.  Thereafter,the obligation of the Lenders to make or maintain Eurocurrency Rate Loans inthe affected currency or currencies shall be suspended until the AdministrativeAgent (upon the instruction of the Required Lenders) revokes such notice.  Upon receipt of such notice, the Borrower mayrevoke any pending request for a Borrowing of, conversion to or continuation ofEurocurrency Rate Loans in the affected currency or currencies or, failingthat, will be deemed to have converted such request into a request for aBorrowing of Base Rate Loans in the amount specified therein.

 

3.04         Increased Costs.

 

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

 

(i)            impose, modify or deem applicable any reserve,special deposit, compulsory loan, insurance charge or similar requirementagainst assets of, deposits with or for the account of, or credit extended or participatedin by, any Lender (except (A) any reserve requirement reflected in theEurocurrency Rate and (B) the requirements of the Bank of England and theFinancial Services Authority or the European Central Bank reflected in theMandatory Cost, other than as set forth below) or the L/C Issuer;

 

(ii)           subject any Lender or the L/C Issuer to any tax ofany kind whatsoever with respect to this Agreement, any Letter of Credit, anyparticipation in a Letter of Credit or any 

 

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EurocurrencyRate Loan made by it, or change the basis of taxation of payments to suchLender or the L/C Issuer in respect thereof (except for Indemnified Taxes orOther Taxes covered by Section 3.01 and the imposition of, or anychange in the rate of, any Excluded Tax payable by such Lender or the L/CIssuer);

 

(iii)          result in the failure of the Mandatory Cost, ascalculated hereunder, to represent the cost to any Lender of complying with therequirements of the Bank of England and/or the Financial Services Authority orthe European Central Bank in relation to its making, funding or maintainingEurocurrency Rate Loans; or

 

(iv)          impose on any Lender or any  L/C Issuer or the London interbank market anyother condition, cost or expense affecting this Agreement or Eurocurrency RateLoans made by such Lender or any Letter of Credit or participation therein;

 

andthe result of any of the foregoing shall be to increase the cost to such Lenderof making or maintaining any Eurocurrency Rate Loan (or of maintaining itsobligation to make any such Loan), or to increase the cost to such Lender orthe L/C Issuer of participating in, issuing or maintaining any Letter of Credit(or of maintaining its obligation to participate in or to issue any Letter ofCredit), or to reduce the amount of any sum received or receivable by suchLender or the L/C Issuer hereunder (whether of principal, interest or any otheramount) then, upon request of such Lender or the L/C Issuer, the Borrower willpay to such Lender or the L/C Issuer, as the case may be, such additionalamount or amounts as will compensate such Lender or the L/C Issuer, as the casemay be, for such additional costs incurred or reduction suffered.

 

(b)           Capital Requirements.  If any Lender or the L/C Issuer determinesthat any Change in Law affecting such Lender or the L/C Issuer or any LendingOffice of such Lender or such Lender’s or the L/C Issuer’s holding company, ifany, regarding capital requirements has or would have the effect of reducingthe rate of return on such Lender’s or the L/C Issuer’s capital or on thecapital of such Lender’s or the L/C Issuer’s holding company, if any, as aconsequence of this Agreement, the Commitments of such Lender or the Loans madeby, or participations in Letters of Credit held by, such Lender, or the Lettersof Credit issued by the L/C Issuer, to a level below that which such Lender orthe L/C Issuer or such Lender’s or the L/C Issuer’s holding company could haveachieved but for such Change in Law (taking into consideration such Lender’s orthe L/C Issuer’s policies and the policies of such Lender’s or the L/C Issuer’sholding company with respect to capital adequacy), then from time to time theBorrower will pay to such Lender or the L/C Issuer, as the case may be, suchadditional amount or amounts as will compensate such Lender or the L/C Issueror such Lender’s or the L/C Issuer’s holding company for any such reductionsuffered.

 

(c)           Certificates for Reimbursement.  A certificate of a Lender or the L/C Issuer settingforth the amount or amounts necessary to compensate such Lender or the L/CIssuer or its holding company, as the case may be, as specified in subsection (a) or(b) of this Section and delivered to the Borrower shall be conclusiveabsent manifest error.  The Borrowershall pay such Lender or the L/C Issuer, as the case may be, the amount shownas due on any such certificate within 10 days after receipt thereof.

 

(d)           Delay in Requests.  Failure or delay on the part of any Lender orthe L/C Issuer to demand compensation pursuant to the foregoing provisions ofthis Section shall not constitute a waiver of such Lender’s or the L/CIssuer’s right to demand such compensation, provided that the Borrowershall not be required to compensate a Lender or the L/C Issuer pursuant to theforegoing provisions of this Section for any increased costs incurred orreductions suffered more than nine months prior to the date that such Lender orthe L/C Issuer, as the case may be, notifies the Borrower of the Change in Lawgiving rise to such increased costs or reductions and of such Lender’s or theL/C Issuer’s intention to claim 

 

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compensationtherefor (except that, if the Change in Law giving rise to such increased costsor reductions is retroactive, then the nine-month period referred to aboveshall be extended to include the period of retroactive effect thereof).

 

3.05         Compensation for Losses.

 

Upondemand of any Lender (with a copy to the Administrative Agent) from time totime, the Borrower shall promptly compensate such Lender for and hold suchLender harmless from any loss, cost or expense incurred by it as a result of:

 

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

 

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

 

(c)           any failure by the Borrower to make payment of anyLoan or drawing under any Letter of Credit (or interest due thereon) denominatedin the Alternative Currency on its scheduled due date or any payment thereof ina different currency; or

 

(d)           any assignment of a Eurocurrency Rate Loan on a dayother than the last day of the Interest Period therefor as a result of arequest by the Borrower pursuant to Section 11.13;

 

excludingany loss of anticipated profits and including any loss or expense arising fromthe liquidation or reemployment of funds obtained by it to maintain such Loanor from fees payable to terminate the deposits from which such funds wereobtained.  The Borrower shall also payany customary administrative fees charged by such Lender in connection with theforegoing.

 

Forpurposes of calculating amounts payable by the Borrower to the Lenders underthis Section 3.05, each Lender shall be deemed to have funded eachEurocurrency Rate Loan made by it at the Eurocurrency Base Rate used indetermining the Eurocurrency Rate for such Loan by a matching deposit or otherborrowing in the London interbank eurocurrency market for a comparable amountand for a comparable period, whether or not such Eurocurrency Rate Loan was infact so funded.

 

3.06         Mitigation Obligations;Replacement of Lenders.

 

(a)           Designation of a Different Lending Office.  If any Lender requests compensation under Section 3.04,or the Borrower is required to pay any additional amount to any Lender or anyGovernmental Authority for the account of any Lender pursuant to Section 3.01,or if any Lender gives a notice pursuant to Section 3.02, then suchLender shall use reasonable efforts to designate a different Lending Office forfunding or booking its Loans hereunder or to assign its rights and obligationshereunder to another of its offices, branches or affiliates, if, in thejudgment of such Lender, such designation or assignment (i) wouldeliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,as the case may be, in the future, or eliminate the need for the noticepursuant to Section 3.02, as applicable, and (ii) in eachcase, would not subject such Lender to any unreimbursed cost or expense andwould not otherwise be disadvantageous to such Lender.  The Borrower hereby agrees to pay allreasonable costs and expenses incurred by any Lender in connection with anysuch designation or assignment.

 

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(b)           Replacement of Lenders.  If any Lender requests compensation under Section 3.04,or if the Borrower is required to pay any additional amount to any Lender orany Governmental Authority for the account of any Lender pursuant to Section 3.01,the Borrower may replace such Lender in accordance with Section 11.13.

 

3.07         Survival.

 

Allof the Borrower’s obligations under this Article III shall survivetermination of the Aggregate Revolving Commitments and repayment of all otherObligations hereunder.

 

ARTICLE IV

 

GUARANTY

 

4.01         The Guaranty.

 

Eachof the Guarantors hereby jointly and severally guarantees to each Lender, eachAffiliate of a Lender that enters into a Swap Contract or a Treasury ManagementAgreement with a Loan Party, and the Administrative Agent as hereinafterprovided, as primary obligor and not as surety, the prompt payment of theObligations in full when due (whether at stated maturity, as a mandatoryprepayment, by acceleration, as a mandatory cash collateralization orotherwise) strictly in accordance with the terms thereof.  The Guarantors hereby further agree that ifany of the Obligations are not paid in full when due (whether at statedmaturity, as a mandatory prepayment, by acceleration, as a mandatory cashcollateralization or otherwise), the Guarantors will, jointly and severally,promptly pay the same, without any demand or notice whatsoever, and that in thecase of any extension of time of payment or renewal of any of the Obligations,the same will be promptly paid in full when due (whether at extended maturity,as a mandatory prepayment, by acceleration, as a mandatory cashcollateralization or otherwise) in accordance with the terms of such extensionor renewal.

 

Notwithstandingany provision to the contrary contained herein or in any other of the LoanDocuments, Swap Contracts or Treasury Management Agreements, the obligations ofeach Guarantor under this Agreement and the other Loan Documents shall belimited to an aggregate amount equal to the largest amount that would notrender such obligations subject to avoidance under the Debtor Relief Laws orany comparable provisions of any applicable state law.

 

4.02         Obligations Unconditional.

 

Theobligations of the Guarantors under Section 4.01 are joint andseveral, absolute and unconditional, irrespective of the value, genuineness,validity, regularity or enforceability of any of the Loan Documents, SwapContracts or Treasury Management Agreements, or any other agreement orinstrument referred to therein, or any substitution, release, impairment orexchange of any other guarantee of or security for any of the Obligations, and,to the fullest extent permitted by applicable law, irrespective of any othercircumstance whatsoever which might otherwise constitute a legal or equitabledischarge or defense of a surety or guarantor, it being the intent of this Section 4.02that the obligations of the Guarantors hereunder shall be absolute andunconditional under any and all circumstances. Each Guarantor agrees that such Guarantor shall have no right ofsubrogation, indemnity, reimbursement or contribution against the Borrower orany other Guarantor for amounts paid under this Article IV untilsuch time as the Obligations have been paid in full and the Commitments haveexpired or terminated.  Without limitingthe generality of the foregoing, it is agreed that, to the fullest extentpermitted by law, the occurrence of any one or more of the following shall notalter or impair the liability of any Guarantor hereunder, which shall remainabsolute and unconditional as described above:

 

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(a)           at any time or from time to time, without notice toany Guarantor, the time for any performance of or compliance with any of theObligations shall be extended, or such performance or compliance shall bewaived;

 

(b)           any of the acts mentioned in any of the provisionsof any of the Loan Documents, any Swap Contract or Treasury ManagementAgreement between any Loan Party and any Lender, or any Affiliate of a Lender,or any other agreement or instrument referred to in the Loan Documents, suchSwap Contracts or such Treasury Management Agreements shall be done or omitted;

 

(c)           the maturity of any of the Obligations shall be accelerated,or any of the Obligations shall be modified, supplemented or amended in anyrespect, or any right under any of the Loan Documents, any Swap Contract orTreasury Management Agreement between any Loan Party and any Lender, or anyAffiliate of a Lender, or any other agreement or instrument referred to in theLoan Documents, such Swap Contracts or such Treasury Management Agreementsshall be waived or any other guarantee of any of the Obligations or anysecurity therefor shall be released, impaired or exchanged in whole or in partor otherwise dealt with;

 

(d)           any Lien granted to, or in favor of, theAdministrative Agent or any Lender or Lenders as security for any of theObligations shall fail to attach or be perfected; or

 

(e)           any of the Obligations shall be determined to bevoid or voidable (including, without limitation, for the benefit of anycreditor of any Guarantor) or shall be subordinated to the claims of any Person(including, without limitation, any creditor of any Guarantor).

 

Withrespect to its obligations hereunder, each Guarantor hereby expressly waivesdiligence, presentment, demand of payment, protest and all notices whatsoever,and any requirement that the Administrative Agent or any Lender exhaust anyright, power or remedy or proceed against any Person under any of the LoanDocuments, any Swap Contract or any Treasury Management Agreement between anyLoan Party and any Lender, or any Affiliate of a Lender, or any other agreementor instrument referred to in the Loan Documents, such Swap Contracts or suchTreasury Management Agreements, or against any other Person under any otherguarantee of, or security for, any of the Obligations.

 

4.03         Reinstatement.

 

Theobligations of the Guarantors under this Article IV shall beautomatically reinstated if and to the extent that for any reason any paymentby or on behalf of any Person in respect of the Obligations is rescinded ormust be otherwise restored by any holder of any of the Obligations, whether asa result of any proceedings in bankruptcy or reorganization or otherwise, andeach Guarantor agrees that it will indemnify the Administrative Agent and eachLender on demand for all reasonable costs and expenses (including, withoutlimitation, the fees, charges and disbursements of counsel) incurred by theAdministrative Agent or such Lender in connection with such rescission orrestoration, including any such costs and expenses incurred in defendingagainst any claim alleging that such payment constituted a preference,fraudulent transfer or similar payment under any bankruptcy, insolvency orsimilar law.

 

4.04         Certain Additional Waivers.

 

EachGuarantor agrees that such Guarantor shall have no right of recourse tosecurity for the Obligations, except through the exercise of rights ofsubrogation pursuant to Section 4.02 and through the exercise ofrights of contribution pursuant to Section 4.06.

 

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4.05         Remedies.

 

The Guarantors agree that, to the fullest extent permitted by law, asbetween the Guarantors, on the one hand, and the Administrative Agent and theLenders, on the other hand, the Obligations may be declared to be forthwith dueand payable as provided in Section 9.01 (and shall be deemed tohave become automatically due and payable in the circumstances provided in saidSection 9.02) for purposes of Section 4.01notwithstanding any stay, injunction or other prohibition preventing suchdeclaration (or preventing the Obligations from becoming automatically due andpayable) as against any other Person and that, in the event of such declaration(or the Obligations being deemed to have become automatically due and payable),the Obligations (whether or not due and payable by any other Person) shallforthwith become due and payable by the Guarantors for purposes of Section 4.01.  The Guarantors acknowledge and agree thattheir obligations hereunder are secured in accordance with the terms of theCollateral Documents and that the Lenders may exercise their remediesthereunder in accordance with the terms thereof.

 

4.06         Rights of Contribution.

 

TheGuarantors agree among themselves that, in connection with payments madehereunder, each Guarantor shall have contribution rights against the otherGuarantors as permitted under applicable law. Such contribution rights shall be subordinate and subject in right ofpayment to the obligations of such Guarantors under the Loan Documents and noGuarantor shall exercise such rights of contribution until all Obligations havebeen paid in full and the Commitments have terminated.

 

4.07         Guarantee of Payment;Continuing Guarantee.

 

Theguarantee in this Article IV is a guaranty of payment and not ofcollection, is a continuing guarantee, and shall apply to all Obligationswhenever arising.

 

ARTICLE V

 

CONDITIONS PRECEDENT TOCREDIT EXTENSIONS

 

5.01         Conditions of Initial CreditExtension.

 

Theobligation of the L/C Issuer and each Lender to make its initial CreditExtension hereunder is subject to satisfaction of the following conditionsprecedent:

 

(a)           Loan Documents.  Receipt by the Administrative Agent ofexecuted counterparts of this Agreement and the other Loan Documents, eachproperly executed by a Responsible Officer of the signing Loan Party and, inthe case of this Agreement, by each Lender.

 

(b)           Opinions of Counsel. Receipt by theAdministrative Agent of favorable opinions of legal counsel to the LoanParties, addressed to the Administrative Agent and each Lender, dated as of theClosing Date, and in form and substance satisfactory to the AdministrativeAgent.

 

(c)           Financial Statements.  The Administrative Agent shall have received:

 

(i)            the Audited FinancialStatements; and

 

(ii)           unaudited consolidatedfinancial statements of the Borrower and its Subsidiaries for the fiscalquarter ended March 31, 2007, including balance sheets and 

 

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statementsof income or operations, shareholders’ equity and cash flows (the “InterimFinancial Statements”).

 

(d)           No Material Adverse Change.  There shall not have occurred since December 31,2006, a material adverse change in, or a material adverse effect on, theoperations, business, assets, financial condition or results of operations ofthe Borrower and its Subsidiaries, taken as a whole.

 

(e)           Litigation.  There shall not exist any action, suit,investigation or proceeding pending or, to the knowledge of the Borrower,threatened in any court or before an arbitrator or Governmental Authority thatcould reasonably be expected to have a Material Adverse Effect.

 

(f)            Organization Documents, Resolutions, Etc.  Receipt by theAdministrative Agent of the following, each of which shall be originals orfacsimiles (followed promptly by originals), in form and substance satisfactoryto the Administrative Agent and its legal counsel:

 

(i)            copies of the OrganizationDocuments of each Loan Party certified to be true and complete as of a recentdate by the appropriate Governmental Authority of the state or otherjurisdiction of its incorporation or organization, where applicable, andcertified by a secretary or assistant secretary of such Loan Party to be trueand correct as of the Closing Date;

 

(ii)           such certificates ofresolutions or other action, incumbency certificates and/or other certificatesof Responsible Officers of each Loan Party as the Administrative Agent mayrequire evidencing the identity, authority and capacity of each ResponsibleOfficer thereof authorized to act as a Responsible Officer in connection withthis Agreement and the other Loan Documents to which such Loan Party is a party;and

 

(iii)          such documents andcertifications as the Administrative Agent may reasonably require to evidencethat each Loan Party is duly organized or formed, and is validly existing, ingood standing and qualified to engage in business in its state of organizationor formation.

 

(g)           Perfection and Priority of Liens.  Receipt by the Administrative Agent of thefollowing:

 

(i)            searches of UniformCommercial Code filings in the jurisdiction of formation of each Loan Party orwhere a filing would need to be made in order to perfect the AdministrativeAgent’s security interest in the Collateral, copies of the financing statementson file in such jurisdictions and evidence that no Liens exist other thanPermitted Liens;

 

(ii)           UCC financing statements foreach appropriate jurisdiction as is necessary, in the Administrative Agent’ssole discretion, to perfect the Administrative Agent’s security interest in theCollateral;

 

(iii)          all certificates evidencingany certificated Equity Interests pledged to the Administrative Agent pursuantto the Security Agreement, together with duly executed in blank and undatedstock powers attached thereto;

 

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(iv)          searches of ownership of,and Liens on, intellectual property of each Loan Party in the appropriategovernmental offices; and

 

(v)           duly executed notices ofgrant of security interest in the form required by the Security Agreement asare necessary, in the Administrative Agent’s sole discretion, to perfect theAdministrative Agent’s security interest in the intellectual property of theLoan Parties.

 

(vi)          fully executed and notarizedMortgages encumbering the fee interest of any Loan Party in each of the realproperties designated as a Mortgaged Property on Schedule 6.20(a);

 

(vii)         maps or plats of an as-builtsurvey of the sites of the Mortgaged Properties (other than the PennsylvaniaProperty) certified to the Administrative Agent and the title insurance companyissuing the policies referred to in Section 5.01(g)(ix) in a mannerreasonably satisfactory to each of the Administrative Agent and suchtitle insurance company, dated a date reasonably satisfactory to each ofthe Administrative Agent and such title insurance company by anindependent professional licensed land surveyor, which maps or plats and thesurveys on which they are based shall be sufficient to delete any standardprinted survey exception contained in the applicable title policy and be madein accordance with the Minimum Standard Detail Requirements for Land Title Surveysjointly established and adopted by the American Land Title Association andthe National Society of Professional Surveyors in 2005 with items 1, 2, 3, 4,6, 7a, 7b1, 8, 9, 10, 11a, 13, 16, 17 and 18 from Table A thereof completed (itbeing understood that delivery of the as-built survey delivered in connectionwith the Existing Credit Agreement, together with the title company’s omissionof the standard printed survey exception from the Administrative Agent’s titleinsurance policy with respect to the Mortgaged Property for which such surveyapplies, shall satisfy the requirements of this subclause (viii);

 

(viii)        ALTA mortgagee titleinsurance policies issued by a title insurance company reasonably acceptable tothe Administrative Agent with respect to each Mortgaged Property, assuring theAdministrative Agent that each of the Mortgages creates a valid and enforceablefirst priority mortgage lien on the applicable Mortgaged Property, free andclear of all defects and encumbrances except Permitted Liens, which titleinsurance policies shall otherwise be in form and substance reasonablysatisfactory to the Administrative Agent and shall include such endorsements asare reasonably requested by the Administrative Agent; and

 

(ix)           evidence as to (A) whetherany Mortgaged Property is in an area designated by the Federal EmergencyManagement Agency as having special flood or mud slide hazards (a “Flood HazardProperty”) and (B) if any Mortgaged Property is a Flood Hazard Property,(1) whether the community in which such Mortgaged Property is located isparticipating in the National Flood Insurance Program, (2) the applicableLoan Party’s written acknowledgment of receipt of written notification from theAdministrative Agent (a) as to the fact that such Mortgaged Property is aFlood Hazard Property and (b) as to whether the community in which eachsuch Flood Hazard Property is located is participating in the National FloodInsurance Program and (3) copies of insurance policies or certificates of insuranceof the Borrower and its Subsidiaries evidencing flood insurance satisfactory tothe Administrative Agent and naming the Administrative Agent as sole loss payeeon behalf of the Lenders.

 

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(h)           Evidence of Insurance.  Receipt by the Administrative Agent of copiesof insurance policies or certificates of insurance of the Loan Partiesevidencing liability and casualty insurance meeting the requirements set forthin the Loan Documents, including, but not limited to, naming the AdministrativeAgent as additional insured (in the case of liability insurance) or loss payee(in the case of hazard insurance) on behalf of the Lenders.

 

(i)            Closing Certificate.  Receipt by the Administrative Agent of acertificate signed by a Responsible Officer of the Borrower certifying that (i) theconditions specified in Sections 5.01(d) and (e) and Sections5.02(a) and (b) have been satisfied and (ii) theBorrower and its Subsidiaries (after giving effect to the Transactions) areSolvent on a consolidated basis.

 

(j)            Termination of Existing Credit Agreement.  Receipt by the Administrative Agent ofevidence that the Existing Credit Agreement concurrently with the Closing Dateis being paid in full and terminated and all Liens securing obligations underthe Existing Credit Agreement concurrently with the Closing Date are beingreleased.

 

(k)           Fees.  Receipt by the Administrative Agent and theLenders of any fees required to be paid on or before the Closing Date.

 

(l)            Attorney Costs.  Unless waived by the Administrative Agent,the Borrower shall have paid all fees, charges and disbursements of counsel tothe Administrative Agent to the extent invoiced prior to or on the ClosingDate, plus such additional amounts of such fees, charges and disbursementsas shall constitute its reasonable estimate of such fees, charges anddisbursements incurred or to be incurred by it through the closing proceedings(provided that such estimate shall not thereafter preclude a final settling ofaccounts between the Borrower and the Administrative Agent).

 

(m)          Other.  Receipt by the Administrative Agent and theLenders of such other documents, instruments, agreements and information asreasonably requested by the Administrative Agent or any Lender, including, butnot limited to, information regarding litigation, tax, accounting, labor,insurance, pension liabilities (actual or contingent), real estate leases,material contracts, debt agreements, property ownership, environmental matters,contingent liabilities and management of the Borrower and its Subsidiaries;such information may include, if requested by the Administrative Agent, assetappraisal reports and written audits of accounts receivable, inventory,payables, controls and systems.

 

Withoutlimiting the generality of the provisions of the last paragraph of Section 11.04,for purposes of determining compliance with the conditions specified in this Section 5.01,each Lender that has signed this Agreement shall be deemed to have consentedto, approved or accepted or to be satisfied with, each document or other matterrequired thereunder to be consented to or approved by or acceptable orsatisfactory to a Lender unless the Administrative Agent shall have receivednotice from such Lender prior to the proposed Closing Date specifying itsobjection thereto.

 

5.02         Conditions to all CreditExtensions.

 

Theobligation of each Lender to honor any Request for Credit Extension is subjectto the following conditions precedent:

 

(a)           The representations and warranties of the Borrowerand each other Loan Party contained in Article VI or any other LoanDocument, or which are contained in any document 

 

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furnishedat any time under or in connection herewith or therewith, shall be true andcorrect on and as of the date of such Credit Extension, except to the extentthat such representations and warranties specifically refer to an earlier date,in which case they shall be true and correct as of such earlier date, andexcept that for purposes of this Section 5.02, the representationsand warranties contained in subsections (a) and (b) of Section 6.05shall be deemed to refer to the most recent statements furnished pursuant toclauses (a) and (b), respectively, of Section 7.04.

 

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

 

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

 

(d)           In the case of a Credit Extension to be denominatedin the Alternative Currency, there shall not have occurred any change innational or international financial, political or economic conditions orcurrency exchange rates or exchange controls which in the reasonable opinion ofthe Administrative Agent, the Required Euro Lenders (in the case of any Loansto be denominated in the Alternative Currency) or the L/C Issuer (in the caseof any Letter of Credit to be denominated in the Alternative Currency) wouldmake it impracticable for such Credit Extension to be denominated in theAlternative Currency.

 

Each Request for Credit Extension submitted by the Borrower shall bedeemed to be a representation and warranty that the conditions specified in Sections5.02(a) and (b) have been satisfied on and as of the dateof the applicable Credit Extension.

 

ARTICLE VI

 

REPRESENTATIONS ANDWARRANTIES

 

TheLoan Parties represent and warrant to the Administrative Agent, the L/C Issuerand each of the Lenders that:

 

6.01         Organization; Power.

 

TheBorrower and each of the Subsidiaries (a) is duly organized, validlyexisting and in good standing under the laws of the jurisdiction of itsorganization except, solely with respect to certain Foreign Subsidiaries, asset forth on Schedule 6.01, (b) has all requisite power andauthority to own its property and assets and to carry on its business as nowconducted and as proposed to be conducted, (c) is qualified to do businessin, and is in good standing in, every jurisdiction where such qualification isrequired, except where the failure so to qualify could not reasonably beexpected to result in a Material Adverse Effect, and (d) has the power andauthority to execute, deliver and perform its obligations under each of theLoan Documents and each other agreement or instrument contemplated hereby orthereby to which it is or will be a party and, in the case of the Borrower, toborrow hereunder.

 

6.02         Authorization.

 

TheTransactions (a) have been duly authorized by all requisite corporate and,if required, stockholder action and (b) will not (i) violate(A) any provision of law, statute, rule or regulation, or of thecertificate or articles of incorporation or other constitutive documents orby-laws of the Borrower or any 

 

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Subsidiary,(B) any order of any Governmental Authority or (C) any provision ofany indenture, material agreement or other material instrument to which theBorrower or any Subsidiary is a party or by which any of them or any of theirproperty is or may be bound, (ii) except as set forth on Schedule 6.02,be in conflict with, result in a breach of or constitute (alone or with noticeor lapse of time or both) a default under, or give rise to any right toaccelerate or to require the prepayment, repurchase or redemption of anyobligation under any such indenture, material agreement or other materialinstrument or (iii) result in the creation or imposition of any Lien uponor with respect to any property or assets now owned or hereafter acquired bythe Borrower or any Subsidiary (other than any Lien created hereunder or underthe Collateral Documents).

 

6.03         Enforceability.

 

ThisAgreement has been duly executed and delivered by the Borrower and constitutes,and each other Loan Document when executed and delivered by each Loan Partyparty thereto will constitute, a legal, valid and binding obligation of suchLoan Party enforceable against such Loan Party in accordance with its terms.

 

6.04         Governmental Approvals.

 

Exceptas set forth on Schedule 6.04**,** no action,consent or approval of, registration or filing with or any other action by anyGovernmental Authority is or will be required in connection with theTransactions, except for (a) the filing of Uniform Commercial Codefinancing statements and filings with the United States Patent and TrademarkOffice and the United States Copyright Office, (b) the recordation of anyMortgages, (c) such as have been made or obtained and are in full forceand effect or which are not material to the consummation of the Transactionsand (d) those approvals, consents, exemptions, authorizations or otheractions, notices or filings, the failure of which to obtain or make could notreasonably be expected to have a Material Adverse Effect.

 

6.05         Financial Statements.

 

(a)           The Borrower has heretofore furnished to the Lenders(i) the consolidated balance sheet and related statements of operations,stockholders’ equity and cash flows of the Borrower and its consolidatedsubsidiaries as of and for the fiscal year ended December 31, 2006,audited by and accompanied by the unqualified opinion of Ernst & YoungLLP, independent public accountants and (ii) the unaudited consolidatedbalance sheets and related statements of operations, stockholders’ equity andcash flows of the Borrower and its consolidated subsidiaries as of the fiscalquarter ending March 31, 2007.  Suchfinancial statements present fairly, in all material respects, the financialcondition and results of operations and cash flows of the Borrower and itsconsolidated subsidiaries as of such dates and for such periods.  Except as set forth on Schedule 6.05(a),such balance sheets and the notes thereto disclose all material liabilities,direct or contingent, of the Borrower and its consolidated subsidiaries as ofthe dates thereof.  Such financialstatements were prepared in accordance with GAAP applied on a consistent basis,except that the unaudited financial statements are subject to normal year-endadjustments and do not contain notes thereto.

 

(b)           The Borrower has heretoforedelivered to the Lenders the unaudited pro forma consolidated balance sheet andrelated statements of operations, stockholders’ equity and cash flows of theBorrower and its consolidated subsidiaries, as well as pro forma levels ofConsolidated EBITDA, for the Borrower’s fiscal year ended December 31,2006 and as of and for the three months ending March 31, 2007, preparedgiving effect to the Transactions as if they had occurred on such date.  Such pro forma financial statements have beenprepared in good faith by the Borrower, based on the assumptions used to 

 

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preparethe pro forma financial information contained in the Confidential InformationMemorandum (which assumptions are believed by the Borrower on the date hereofto be reasonable), are based on the best information available to the Borroweras of the date of delivery thereof, accurately reflect, in all materialrespects, all adjustments required to be made to give effect to theTransactions and present fairly, in all material respects, on a pro forma basisthe estimated consolidated financial position of the Borrower and itsconsolidated Subsidiaries as of such date and for such periods, assuming thatthe Transactions had actually occurred at such date or at the beginning of suchperiod, as the case may be.  Theforecasts of financial performance of the Borrower and its Subsidiariesheretofore furnished to the Lenders have been prepared in good faith by theBorrower and based on assumptions believed by the Borrower to be reasonable (itbeing understood that such forecasts as to future events are not to be reviewedas facts and that actual results may differ materially from such forecasts).

 

6.06         No Material Adverse Change.

 

Noevent, change or condition has occurred that has had, or could reasonably beexpected to have, a material adverse effect on the business, operations,assets, liabilities, financial condition or results of operations of theBorrower and the Subsidiaries, taken as a whole, since December 31, 2006.

 

6.07         Title to Properties;Possession Under Leases.

 

(a)           The Borrower and each of the Subsidiaries has goodand marketable title to, or valid leasehold interests in, all its materialproperties and material assets, except for minor defects in title that do notmaterially interfere with its ability to conduct its business or to utilizesuch assets for their intended purposes and Liens permitted by Section 8.02and except where the failure to have such title could not reasonably beexpected to have, individually or in the aggregate, a Material AdverseEffect.  All such material properties andassets are free and clear of Liens, other than Liens expressly permitted by Section 8.02.

 

(b)           The use by the Borrower and each of the Subsidiariesof such Collateral and all such rights with respect to the foregoing do notinfringe on the rights of any Person other than such infringement which couldnot, individually or in the aggregate, reasonably be expected to result in aMaterial Adverse Effect.  No claim hasbeen made and remains outstanding that the Borrower’s or any Subsidiaries’ useof any Collateral does or may violate the rights of any third party that could,individually or in the aggregate, reasonably be expected to result in aMaterial Adverse Effect.

 

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(c)           The Borrower and each of theSubsidiaries has complied with all material obligations due and payable orrequired to be performed under all material leases to which it is a party andall such material leases are in full force and effect.  The Borrower and each of the Subsidiariesenjoys peaceful and undisturbed possession under all such leases, except wherethe failure to so enjoy could not reasonably be expected to have a MaterialAdverse Effect.

 

(d)           The Borrower and each of theSubsidiaries owns, or is licensed to use, all Patents, patent applications,Trademarks, trade names, servicemarks, Copyrights, technology, trade secrets,proprietary information, domain names, know-how and processes necessary for theconduct of its business as currently conducted (the “Intellectual Property”),except for those the failure to own or license which, individually or in theaggregate, could not reasonably be expected to result in a Material AdverseEffect.  No claim has been asserted inwriting and is pending by any person challenging or questioning the use of anysuch Intellectual Property or the validity or effectiveness of any suchIntellectual Property, nor does the Borrower or any Subsidiary know of anyvalid basis for any such claim, which claim is reasonably likely to have aMaterial Adverse Effect.  The use of suchIntellectual Property by the Borrower and each Subsidiary does not infringe therights of any person, except for such claims and infringements that, individuallyor in the aggregate, could not reasonably be expected to result in a MaterialAdverse Effect.

 

(e)           Except pursuant to licensesand other user agreements entered into by the Borrower or any Subsidiary in theordinary course of business, on and as of the date hereof (i) the Borrowerand each Subsidiary owns and possesses the right to use, and has done nothingto authorize or enable any other person to use, any of its Copyrights, Patentsor Trademarks and (ii) all Trademarks, Copyrights, Patents, service marks,trade names, patent rights, franchises, licenses and other intellectualproperty rights either registered or pending registration with the UnitedStates Copyright Office or the United States Patent and Trademark Office andowned by each Loan Party as of the Closing Date are set forth on Schedule 6.07hereto and are valid and in full force and effect, in each case, except for anyfailure which could not, individually or in the aggregate, be reasonably likelyto result in a Material Adverse Effect.

 

(f)            To the Borrower’s and eachSubsidiary’s knowledge, on and as of the date hereof, (i) there is noviolation by others of any right of the Borrower or such Subsidiary withrespect to any of its Copyrights, Patents or Trademarks, respectively, pledgedby it under the name of the Borrower or such Subsidiary, as the case may be,(ii) the Borrower or such Subsidiary is not infringing upon any Copyright,Patent or Trademark of any other person other than, in the case of clauses (i) and(ii), such violation or infringement that, individually or in the aggregate,could not reasonably be expected to have a Material Adverse Effect, and(iii) no proceedings have been instituted or are pending against theBorrower or such Subsidiary or threatened, and no claim against such theBorrower or such Subsidiary has been received by the Borrower or suchSubsidiary, as the case may be, alleging any such violation, except anyviolations which could not, individually or in the aggregate, be reasonablylikely to result in a Material Adverse Effect.

 

6.08         Subsidiaries.

 

Schedule 6.08 sets forth asof the Closing Date a list of (a) all Subsidiaries and the percentageownership interest of the Borrower and any Subsidiary therein, (b) theexact legal name and jurisdiction of organization or formation, as applicable,of each Loan Party, (c) the chief executive office of each Loan Party and (d) thefederal taxpayer identification number and organizational identification numberof each Loan Party.  The shares of EquityInterests so indicated on Schedule 6.08 are owned by the Borrower,directly or indirectly, free and clear of all Liens (other than Liens createdunder the Collateral Documents).

 

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6.09         Litigation; Compliance withLaws.

 

(a)           There are not any actions, suits or proceedings atlaw or in equity or by or before any Governmental Authority now pending or, tothe knowledge of the Borrower, threatened against or affecting the Borrower,any Subsidiary or any business, property or rights of any such person(i) that involve any Loan Document or the Transactions or (ii) as towhich there is a reasonable possibility of an adverse determination and that,if adversely determined, could reasonably be expected, individually or in theaggregate, to result in a Material Adverse Effect.

 

(b)           None of the Borrower or anyof the Subsidiaries or any of their respective material properties or materialassets is in violation of, nor will the continued operation of their materialproperties and material assets as currently conducted violate, any law, rule orregulation (including any zoning, building, Environmental Law, ordinance, codeor approval or any building permits), or is in default with respect to anyjudgment, writ, injunction, decree or order of any Governmental Authority,where such violation or default could reasonably be expected to result in aMaterial Adverse Effect.

 

6.10         Agreements.

 

(a)           None of the Borrower or any of the Subsidiaries is aparty to any agreement or instrument or subject to any corporate restrictionthat has resulted or could reasonably be expected to result in a MaterialAdverse Effect.

 

(b)           None of the Borrower or anyof the Subsidiaries is in default in any manner under any provision of anyindenture or other agreement or instrument evidencing Indebtedness, or anyother agreement or instrument to which it is a party or by which it or any ofits properties or assets are or may be bound, where such default couldreasonably be expected to result in a Material Adverse Effect.

 

6.11         Federal Reserve Regulations.

 

(a)           None of the Borrower or any of the Subsidiaries isengaged principally, or as one of its important activities, in the business ofextending credit for the purpose of buying or carrying Margin Stock.

 

(b)           No part of the proceeds ofany Loan or any Letter of Credit will be used, whether directly or indirectly,and whether immediately, incidentally or ultimately, for any purpose thatentails a violation of, or that is inconsistent with, the provisions of theRegulations of the FRB, including Regulation T, U or X.

 

6.12         Investment Company Act.

 

Noneof the Borrower or any Subsidiary is an “investment company” as defined in, orsubject to regulation under, the Investment Company Act of 1940.

 

6.13         Use of Proceeds.

 

TheBorrower will use the proceeds of the Loans and will request the issuance ofLetters of Credit only for the purposes specified in Section 7.08.

 

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6.14         Tax Returns.

 

Eachof the Borrower and each of the Subsidiaries has filed or caused to be filedall Federal and all material state, local and foreign tax returns or materialsrequired to have been filed by it and has paid or caused to be paid allmaterial taxes due and payable by it and all assessments received by it, excepttaxes that are being contested in good faith by appropriate proceedings and forwhich the Borrower or such Subsidiary, as applicable, shall have set aside onits books adequate reserves and except for taxes the nonpayment of which couldnot reasonably be expected to have a Material Adverse Effect.

 

6.15         No Material Misstatements.

 

Noneof (a) the Confidential Information Memorandum or (b) any otherinformation, report, financial statement, exhibit or schedule furnished by oron behalf of the Borrower to the Administrative Agent or any Lender inconnection with the negotiation of any Loan Document or included therein ordelivered pursuant thereto contained, which, in the case of clauses (a) and(b), when taken as a whole and together with the representations and warrantiescontained in this Agreement, contains or will contain any material misstatementof fact or omitted, omits or will omit to state any material fact necessary tomake the statements therein, in the light of the circumstances under which theywere, are or will be made, not misleading; provided, that to the extentany such information, report, financial statement, exhibit or schedule wasbased upon or constitutes a forecast or projection, the Borrower representsonly that it acted in good faith and utilized reasonable assumptions and duecare in the preparation of such information, report, financial statement,exhibit or schedule and it is understood that actual results may differ fromforecasts and projections.

 

6.16         Employee Benefit Plans.

 

Withrespect to any Plan, each of the Borrower and each of its ERISA Affiliates isin compliance in all material respects with the applicable provisions of ERISAand the Internal Revenue Code and the regulations and published interpretationsthereunder.  No ERISA Event has occurredor is reasonably expected to occur that, when taken together with all othersuch ERISA Events, could reasonably be expected to result in a Material AdverseEffect.  Neither the Borrower nor anySubsidiary has (a) failed to comply with any requirement of applicable lawrelating to any employee pension benefit plan primarily for the benefit ofemployees of the Borrower or any Subsidiary residing outside the United Statesthat is not subject to ERISA or the Internal Revenue Code or (b) incurred any other liability with respect tosuch plan (other than liabilities incurred in the ordinary course of business), except for any such noncompliance or incurrence which could not reasonably beexpected to result in a Material Adverse Effect.

 

6.17         Environmental Matters.

 

Exceptas set forth in environmental reports provided to the Administrative Agent andidentified on Schedule 6.17 or with respect to any other matters that,individually or in the aggregate, could not reasonably be expected to result ina Material Adverse Effect, none of the Borrower or any of the Subsidiaries(i) has failed to comply with any Environmental Law or to obtain, maintainor comply with any Environmental Permit, (ii) has become subject to anypending or to the knowledge of the Borrower, threatened, EnvironmentalLiability, (iii) has received notice of any claim with respect to anyEnvironmental Liability or (iv) knows of any basis for any EnvironmentalLiability.

 

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6.18         Insurance.

 

Schedule 6.18 sets forth atrue, complete and correct description, including the carriers, policy numbers,expiration dates, types, amounts and deductibles, of all insurance maintainedby the Borrower or by the Borrower for its Subsidiaries as of the date hereof.  As of each such date, such insurance is infull force and effect and all premiums have been duly paid if due.  The Borrower and its Subsidiaries haveinsurance in such amounts and covering such risks and liabilities as are, whenconsidered in its entirety, in the good faith judgment of the Borrower prudentin the ordinary course of business of the Borrower and its Subsidiaries.

 

6.19         Collateral Documents.

 

(a)           The Security Agreement, upon execution and deliverythereof by the parties thereto, will create in favor of the AdministrativeAgent, for the ratable benefit of the holders of the Obligations, a legal,valid and enforceable security interest in the Collateral (as defined in theSecurity Agreement) and the proceeds thereof and (i) when the PledgedCollateral (as defined in the Security Agreement) is delivered to theAdministrative Agent, the Security Agreement shall constitute a fully perfectedfirst priority Lien on, and security interest in, all right, title and interestof the Loan Parties in such Pledged Collateral, in each case prior and superiorin right to any other person, and (ii) when financing statements inappropriate form are filed in the offices specified on Schedule 6.19(a),the Lien created under the Collateral Documents will constitute a fully perfectedLien on, and security interest in, all right, title and interest of the LoanParties in all such Collateral as to which a security interest may be perfectedby such a filing (other than Intellectual Property, as defined in the SecurityAgreement), in each case prior and superior in right to any other person, otherthan with respect to Liens expressly permitted by Section 8.02.

 

(b)           Upon the recordation of thenotices of grant of security interest in the form required by the SecurityAgreement with the United States Patent and Trademark Office and the UnitedStates Copyright Office, together with the financing statements in appropriateform filed in the offices specified on Schedule 6.19(a), the SecurityAgreement shall constitute a fully perfected Lien on, and security interest in,all right, title and interest of the Loan Parties in the Intellectual Property(as defined in the Security Agreement) in which a security interest may beperfected by filing in the United States and its territories and possessions,in each case prior and superior in right to any other person (it beingunderstood that subsequent recordings in the United States Patent and TrademarkOffice and the United States Copyright Office may be necessary to perfect aLien on registered Trademarks, trademark applications, Patents, patentapplications and Copyrights acquired by the Loan Parties after the datehereof).

 

(c)           The Mortgages are effectiveto create in favor of the Administrative Agent, for the ratable benefit of theholders of the Obligations, a legal, valid and enforceable Lien on all of theLoan Parties’ right, title and interest in and to the Mortgaged Propertythereunder and the proceeds thereof, and when the Mortgages are recorded in theoffices specified on Schedule 6.19(c), the Mortgages shallconstitute a fully perfected Lien on, and security interest in, all right,title and interest of the Loan Parties in such Mortgaged Property and theproceeds thereof, in each case prior and superior in right to any other person,other than with respect to the rights of persons pursuant to Liens expresslypermitted by Section 8.02.

 

6.20         Location of Real Propertyand Leased Premises.

 

Schedule 6.20(a) listscompletely and correctly as of the Closing Date all domestic real property ownedby the Borrower and the Subsidiaries and the addresses thereof.  The Borrower and the 

 

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Subsidiaries,as the case may be, as of the Closing Date, own in fee all the real propertyset forth on Schedule 6.20(a). Schedule 6.20(b) lists completely and correctly as ofthe Closing Date all material domestic real property leased by the Borrower andthe Subsidiaries and the addresses thereof. The Borrower and the Subsidiaries, as the case may be, as of the ClosingDate, have valid leasehold interests in all the real property set forth on Schedule 6.20(b).

 

6.21         Labor Matters.

 

Asof the date hereof, there are no strikes, lockouts or slowdowns against theBorrower or any Subsidiary pending or, to the knowledge of the Borrower,threatened.  The consummation of theTransactions will not give rise to any right of termination or right ofrenegotiation on the part of any union under any collective bargainingagreement to which the Borrower or any Subsidiary is bound.  Except to the extent any of the following,individually or in the aggregate, could not reasonably be expected to have aMaterial Adverse Effect, (a) the hours worked by and payments made toemployees of the Borrower and the Subsidiaries have not been in violation inany material respect of the Fair Labor Standards Act or any other applicableFederal, state, local or foreign law dealing with such matters and (b) allpayments due from the Borrower or any Subsidiary, or for which any claim may bemade against the Borrower or any Subsidiary, on account of wages and employeehealth and welfare insurance and other benefits, have been paid or accrued as aliability on the books of the Borrower or such Subsidiary.

 

6.22         Solvency.

 

Immediatelyafter the consummation of the Transactions to occur on the Closing Date andimmediately following the making of each Loan and after giving effect to theapplication of the proceeds of each Loan, (a) the fair value of the assetsof the Loan Parties taken as a whole, at a fair valuation, will exceed theirdebts and liabilities, subordinated, contingent or otherwise; (b) thepresent fair saleable value of the property of the Loan Parties taken as awhole will be greater than the amount that will be required to pay the probableliability of their debts and other liabilities, subordinated, contingent orotherwise, as such debts and other liabilities become absolute and matured; (c) theLoan Parties taken as a whole will be able to pay their debts and liabilities,subordinated, contingent or otherwise, as such debts and liabilities becomeabsolute and matured; and (d) the Loan Parties taken as a whole will nothave unreasonably small capital with which to conduct the business in whichthey are engaged as such business is now conducted and is proposed to beconducted following the Closing Date.

 

6.23         Certain Treasury RegulationMatters.

 

TheBorrower does not intend to treat the Loans and related transactions as being a“reportable” transaction (within the meaning of Treasury Regulation 1.6011-4).  The Borrower acknowledges that theAdministrative Agent and one or more of the Lenders may treat its Loans as partof a transaction that is subject to Treasury Regulation Section 301.6112-1to the extent that the Borrower’s application of the proceeds of the Loansrequires the same and the Administrative Agent and such Lender or Lenders, asapplicable, may, in connection therewith, maintain such lists and other recordsas they may determine is required by such Treasury Regulation.

 

6.24         Foreign Assets ControlRegulations, Etc..

 

None of the requesting orborrowing of the Loans, the requesting or issuance, extension or renewal of anyLetters of Credit or the use of the proceeds of any thereof will violate theTrading With the Enemy Act (50 U.S.C. Sec 1 et seq., as amended) (the “TradingWith the Enemy Act”) or any of the foreign assets control regulations ofthe United States Treasury Department (31 CFR, Subtitle B, Chapter V, asamended) (the “Foreign Assets Control Regulations”) or any enabling legislationor executive order 

 

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relating thereto (which forthe avoidance of doubt shall include, but shall not be limited to (a) ExecutiveOrder 13224 of September 21, 2001 Blocking Property and ProhibitingTransactions With Persons Who Commit, Threaten to Commit, or Support Terrorism(66 Fed. Reg. 49079 (2001)) (the “Executive Order”) and (b) theUniting and Strengthening America by Providing Appropriate Tools Required toIntercept and Obstruct Terrorism Act of 2001 (Public Law 107-56)).  To the knowledge of the Borrower,neither the Borrower nor any of its Subsidiaries (a) is a “blocked person”as described in the Executive Order, the Trading With the Enemy Act or theForeign Assets Control Regulations or (b) engages transactions with anysuch “blocked person” blocked by such order, law or regulation.

 

ARTICLE VII

 

AFFIRMATIVE COVENANTS

 

TheLoan Parties covenant and agree with each Lender that so long as this Agreementshall remain in effect and until the Commitments have been terminated and theprincipal of and interest on each Loan, all Fees and all other expenses oramounts payable under any Loan Document shall have been paid in full and allLetters of Credit have been canceled or have expired and all amounts drawnthereunder have been reimbursed in full, unless the Required Lenders shallotherwise consent in writing, the Loan Parties will, and will cause each of theSubsidiaries to:

 

7.01         Existence; Business andProperties.

 

(a)           Do or cause to be done all things necessary topreserve, renew and keep in full force and effect its legal existence, exceptas otherwise expressly permitted under Section 8.05.

 

(b)           Do or cause to be done allthings necessary to obtain, preserve, renew, extend and keep in full force andeffect all rights, licenses, permits, franchises, authorizations, Patents,Copyrights, Trademarks and trade names used in or relating to the conduct ofits business, except where the failure to do so could not reasonably beexpected to have a Material Adverse Effect; maintain and operate such businessin substantially the manner in which it is presently conducted and operated,including any reasonable extension, development or expansion thereof; complywith all applicable laws, rules, regulations and decrees and orders of anyGovernmental Authority, whether now in effect or hereafter enacted, exceptwhere the failure to do so could not reasonably be expected to have a MaterialAdverse Effect; and at all times maintain and preserve all property material tothe conduct of such business and keep such property in good repair, workingorder and condition and from time to time make, or cause to be made, allneedful and proper repairs, renewals, additions, improvements and replacementsthereto necessary in order that the business carried on in connection therewithmay be properly conducted at all times, except where the failure to do so couldnot reasonably be expected to have a Material Adverse Effect.

 

7.02         Insurance.

 

(a)           Keep its insurable properties adequately insured atall times by financially sound and reputable insurers; maintain such otherinsurance, to such extent and against such risks, including fire and otherrisks insured against by extended coverage, as is customary with companies inthe same or similar businesses operating in the same or similar locations,including public liability insurance against claims for personal injury ordeath or property damage occurring upon, in, about or in connection with theuse of any properties owned, occupied or controlled by it; and maintain suchother insurance as may be required by law.

 

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(b)           Cause all such policies covering any Collateral tobe endorsed or otherwise amended to include a customary lender’s loss payableendorsement, in form and substance satisfactory to the Administrative Agent,which endorsement shall provide that, from and after the Closing Date, if theinsurance carrier shall have received written notice from the AdministrativeAgent of the occurrence of an Event of Default, the insurance carrier shall payall proceeds otherwise payable to the Borrower or the Loan Parties under suchpolicies directly to the Administrative Agent; cause all such policies toprovide that neither the Borrower, the Administrative Agent nor any other partyshall be a coinsurer thereunder and to contain a “Replacement Cost Endorsement”,without any deduction for depreciation, and such other provisions as theAdministrative Agent may reasonably require from time to time to protect theirinterests; deliver insurance certificates evidencing all such policies to theAdministrative Agent; upon the occurrence of an Event of Default, deliveroriginal or certified copies of all such policies to the Administrative Agentupon its request; cause each such policy to provide that it shall not becanceled, modified or not renewed (i) by reason of nonpayment of premiumupon not less than 10 days’ prior written notice thereof by the insurer to theAdministrative Agent (giving the Administrative Agent the right to curedefaults in the payment of premiums) or (ii) for any other reason upon notless than 30 days’ prior written notice thereof by the insurer to theAdministrative Agent, deliver to the Administrative Agent, prior to the cancellation,modification or nonrenewal of any such policy of insurance, evidence of arenewal or replacement policy (or other evidence of renewal of a policypreviously delivered to the Administrative Agent) together with evidencesatisfactory to the Administrative Agent of payment of the premium therefor.

 

(c)           If at any time the area in which any of the Premises(as defined in the Mortgages) are located is designated (i) a “floodhazard area” in any Flood Insurance Rate Map published by the Federal EmergencyManagement Agency (or any successor agency), obtain flood insurance in anamount not less than $5,000,000, on a per occurrence basis, for the Premiseslocated in a “flood hazard area” and that is otherwise, if applicable, theminimum coverage necessary to comply with the National Flood Insurance Programas set forth in the Flood Disaster Protection Act of 1973, as it may be amendedfrom time to time, or (ii) a “Zone 1” area, obtain earthquake insurance insuch total amount as is prudent in the good faith judgment of the Borrower forPremises located in a “Zone 1” area.

 

(d)           With respect to any Mortgaged Property, carry andmaintain comprehensive general liability insurance including a “broad form”commercial general liability endorsement and coverage on an occurrence basisagainst claims made for personal injury (including bodily injury, death andproperty damage) and umbrella liability insurance against any and all claims,in no event for a combined single limit of less than $15,000,000, naming theAdministrative Agent as an additional insured, on forms satisfactory to theAdministrative Agent.

 

(e)           Notify the Administrative Agent immediately wheneverany separate insurance concurrent in form or contributing in the event of losswith that required to be maintained under this Section 7.02 istaken out by the Borrower; and promptly deliver to the Administrative Agent aduplicate original copy of such policy or policies.

 

(f)            In the event there occurs any loss, damage to ordestruction of any tangible property or assets of any Loan Party or any partthereof, in excess of $2,000,000, cause such Loan Party to promptly givewritten notice thereof to the Administrative Agent generally describing thenature and extent of such loss, damage or destruction.  Subsequent to any loss, damage to ordestruction of the tangible property or assets of any Loan Party or any partthereof, Borrower shall, or shall cause such other Loan Party to, 

 

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whetheror not the insurance proceeds, if any, received on account of such damage ordestruction shall be sufficient for that purpose, at such Loan Party’s cost andexpense, promptly repair or replace such property or assets so lost, damaged ordestroyed or purchase other productive assets used or useful in the business ofthe Borrower or its Subsidiaries; provided, however, that suchLoan Party need not repair or replace such property or assets so lost, damagedor destroyed to the extent the failure to make such repair or replacement is notnecessary in the good faith judgment of the Borrower for the proper conduct ofthe business of such Loan Party in the ordinary course.

 

(g)           Authorize the AdministrativeAgent, as the attorney-in-fact of each of the Loan Parties and for the benefitof the Lenders, upon the occurrence and during the continuance of an Event ofDefault, without the consent of the applicable Loan Party, (i) to adjustand compromise proceeds payable under such insurance policies, (ii) tocollect, receive and give receipts for such insurance proceeds in the name ofsuch Loan Party, the Administrative Agent and the Lenders and (iii) toendorse such Loan Party’s name upon any instrument in payment thereof

 

(h)           In the event a Loan Partyshall receive any insurance proceeds as a result of any loss, damage ordestruction, or condemnation proceeds, in each case in a net amount in excessof $2,000,000, the Borrower shall, or shall cause such other Loan Party to,promptly pay over such proceeds to the Administrative Agent as cash collateralfor the Obligations.  The AdministrativeAgent agrees to release such proceeds to such Loan Party for replacement orrestoration of the portion of the property or assets of such Loan Party lost,damaged or destroyed or condemned for the purchase of other assets used oruseful in the business of the Borrower or its Subsidiaries if (A) withinone year (or if binding contracts for the repair, replacement or purchase havebeen entered into within such period, within the term of such contracts) fromthe date of such loss, damage, destruction or condemnation, the AdministrativeAgent has received written application for such release from such Loan Partytogether with evidence reasonably satisfactory to it that the Borrower will usesuch proceeds to purchase productive assets used or useful in the business ofthe Borrower or its Subsidiaries and (B) on the date of such release noDefault or Event of Default exists.  Allinsurance and condemnation proceeds received by a Loan Party shall be subjectto the security interest of the Administrative Agent under the Loan Documents.

 

7.03         Taxes.

 

Payall taxes, assessments and governmental charges or levies imposed upon it orupon its income or profits or in respect of its property, before the same shallbecome delinquent or in default; provided, however, that suchpayment and discharge shall not be required with respect to any such tax,assessment, charge or levy so long as (a) the validity or amount thereofshall be contested in good faith by appropriate proceedings and the Borrowershall have set aside on its books adequate reserves with respect thereto inaccordance with GAAP and such contest operates to suspend collection of thecontested obligation, tax, assessment or charge and enforcement of a Lien and,in the case of a Mortgaged Property, there is no risk of forfeiture of suchproperty or (b) the nonpayment thereof could not reasonably be expected toresult in a Material Adverse Effect.

 

7.04         Financial Statements,Reports, Etc.

 

Inthe case of the Borrower, furnish to the Administrative Agent (eitherphysically or through electronic delivery reasonably acceptable to theAdministrative Agent), which shall furnish to each Lender:

 

(a)               within 90 days after the end of each fiscalyear, its consolidated balance sheet and related statements of income,stockholders’ equity and cash flows showing the financial condition of theBorrower and its consolidated Subsidiaries as of the close of such fiscal yearand the results of its 

 

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operationsand the operations of such Subsidiaries during such year, together withcomparative figures for the immediately preceding fiscal year, all audited byErnst & Young LLP or other independent public accountants ofrecognized national standing and accompanied by an opinion of such accountants(which shall not be qualified in any material respect) to the effect that suchconsolidated financial statements fairly present the financial condition andresults of operations of the Borrower and its consolidated Subsidiaries on aconsolidated basis in accordance with GAAP consistently applied;

 

(b)              within 45 days after the endof each of the first three fiscal quarters of each fiscal year, itsconsolidated balance sheet and related statements of income, stockholders’equity and cash flows showing the financial condition of the Borrower and itsconsolidated Subsidiaries as of the close of such fiscal quarter and theresults of its operations and the operations of such Subsidiaries during suchfiscal quarter and the then elapsed portion of the fiscal year, and comparativefigures for the same periods in the immediately preceding fiscal year, allcertified by one of its Responsible Officers as fairly presenting the financialcondition and results of operations of the Borrower and its consolidatedSubsidiaries on a consolidated basis in accordance with GAAP consistentlyapplied, subject to normal year-end audit adjustments;

 

(c)               concurrently with anydelivery of financial statements under paragraph (a) or (b) above, acertificate of the accounting firm (in the case of paragraph (a)) orResponsible Officer (in the case of paragraph (b)) opining on or certifyingsuch statements (which certificate, when furnished by an accounting firm, maybe limited to accounting matters and disclaim responsibility for legalinterpretations and which may be provided by a Responsible Officer ifaccounting firms generally are not providing such certificates) (a “ComplianceCertificate”) (i) certifying that no Event of Default or Default hasoccurred or, if such an Event of Default or Default has occurred, specifyingthe nature and extent thereof and any corrective action taken or proposed to betaken with respect thereto and (ii) setting forth computations inreasonable detail satisfactory to the Administrative Agent showing theConsolidated Leverage Ratio and demonstrating compliance with the covenantscontained in Sections 8.06, 8.10, 8.11 and 8.12and, in the case of a certificate delivered with the financial statementsrequired by paragraph (a) above, certifying that there has been no changein the business activities, assets or liabilities of the Borrower, or if therehas been any such change, describing such change in reasonable detail andcertifying that the Borrower is in compliance with Section 8.08;

 

(d)              within 45 days after thecommencement of each fiscal year of the Borrower, a detailed consolidatedbudget for such fiscal year (including a projected consolidated balance sheetand related statements of projected operations and cash flows as of the end ofand for such fiscal year);

 

(e)               promptly after the samebecome publicly available, copies of all periodic and other reports, proxystatements and other materials filed by the Borrower or any Subsidiary with theSEC, or any Governmental Authority succeeding to any or all of the functions ofthe SEC, or with any national securities exchange, or distributed to itsshareholders, as the case may be;

 

(f)               promptly after the receiptthereof by the Borrower or any Subsidiary, a copy of any “management letter”received by any such person from its certified public accountants and themanagement’s response thereto; and

 

(g)              promptly, from time to time,such other information regarding the operations, business affairs and financialcondition of the Borrower or any Subsidiary, or compliance with the terms ofany Loan Document, as the Administrative Agent or any Lender may reasonablyrequest.

 

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Documentsrequired to be delivered pursuant to Section 7.04 (to the extentany such documents are included in materials otherwise filed with the SEC) maybe delivered electronically and if so delivered, shall be deemed to have beendelivered on the date (i) on which the Borrower posts such documents, orprovides a link thereto on the Borrower’s website on the Internet at thewebsite address listed on Schedule 11.02; or (ii) on which suchdocuments are posted on the Borrower’s behalf on an Internet or intranetwebsite, if any, to which each Lender and the Administrative Agent have access(whether a commercial, third-party website or whether sponsored by theAdministrative Agent); provided that: (i) the Borrower shalldeliver paper copies of such documents to the Administrative Agent or anyLender that requests the Borrower to deliver such paper copies until a writtenrequest to cease delivering paper copies is given by the Administrative Agentor such Lender and (ii) the Borrower shall notify the Administrative Agentand each Lender (by telecopier or electronic mail) of the posting of any suchdocuments and provide to the Administrative Agent by electronic mail electronicversions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, inevery instance the Borrower shall be required to provide paper copies of theCompliance Certificates required by Section 7.04(c) to theAdministrative Agent.  Except for suchCompliance Certificates, the Administrative Agent shall have no obligation torequest the delivery or to maintain copies of the documents referred to above,and in any event shall have no responsibility to monitor compliance by theBorrower with any such request for delivery, and each Lender shall be solelyresponsible for requesting delivery to it or maintaining its copies of suchdocuments.

 

The Borrower hereby acknowledges that (a) the Administrative Agentand/or BAS will make available to the Lenders and the L/C Issuer materialsand/or information provided by or on behalf of the Borrower hereunder(collectively, the “Borrower Materials”) by posting the Borrower Materials onIntraLinks or another similar electronic system (the “Platform”) and (b) certainof the Lenders (each, a  “PublicLender”) may have personnel who do not wish to receive material non-publicinformation with respect to the Borrower or its Affiliates, or the respectivesecurities of any of the foregoing, and who may be engaged in investment andother market-related activities with respect to such Person’s securities.  The Borrower hereby agrees that (w) allBorrower Materials that are to be made available to Public Lenders shall beclearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean thatthe word “PUBLIC” shall appear prominently on the first page thereof; (x) bymarking Borrower Materials “PUBLIC,” the Borrower shall be deemed to haveauthorized the Administrative Agent, BAS and the Lenders to treat such BorrowerMaterials as not containing any material non-public information with respect tothe Borrower or its securities for purposes of United States federal and statesecurities laws (provided, however, that to the extent suchBorrower Materials constitute Information, they shall be treated as set forthin Section 11.07); (y) all Borrower Materials marked “PUBLIC”are permitted to be made available through a portion of the Platform designatedas “Public Investor;” and (z) the Administrative Agent and BAS shall beentitled to treat any Borrower Materials that are not marked “PUBLIC” as beingsuitable only for posting on a portion of the Platform not marked as “PublicInvestor.”

 

7.05                           Litigation andOther Notices.

 

Furnishto the Administrative Agent, the L/C Issuer and each Lender prompt (and, in anyevent, within 3 Business Days) written notice of the following:

 

(a)                                  any Event of Default orDefault, specifying the nature and extent thereof and the corrective action (ifany) taken or proposed to be taken with respect thereto;

 

(b)                                 the filing orcommencement of, or any threat or notice of intention of any person to file orcommence, any action, suit or proceeding, whether at law or in equity or by orbefore any Governmental 

 

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Authority,against the Borrower or any Affiliate thereof that could reasonably be expectedto result in a Material Adverse Effect;

 

(c)                                  the occurrenceof any ERISA Event that, alone or together with any other ERISA Events thathave occurred, could reasonably be expected to result in liability of theBorrower and its ERISA Affiliates in an aggregate amount exceeding $2,500,000or result in a Material Adverse Effect; and

 

(d)                                 any developmentthat has resulted in, or could reasonably be expected to result in, a MaterialAdverse Effect.

 

7.06                           InformationRegarding Collateral.

 

(a)                                  Furnish to theAdministrative Agent prompt written notice of any change in (i) any LoanParty’s legal name, (ii) the jurisdiction of organization or formation ofany Loan Party, (iii) any Loan Party’s identity or corporate structure or (iv) anyLoan Party’s federal taxpayer identification number.  The Borrower agrees not to effect or permitany change referred to in the preceding sentence unless all filings have beenmade under the Uniform Commercial Code or otherwise that are required in orderfor the Administrative Agent to continue at all times following such change tohave a valid, legal and perfected security interest in all the Collateral.

 

(b)                                 In the case ofthe Borrower, each year, at the time of delivery of the annual financialstatements with respect to the preceding fiscal year pursuant to Section 7.04(a),deliver to the Administrative Agent a certificate of a Responsible Officersetting forth the information set forth in Section 7.06(a) orconfirming that there has been no change in such information since the ClosingDate or the date of the most recent certificate delivered pursuant to this Section 7.06.

 

7.07                           MaintainingRecords; Access to Property and Inspections.

 

Keepproper books of record and account in which full, true and correct entries inconformity with GAAP and all requirements of Law are made of all dealings andtransactions in relation to its business and activities.  Each Loan Party will, and will cause each ofits subsidiaries to, permit any representatives designated by the AdministrativeAgent or any Lender to visit and inspect the financial records and theproperties of the Borrower or any Subsidiary at reasonable times and as oftenas reasonably requested and to make extracts from and copies of such financialrecords, and permit any representatives designated by the Administrative Agentor any Lender to discuss the affairs, finances and condition of the Borrower orany Subsidiary with the officers thereof and independent accountantstherefor.  Except following theoccurrence and during the continuance of any Default, the Borrower shall beentitled to have a representative present at all such discussions and to obtaina copy of all written requests for information relating to any Loan Party madeby the Administrative Agent or any Lender to any third party.  Within 120 days after the close of eachfiscal year of the Borrower, at the request of the Administrative Agent or theRequired Lenders, the Borrower will hold a meeting (at a mutually agreeablelocation and time or, at the option of the Administrative Agent, by conferencecall) with all lenders who choose to attend such meeting at which meeting shallbe reviewed the financial results of the previous fiscal year and the financialcondition of the Borrower and its Subsidiaries for the current fiscal year ofthe Borrower.

 

7.08                           Use of Proceeds.

 

Usethe proceeds of the Credit Extensions (a) to refinance certain existingIndebtedness, (b) for permitted share repurchases and PermittedAcquisitions and (c) for working capital, capital expenditures 

 

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andother lawful corporate purposes, provided that in no event shall theproceeds of the Credit Extensions be used in contravention of any Law or of anyLoan Document.

 

7.09                           Further Assurances.

 

(a)                                  Execute any and all furtherdocuments, financing statements, agreements and instruments, and take allfurther action (including (i) filing or recording, as applicable, UniformCommercial Code and other financing statements and Mortgages and (ii) ifall or substantially all of the Equity Interests of the Borrower are held oracquired by a holding company whose sole or primary purpose is holding suchEquity Interests, causing such holding company to guarantee the Obligations, topledge its Equity Interests in the Borrower pursuant to the Security Agreementand to become subject to the representations, warranties, covenants and otheragreements of the Loan Parties hereunder, *mutatismutandis*) that may be required under applicable law, or that the RequiredLenders or the Administrative Agent may reasonably request, in order toeffectuate the transactions contemplated by the Loan Documents and in order togrant, preserve, protect and perfect the validity and first priority (subjectto Liens permitted under Section 8.02) of the security interestscreated or intended to be created by the Collateral Documents.  Unless a Release of Collateral Event hasoccurred and is continuing and the Borrower has exercised its rights under Section 10.10,the Borrower will cause any subsequently acquired or organized DomesticSubsidiary to become a Loan Party by executing a Joinder Agreement.  Notwithstanding anything to the contrary inthe foregoing sentence, despite the occurrence and continuance of a Release ofCollateral Event, the Borrower will cause (v) the Equity Interests of anysubsequently acquired or organized Domestic Subsidiary, (w) 65% (or suchgreater percentage that, due to a change in an applicable Law after the datehereof, could not reasonably be expected to cause the undistributed earnings ofsuch First Tier Foreign Subsidiary as determined for United States federalincome tax purposes to be treated as a deemed dividend to such First TierForeign Subsidiary’s United States parent and 100% of the issued andoutstanding Equity Interests not entitled to vote (within the meaning of Treas.Reg. Section 1.956-2(c)(2)) in each First Tier Foreign Subsidiary and (y) ifthe Equity Interests of the Borrower are held or acquired by any holdingcompany whose sole or primary purpose is holding such Equity Interests, theEquity Interests of the Borrower, in each case, to be pledged to theAdministrative Agent pursuant to the Security Agreement.  In addition, subject to the last sentence ofthis Section 7.09(a), from time to time, the Borrower will, at itscost and expense, promptly secure the Obligations by pledging or creating, orcausing to be pledged or created, perfected security interests with respect tosuch of its assets and properties as the Administrative Agent or the RequiredLenders shall designate (it being understood that it is the intent of theparties that the Obligations shall be secured by substantially all the assetsof the Borrower and its Subsidiaries including real and other propertiesacquired subsequent to the Closing Date (but excluding owned real property witha value of less than $1,000,000, all leasehold real property (including,without limitation, the leased manufacturing facility located in Muskegon,Michigan), and other Excluded Property)). Such security interests and Liens will be created under the CollateralDocuments and other security agreements, mortgages, deeds of trust and otherinstruments and documents in form and substance satisfactory to theAdministrative Agent, and the Borrower shall deliver or cause to be deliveredto the Lenders all such instruments and documents (including legal opinions,title insurance policies and lien searches) as the Administrative Agent shallreasonably request to evidence compliance with this Section 7.09.  The Borrower agrees to provide such evidenceas the Administrative Agent shall reasonably request as to the perfection andpriority status of each such security interest and Lien.  In furtherance of the foregoing, the Borrowerwill give prompt notice to the Administrative Agent of the acquisition by it orany of the Domestic Subsidiaries of any real property (or any interest in realproperty) having a value in excess of $1,000,000.  The actions required under this Section 7.09shall be taken within 60 days (or such later time as may be acceptable to theAdministrative Agent) after the event giving rise to the requirement to takesuch action.  Notwithstanding theforegoing, (x) the Administrative Agent in its discretion may determinenot to take a security interest in those assets as to which the AdministrativeAgent shall determine, in its reasonable discretion, that the 

 

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costof obtaining such Lien (including any mortgage, stamp, intangibles or other tax)are excessive in relation to the benefit to the Lenders of the securityafforded thereby and (y) Liens required to be granted pursuant to this Section 7.09shall be subject to exceptions and limitations consistent with those set forthin the Security Documents as in effect on the Closing Date (to the extentappropriate in the applicable jurisdiction) and no action need be taken toperfect any security interest in vehicles or any deposit account or securitiesaccount (each as defined in the Uniform Commercial Code) other than the filingof a financing statement under the Uniform Commercial Code; and

 

(b)                                 Should the Borrower fail tomaintain the Requisite Ratings, within thirty (30) days of notice thereof fromeither the Required Lenders or the Administrative Agent, the Borrower shallcause the security interests in all real and personal property of the LoanParties to be re-granted in accordance with the requirements and conditions of Section 7.09(a) (itbeing understood and agreed that such re-granted security interests will have alien priority at least equal to the lien priority existing as of the time ofthe Release of Collateral Event).

 

7.10                           CertainTreasury Regulation Matters.

 

Inthe event the Borrower determines to take any action inconsistent with itsintention as set forth in the first sentence of Section 6.23, it willpromptly notify the Administrative Agent thereof.

 

7.11                           EnvironmentalLaws.

 

Except,in each case, as would not, individually or in the aggregate, have a MaterialAdverse Effect:

 

(a)                                  Comply in allmaterial respects with, and use reasonable efforts to ensure compliance in allmaterial respects by all contractors, tenants and subtenants, if any, with, allapplicable Environmental Laws, and obtain and comply in all material respectswith and maintain, and use reasonable efforts to ensure that all contractors,tenants and subtenants obtain and comply in all material respects with andmaintain, any and all Environmental Permits required of them by any applicableEnvironmental Laws.  For purposes of thisSection 7.11(a), noncompliance with the foregoing shall be deemednot to constitute a breach of this covenant, provided, that uponlearning of any actual or suspected noncompliance, Borrower shall promptlyundertake reasonable efforts to achieve compliance.

 

(b)                                 Conduct and complete in allmaterial respects all investigations, studies, sampling and testing, and allremedial, removal and other actions required to be undertaken by any GroupMember under Environmental Laws and promptly comply with all orders anddirectives applicable to any Group Member of all Governmental Authoritiesregarding Environmental Laws; provided, however, that thiscovenant shall be deemed not violated if the relevant Group Member promptlychallenges in good faith any such order or directive in a manner consistentwith all applicable Environmental Laws and other requirements of Law andpursues such challenge or challenges diligently.

 

(c)                                  Generate, use, treat, store,release, dispose of, and otherwise manage Hazardous Materials in a manner thatwould not reasonably be expected to result in a material EnvironmentalLiability to any Group Member or to materially affect any real property ownedor leased by any of them; and take reasonable efforts to prevent any otherperson from generating, using, treating, storing, releasing, disposing of, orotherwise managing Hazardous Materials in a manner that could reasonably beexpected to result in a material Environmental Liability to, or materiallyaffect any real property owned or operated by, any Group Member.  For purposes of this Section 7.11(c),noncompliance with the foregoing shall be deemed not to constitute a breach ofthis covenant, provided, that, upon learning of any actual or 

 

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suspectednoncompliance, the Borrower shall promptly undertake reasonable efforts toremove such Hazardous Materials, if required by applicable Environmental Law,or otherwise remediate them, if required by applicable Environmental Law, in amanner consistent with applicable Environmental Law.

 

(d)                                 If required by applicablelaw, promptly take all commercially reasonable actions necessary to address anymaterial Environmental Liability.

 

(e)                                  Deliver written notice tothe Administrative Agent as soon as practicable following receipt of allenvironmental audits, investigations, analyses and reports of any kind orcharacter, and all written communications, with respect to any EnvironmentalLiability that, individually or in the aggregate, could reasonably be expectedto result in a Material Adverse Effect, and, upon the request of theAdministrative Agent, promptly deliver copies to the Administrative Agent ofsuch environmental audits, investigations, analyses, reports and writtencommunications.

 

7.12                           Post-ClosingObligations.

 

(a)                                  Deliver the as-built surveyof the site of the Pennsylvania Property within 30****daysof the Closing Date, together with the title company’s issuance of anendorsement omitting the survey exception to the Administrative Agent’s titleinsurance policy with respect to the Pennsylvania Property; and

 

(b)                                 deliver or cause to bedelivered within 60 days of the Closing Date (or such later date as determinedby the Administrative Agent), (i) the certificates representing thepledged Equity Interests of Knoll Europe, and (ii) in form and substancesatisfactory to the Administrative Agent, (A) such additional securitydocuments as may be necessary, in the reasonable opinion of the AdministrativeAgent, to cause the applicable Equity Interests (as provided in Section 7.09)of Knoll Europe to be subject to first priority, perfected Liens in favor ofthe Administrative Agent under applicable Law, and (B) such otherdocumentation as the Administrative Agent may reasonably request in connectionwith the Administrative Agent’s Lien on the Equity Interests of Knoll Europe,including without limitation a favorable opinion of counsel.

 

ARTICLE VIII

 

NEGATIVE COVENANTS

 

TheLoan Parties covenant and agree with each Lender that, so long as this Agreementshall remain in effect and until the Commitments have been terminated and theprincipal of and interest on each Loan, all Fees and all other expenses oramounts payable under any Loan Document have been paid in full and all Lettersof Credit have been cancelled or have expired and all amounts drawn thereunderhave been reimbursed in full, unless the Required Lenders shall otherwiseconsent in writing, the Loan Parties will not, nor will they cause or permitany of the Subsidiaries to:

 

8.01                           Indebtedness.

 

Incur,create, assume or permit to exist any Indebtedness, except:

 

(a)                                  Indebtednessexisting on the Closing Date and set forth in Schedule 8.01, includingin the case of lines of credit the maximum amount of Indebtedness permitted tobe incurred thereunder;

 

(b)                                 Indebtednesscreated hereunder and under the other Loan Documents;

 

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(c)                                  Indebtednessunder completion guarantees, appeal bonds, performance or surety bonds or withrespect to workers’ compensation claims, in each case incurred in the ordinarycourse of business;

 

(d)                                 Indebtednessunder or in respect of Swap Contracts that are not speculative in nature;

 

(e)                                  Indebtednessarising from the honoring by a bank or other financial institution of a check,draft or similar instrument inadvertently drawn against insufficient funds inthe ordinary course of business, so long as such Indebtedness is extinguishedwithin three Business Days of the incurrence thereof;

 

(f)                                    Cash Management Obligations and other Indebtedness in respect ofnetting services, overdraft protections and similar arrangements in each casein connection with deposit accounts;

 

(g)                                 Indebtednessconsisting of (i) the financing of insurance premiums or (ii) take-or-payobligations contained in supply arrangements, in each case, in the ordinarycourse of business;

 

(h)                                 Indebtednessincurred by the Borrower or any Subsidiary constituting reimbursementobligations with respect to letters of credit issued in the ordinary course ofbusiness, including without limitation letters of credit in respect of workerscompensation claims, health, disability or other employee benefits or property,casualty or liability insurance or self-insurance or other Indebtedness withrespect to reimbursement-type obligations regarding workers compensationclaims; provided, that (i) upon the drawing of such letters ofcredit or the incurrence of such Indebtedness, such obligations are reimbursedwithin 30 days following such drawing or incurrence and (ii) such lettersof credit are not provided to secure the repayment of other Indebtedness of theBorrower or any Subsidiary.

 

(i)                                     with respect tothe Borrower or any Subsidiary, (A) purchase money Indebtedness (includingCapital Lease Obligations) and Synthetic Lease Obligations, (B) indebtednessincurred in connection with a Permitted Acquisition, (C) Loans obtainedthrough an increase in the Commitments under Section 2.01(c) and(D) other newly issued Indebtedness, provided that (y) theaggregate principal amount of Indebtedness incurred pursuant to this Section 8.01(i) shallnot exceed $250,000,000 at any time outstanding and (z) with respect toany Indebtedness incurred pursuant to this Section 8.01(i) inexcess of $30,000,000 the maturity date of such Indebtedness is on (solely withrespect to such Indebtedness incurred in accordance with Section 2.01(f))or after the Maturity Date;

 

(j)                                     unsecured****subordinated Indebtedness (which may be guaranteed by anyLoan Party on a subordinated basis); provided,**that (i) aftergiving effect to the incurrence of any such Indebtedness on a Pro Forma Basis,the Borrower is in Pro Forma Compliance, (ii) no Default or Event ofDefault shall have occurred and be continuing or would result therefrom, (iii) suchIndebtedness matures after the six-month anniversary of the Maturity Date and (iv) issubordinated to the Obligations on terms and conditions satisfactory to theAdministrative Agent in form and substance;

 

(k)                                  other unsecuredIndebtedness not contemplated in the foregoing clauses of this Section; providedthat (i) after giving effect to the incurrence of any such Indebtedness ona Pro Forma Basis, the Borrower is in Pro Forma Compliance and (ii) noDefault or Event of Default shall have occurred and be continuing or wouldresult therefrom; and

 

(l)                                     Indebtednessincurred to extend, renew or refinance any Indebtedness described in Section 8.0.1(a),(i) or (j) (“RefinancingIndebtedness”); provided,that (i) such Refinancing Indebtedness is in an aggregate principal amountnot greater than the aggregate principal amount of the Indebtedness beingextended, renewed or refinanced, plus the amount of any interest, premiums orpenalties required to 

 

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bepaid thereon plus fees and expenses associated therewith, (ii) suchRefinancing Indebtedness has a later or equal final maturity and a longer orequal weighted average life to maturity than the Indebtedness being extended,renewed or refinanced, (iii) if the Indebtedness being extended, renewedor refinanced is subordinated to the Obligations, the Refinancing Indebtednessis subordinated to the Obligations on terms no less favorable to the Lendersthan the Indebtedness being extended, renewed or refinanced, (iv) only theobligors in respect of the Indebtedness being extended, renewed or refinancedmay become obligated with respect to such Refinancing Indebtedness, (v) thesecurity interest(s) granted in connection with such RefinancingIndebtedness, if any, shall not cover more collateral, in any material respect,than the security interest(s), if any, granted in connection with theIndebtedness being refinanced and (vi) the non-economic covenants, eventsof default, remedies and other provisions of the Refinancing Indebtedness, whentaken as a whole, shall be materially no less favorable to the Lenders thanthose contained in the Indebtedness being extended, renewed or refinanced.

 

8.02                           Liens.

 

Create,incur, assume or permit to exist any Lien on any property or assets (includingEquity Interests or other securities of any person, including any Subsidiary)now owned or hereafter acquired by it or on any income or revenues or rights inrespect of any thereof, except:

 

(a)                                  Liens on property or assetsof the Borrower and its Subsidiaries existing on the Closing Date and set forthin Schedule 8.02; provided, that such Liens shall secure onlythose obligations which they secure on the Closing Date and any extensions,renewals and replacements thereof permitted hereunder;

 

(b)                                 any Liencreated under the Loan Documents;

 

(c)                                  any Lienexisting on any property or asset prior to the acquisition thereof by theBorrower or any Subsidiary (including without limitation Liens securingIndebtedness incurred pursuant to Section 8.01(i)(B)); provided, that (i) such Lien is not created in contemplation of orin connection with such acquisition, (ii) such Lien does not apply to anyother property or assets of the Borrower or any Subsidiary and (iii) suchLien does not materially interfere with the use, occupancy and operation of anyMortgaged Property;

 

(d)                                 Liens for taxesnot yet due or which are being contested in compliance with Section 7.03;

 

(e)                                  carriers’,landlords’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or otherlike Liens arising in the ordinary course of business and securing obligationsthat are not due and payable or which are being contested in compliance with Section 7.03or for which appropriate reserves have been established;

 

(f)                                    pledges anddeposits made in the ordinary course of business in compliance with workmen’scompensation, unemployment insurance and other social security laws orregulations;

 

(g)                                 deposits tosecure the performance of bids, trade contracts (other than for Indebtedness),leases (other than Capital Lease Obligations), statutory obligations, suretyand appeal bonds, performance bonds and other obligations of a like natureincurred in the ordinary course of business;

 

(h)                                 zoningrestrictions, easements, rights-of-way, restrictions on use of real propertyand other similar encumbrances incurred in the ordinary course of businesswhich, in the aggregate, do not 

 

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materiallydetract from the value of the property subject thereto or interfere with theordinary conduct of the business of the Borrower or any of its Subsidiaries ascurrently operated;

 

(i)                                     Liens arisingout of judgments or awards in respect of which the Borrower or any of theSubsidiaries shall in good faith be prosecuting an appeal or proceedings forreview in respect of which there shall be secured a subsisting stay ofexecution pending such appeal or proceedings; provided, that the aggregate amount of all such judgments orawards (and any cash and the fair market value of any property subject to suchLiens) does not exceed $20,000,000 at any time outstanding;

 

(j)                                     licenses,leases or subleases granted by the Borrower or any Subsidiary to third personsin the ordinary course of business not interfering in any material respect withthe business of the Borrower or any Subsidiary;

 

(k)                                  Liens in favorof customs or revenue authorities arising as a matter of law to secure paymentof customs duties in connection with the importation of goods;

 

(l)                                     any interest ofa lessor under Liens arising from precautionary UCC financing statement filingsregarding operating leases entered into by the Borrower or any of itsSubsidiaries in the ordinary course of business;

 

(m)                               Liens arisingout of conditional sale, title retention, consignment or similar arrangementsfor the sale of goods entered into by the Borrower or any of its Subsidiariesin the ordinary course of business;

 

(n)                                 Liens that arecontractual or statutory setoff rights arising in the ordinary course ofbusiness with financial institutions, relating to pooled deposit accounts orsweep accounts of the Borrower and its Subsidiaries to permit satisfaction ofoverdraft or similar obligations incurred in the ordinary course of business orrelating to purchase orders or other agreements entered into with customers ofthe Borrower or any of its Subsidiaries in the ordinary course of business;

 

(o)                                 Liens solely onany cash earnest money deposits by the Borrower or any of its Subsidiaries inconnection with any letter of intent or purchase agreement permitted under thisAgreement;

 

(p)                                 all Liens setforth in the survey and title policies delivered to the Administrative Agentpursuant to Section 5.01(g);

 

(q)                                 any interest ortitle of a licensor, lessor or sublessor under any license or lease agreementpursuant to which rights are granted to the Borrower or any Subsidiary;

 

(r)                                    Liens deemed toexist in connection with investments in repurchase agreements permitted underthis Agreement;

 

(s)                                  Liens securingIndebtedness permitted to be incurred pursuant to Section 8.01(i)(A);provided that such Liens encumber only the property acquired inconnection with such Indebtedness;

 

(t)                                    Liens on assetsof Foreign Subsidiaries securing Indebtedness of Foreign Subsidiaries permittedto be incurred under Section 8.01(i); and

 

(u)                                 Liens on anyassets which are the subject of any GSA Transaction.

 

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8.03                           Sale andLease-Back Transactions.

 

Enterinto any arrangement, directly or indirectly, with any person whereby it shallsell or transfer any property, real or personal, used or useful in itsbusiness, whether now owned or hereafter acquired, and thereafter rent or leasesuch property or other property which it intends to use for substantially thesame purpose or purposes as the property being sold or transferred unless (a) thesale of such property is permitted by Section 8.05****and (b) any Capital Lease Obligations, Synthetic LeaseObligations or Liens arising in connection therewith are permitted by Sections8.01 and 8.02, as applicable.

 

8.04                           Investments, Loansand Advances.

 

Purchase,hold or acquire any Equity Interests, evidences of indebtedness or othersecurities of, make or permit to exist any loans or advances to, or make orpermit to exist any investment or any other interest in, any other person, except:

 

(a)                                  PermittedInvestments;

 

(b)                                 investmentsreceived in connection with the bankruptcy or reorganization of, or settlementof delinquent accounts and disputes with, customers and suppliers, in each casein the ordinary course of business;

 

(c)                                  the Borrowerand the Subsidiaries may make loans and advances in the ordinary course ofbusiness to their respective employees so long as the aggregate principalamount thereof at any time outstanding (determined without regard to anywrite-downs or write-offs of such loans and advances) shall not exceed$3,000,000 at any time and advances in the ordinary course of business ofpayroll payments to employees and for entertainment and travel expenses ofemployees;

 

(d)                                 the Borrowermay enter into****Swap Contracts in the ordinarycourse of business that are not speculative in nature;

 

(e)                                  the Borrowerand its Subsidiaries may (i) acquire and hold receivables owing to it, ifcreated or acquired in the ordinary course of business and payable ordischargeable in accordance with customary trade terms (including the dating ofreceivables) of the Borrower or such Subsidiary and (ii) make loans tocustomers, dealers and suppliers in the ordinary course of business andconsistent with past practices;

 

(f)                                    the Borrowermay acquire and hold obligations of one or more officers or other employees ofthe Borrower or its subsidiaries in connection with such officers’ or employees’acquisition of Equity Interests of the Borrower;

 

(g)                                 purchases ofinventory, raw materials and related assets in the ordinary course of business;

 

(h)                                 in addition toinvestments, loans and advances permitted by paragraphs (a) through (g) above,additional investments, loans and advances by the Borrower and the Subsidiaries(including investments, loans and advances similar or dissimilar in nature tothose permitted by paragraphs (a) through (g) above); providedthat (i) after giving effect to any such investment, loan or advance on aPro Forma Basis, the Borrower is in Pro Forma Compliance, (ii) no Defaultor Event of Default shall have occurred and be continuing or would resulttherefrom and (iii) if such investment involves an acquisition of all orsubstantially all of the assets of a Person or line of business of such Person,or no less than 100% 

 

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ofthe Equity Interests (except for directors’ qualifying shares) of a person(referred to herein as the “Acquired Entity”), (A) the board ofdirectors (or other comparable governing body) of the Acquired Entity shallhave duly approved such acquisition and (B) the property acquired in suchacquisition is used or useful in the same or a related line of business as theBorrower and its Subsidiaries were engaged in as of the Closing Date (or anyreasonable extensions or expansions thereof) (any acquisition of an AcquiredEntity meeting all the criteria of this Section 8.04(h) beingreferred to herein as a “Permitted Acquisition”); and

 

(i)                                     Investments (includinginvestments by the Borrower and the Subsidiaries in the Equity Interests of theSubsidiaries) existing as of the Closing Date and set forth in Schedule 8.04.

 

8.05                           Mergers,Consolidations, Sales of Assets and Acquisitions.

 

(a)                                  Merge into or consolidatewith any other Person, or permit any other Person to merge into or consolidatewith it, or sell, transfer, lease or otherwise dispose of (in one transactionor in a series of transactions) all or substantially all of the assets (whethernow owned or hereafter acquired) of the Borrower or less than all the EquityInterests of any Subsidiary, or purchase, lease or otherwise acquire (in onetransaction or a series of transactions) all or any substantial part of theassets of any other person, except that (i) the Borrower and anySubsidiary may purchase and sell inventory, materials and equipment in theordinary course of business and may license intellectual property in theordinary course of business, (ii) the Borrower and any Subsidiary may sellobsolete, damaged or worn-out inventory and equipment in the ordinary course ofbusiness and (iii) if at the time thereof and immediately after givingeffect thereto no Event of Default or Default shall have occurred and becontinuing (u) any Subsidiary may change its form of organization incompliance with Section 7.06(a), if applicable, (v) any Personmay make investments and advances permitted by Section 8.04, (w) anywholly owned Subsidiary may merge into the Borrower in a transaction in whichthe Borrower is the surviving corporation, (x) any wholly owned Subsidiarymay merge into or consolidate with any other wholly owned Subsidiary in atransaction in which the surviving entity is a wholly owned Subsidiary and noperson other than the Borrower, a wholly owned Subsidiary or the De MinimisHolders receives any consideration (provided, that if any party to anysuch transaction is a Loan Party, the surviving entity of such transactionshall be a Loan Party), (y) the Borrower and any Subsidiary may makePermitted Acquisitions and (z) any Subsidiary of the Borrower may merge withanother person in a transaction constituting an Asset Sale permitted hereunder.

 

(b)                                 Engage in anyAsset Sale otherwise permitted under paragraph (a) above unless(i) such Asset Sale is for consideration at least 75% of which is cash(other than in the case of a like-kind exchange or trade-in of one asset foranother asset used or useful in the business of the Borrower and itsSubsidiaries) and (ii) such consideration is at least equal to the bookvalue of the assets being sold, transferred, leased or disposed of and the fairmarket value of all assets sold, transferred, leased or disposed of pursuant tothis paragraph (b) shall not exceed 7.5% of the total book value of theassets of the Borrower and its Subsidiaries on a consolidated basis, determinedas of the date of the most recent internally available balance sheet.  Upon a sale of assets or the sale of EquityInterests of a Subsidiary of a Loan Party permitted by this Section 8.05,the Administrative Agent shall deliver to the Borrower, upon the Borrower’srequest and at the Borrower’s expense, such documentation as is reasonablynecessary to evidence the release of the Administrative Agent’s securityinterest in such assets or Equity Interests, including, without limitation,amendments or terminations of UCC financing statements, the return of stockcertificates and the release of a Guarantor (as applicable) from itsobligations under the Loan Documents.

 

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8.06                           RestrictedPayments; Restrictive Agreements.

 

(a)                                  Declare or make, or agree todeclare or make, directly or indirectly, any Restricted Payment (includingpursuant to any Synthetic Purchase Agreement), or incur any obligation(contingent (unless the contingency is the repayment of the Obligations orreceipt of consent from the requisite lenders under this Agreement) orotherwise) to do so; provided, however, that:

 

(i)                                     any direct or indirectwholly owned Domestic Subsidiary of the Borrower and any Foreign Subsidiary maydeclare and pay dividends or make other distributions ratably to its equityholders;

 

(ii)                                  so long as no Event ofDefault or Default shall have occurred and be continuing or would resulttherefrom, the Borrower may repurchase Equity Interests of the Borrower ownedby past or present officers, directors or employees of the Borrower or theSubsidiaries or make payments to employees of the Borrower or the Subsidiariesupon termination of employment of such employees (including as a result ofretirement or severance) in connection with the exercise of stock options,stock appreciation rights or similar equity incentives or equity basedincentives pursuant to management incentive plans or in connection with thedeath or disability of such employees in an aggregate amount not to exceed $5,000,000in any fiscal year (it being agreed that any amount not utilized in any fiscalyear may be carried forward and utilized in the immediately following fiscalyear and that any amount spent in any fiscal year shall be deemed to utilizeany such carried forward amount first);

 

(iii)                               the Borrower may makeRestricted Payments to fund amounts payable to any participant in any Plan ofthe Borrower or the Subsidiaries upon the termination of the employment of suchparticipant in an amount not to exceed $1,000,000 in any fiscal year of theBorrower;

 

(iv)                              in addition to theRestricted Payments in clauses (i)-(iii) above, the Borrower and itsSubsidiaries may make additional Restricted Payments (including RestrictedPayments similar or dissimilar to those in clauses (i) through (iii) above);provided, that (A) no Default or Event of Default shall haveoccurred and be continuing or would result therefrom and (B) after givingeffect to any such Restricted Payment on a Pro Forma Basis, the Borrower is inPro Forma Compliance; and

 

Notwithstandingthe foregoing, in the event that the failure to comply with any FinancialPerformance Covenant is cured through the exercise of the Cure Right set forthin Article IX, Sections 8.06(a)(iii) and (iv) aboveshall only be available to the Loan Parties if (x) the Required Lendersconsent to the relevant Restricted Payment pursuant to Section 8.06(a)(iii) and(iv) or (y) the Borrower is in compliance with the FinancialPerformance Covenants as of the end of any two consecutive fiscal quartersfollowing the fiscal quarter in which the Borrower exercised its Cure Right.

 

(b)                                 Enter into,incur or permit to exist any agreement or other arrangement that prohibits,restricts or imposes any condition upon (i) the ability of the Borrower orany Subsidiary to create, incur or permit to exist any Lien upon any of itsproperty or assets to secure the Obligations or (ii) the ability of anySubsidiary to pay dividends or other distributions with respect to any of itsEquity Interests or to make or repay loans or advances to the Borrower or anyother Subsidiary or to Guarantee Indebtedness of the Borrower or any otherSubsidiary; provided, that (A) the foregoing shall not apply torestrictions and conditions imposed by law or by any Loan Document, (B) theforegoing shall not apply to customary restrictions and conditions contained inagreements relating to the sale of stock or assets of a Subsidiary pending suchsale, provided, such restrictions and conditionsapply only to the Subsidiary that is to be sold and such sale is permittedhereunder, (C) clause (i) of the foregoing shall not apply torestrictions or 

 

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conditionsimposed by any agreement relating to secured Indebtedness permitted by thisAgreement if such restrictions or conditions apply only to the property orassets securing such Indebtedness and subject to the obligations of theBorrower under Section 7.09(b) hereof, (D) clause (i) ofthe foregoing shall not apply to customary provisions in leases and othercontracts restricting the assignment thereof and (E) clause (i) and (ii) ofthe foregoing shall not apply to restrictions and conditions imposed (1) underIndebtedness of Foreign Subsidiaries incurred under Section 8.01 or(2) under contracts with customers entered into the ordinary course ofbusiness that contain restrictions on cash or other deposits or net worth.

 

8.07                           Transactionswith Affiliates.

 

Exceptfor transactions by or among Loan Parties or by or among Foreign Subsidiaries,sell or transfer any property or assets to, or purchase or acquire any propertyor assets from, or otherwise engage in any other transactions with, any of itsAffiliates, except that (a) the Borrower or any Subsidiary may engage inany of the foregoing transactions at prices and on terms and conditions notless favorable to the Borrower or such Subsidiary than could be obtained on anarm’s-length basis from unrelated third parties, (b) Restricted Paymentsmay be effected to the extent provided in Section 8.06,(c) reasonable fees and compensation may be paid to, and indemnities maybe provided on behalf of, officers, directors and employees of, and consultantsto, the Borrower and the Subsidiaries, as determined by the board of directorsor equivalent governing body or appropriate officers of the Borrower in goodfaith, (d) securities may be issued and other payments, awards or grants(in cash, equity securities or otherwise) may be made pursuant to, or withrespect to the funding of, employment arrangements, stock options and stockownership plans approved by the board of directors or equivalent governing bodyof the Borrower in good faith, (e) the Loan Parties may perform theirrespective obligations under the terms of any registration rights agreement, (f) loans,investments and advances may be made to the extent permitted by Sections8.01 and 8.04, and (g) transfers of property or assets fromLoan Parties to Foreign Subsidiaries in the ordinary course of business nototherwise prohibited under this Agreement.

 

8.08                           Business ofBorrower and Subsidiaries.

 

Engageat any time in any business or business activity other than the businesscurrently conducted by them and business activities that constitute areasonable extension, development or expansion thereof reasonably incidentalthereto.

 

8.09                           Amendments ofSubordinated Indebtedness.

 

Permitany supplement, modification or amendment of any subordinated Indebtedness ofthe Borrower or any Subsidiary that would cause such Indebtedness to not be incompliance with the subordination provisions of Section 8.01(j) orthat is reasonably likely to adversely affect the ability of the Borrower torepay the Obligations when due without the prior written consent of theAdministrative Agent.

 

8.10                           CapitalExpenditures.

 

(a)                                  Permit the aggregate amountof Capital Expenditures made by the Borrower and the Subsidiaries in any fiscalyear of the Borrower to exceed the sum of (i) the amount set forth belowfor such fiscal year as the “Capital Expenditure Base Amount” for such year,and (ii) the Acquired CapEx Amount:

 

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| **Fiscal  Year Ended**                                         | ** ** | **Capital Expenditure Base Amount** | ** ** |
|----------------------------------------------------------------|------------|-------------------------------------|------------|
| December 31, 2007                                         |       | $                                   | 30,000,000 |   |
| December 31, 2008 and each fiscal year ending  thereafter |       | $                                   | 40,000,000 |   |

 

Forpurposes of this Section 8.10, the **“**AcquiredCapEx Amount”, with respect to any Acquired Entity, shall equal the productof (x) the aggregate amount of Capital Expenditures made by the AcquiredEntity in the two fiscal years prior to the date of the Permitted Acquisitionand (y) 0.50.

 

(b)                                 The amount ofpermitted Capital Expenditures set forth in paragraph (a) above (asadjusted in accordance with the terms thereof) in respect of any fiscal yearcommencing with the fiscal year ending on December 31, 2007, shall beincreased (but not decreased) by the amount of unused permitted CapitalExpenditures for the two immediately preceding fiscal years; provided,that Capital Expenditures made pursuant to this Section during any fiscalyear shall be deemed made, first, in respect of amounts carried overfrom the fiscal year two years prior thereto pursuant to the precedingsentence, second, in respect of amounts carried over from the fiscalyear immediately prior thereto pursuant to the preceding sentence and, third,in respect of amounts permitted for such fiscal year as provided above.

 

8.11                           Financial Covenants.

 

(a)                                  Permit theConsolidated Interest Coverage Ratio as of the end of any fiscal quarter of theBorrower to be less than 3.0 to 1.0.

 

(b)                                 Permit theConsolidated Net Leverage Ratio as of the end of any fiscal quarter of theBorrower to be greater than 4.0 to 1.0.

 

8.12                           Fiscal Year.

 

Changeits fiscal year-end to a date other than December 31.

 

ARTICLE IX

 

EVENTS OF DEFAULT ANDREMEDIES

 

9.01                           Events ofDefault.

 

Incase of the happening of any of the following events (“Events of Default”):

 

(a)                                  any representation orwarranty made or deemed made in or in connection with any Loan Document or theborrowings or issuances of Letters of Credit hereunder, or any representation,warranty, statement or information contained in any report, certificate, financialstatement or other instrument furnished in connection with or pursuant to anyLoan Document, shall prove to have been false or misleading in any materialrespect when so made, deemed made or furnished;

 

(b)                                 default shall be made in thepayment of any principal of any Loan or the reimbursement with respect to anyL/C Disbursement when and as the same shall become due and payable, whether atthe due date thereof or at a date fixed for prepayment thereof or byacceleration thereof or otherwise;

 

(c)                                  default shall be made in thepayment of any interest on any Loan or L/C Disbursement or of any Fee or anyother amount (other than an amount referred to in (b) above) due under anyLoan 

 

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Document,when and as the same shall become due and payable, and such default shallcontinue unremedied for a period of three Business Days;

 

(d)                                 default shall be made in thedue observance or performance by the Borrower or any Subsidiary of anycovenant, condition or agreement contained in Section 7.01(a), 7.05(a),7.08 or in Article VIII;

 

(e)                                  default shall be made in thedue observance or performance by the Borrower or any Subsidiary of anycovenant, condition or agreement contained in any Loan Document (other thanthose specified in (b), (c) or (d) above) and such default shallcontinue unremedied for a period of 30 days after notice thereof from theAdministrative Agent or any Lender to the Borrower;

 

(f)                                    (i) the Borrower or anyMaterial Subsidiary shall fail to pay any principal or interest due in respectof any Material Indebtedness, when and as the same shall become due andpayable, or (ii) any other event or condition occurs that results in anyMaterial Indebtedness becoming due prior to its scheduled maturity or that enablesor 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 onits or their behalf to cause any Material Indebtedness to become due, or torequire the prepayment, repurchase, redemption or defeasance thereof, prior toits scheduled maturity; provided, that this clause (ii) shall notapply to secured Indebtedness that becomes due as a result of the voluntarysale or transfer of the property or assets securing such Indebtedness;

 

(g)                                 an involuntary proceedingshall be commenced or an involuntary petition shall be filed in a court ofcompetent jurisdiction seeking (i) relief in respect of the Borrower orany Material Subsidiary, or of a substantial part of the property or assets ofthe Borrower or a Material Subsidiary, under Title 11 of the United StatesCode, as now constituted or hereafter amended, or any other Federal, state orforeign bankruptcy, insolvency, receivership or similar law, (ii) theappointment of a receiver, trustee, custodian, sequestrator, conservator orsimilar official for the Borrower or any Material Subsidiary or for asubstantial part of the property or assets of the Borrower or a MaterialSubsidiary or (iii) the winding-up or liquidation of the Borrower or anyMaterial Subsidiary; and such proceeding or petition shall continue undismissedfor 60 days or an order or decree approving or ordering any of the foregoingshall be entered;

 

(h)                                 the Borrower or any MaterialSubsidiary shall (i) voluntarily commence any proceeding or file anypetition seeking relief under Title 11 of the United States Code, as nowconstituted or hereafter amended, or any other Federal, state or foreignbankruptcy, insolvency, receivership or similar law, (ii) consent to theinstitution of, or fail to contest in a timely and appropriate manner, anyproceeding or the filing of any petition described in (g) above, (iii) applyfor or consent to the appointment of a receiver, trustee, custodian,sequestrator, conservator or similar official for the Borrower or any MaterialSubsidiary or for a substantial part of the property or assets of the Borroweror any Material Subsidiary, (iv) file an answer admitting the materialallegations of a petition filed against it in any such proceeding, (v) makea general assignment for the benefit of creditors, (vi) become unable,admit in writing its inability or fail generally to pay its debts as theybecome due or (vii) take any action for the purpose of effecting any ofthe foregoing;

 

(i)                                     one or more judgments forthe payment of money in an aggregate amount in excess of $20,000,000 (net ofamounts covered by independent third party insurance as to which the insurerhas been notified of such judgment or order and does not deny coverage and ofamounts covered by an indemnity from a person that, in the reasonable judgmentof the Administrative Agent, is creditworthy) from a party shall be renderedagainst the Borrower, any Material Subsidiary or any combination thereof andthe same shall remain unsatisfied and undischarged for a period of 30consecutive days during which execution shall not be effectively stayed, or anyaction shall be legally taken by a judgment creditor to 

 

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levyupon assets or properties of the Borrower or any Material Subsidiary to enforceany such judgment; an ERISA Event shall have occurred that, in the opinion ofthe Required Lenders, when taken together with all other ERISA Events that haveoccurred, could reasonably be expected to result in liability of the Borrowerand its ERISA Affiliates in an aggregate amount exceeding $20,000,000;

 

(j)                                     any Guarantee for any reasonshall cease to be in full force and effect (other than in accordance with itsterms), or any Guarantor shall deny in writing that it has any furtherliability hereunder (other than as a result of the discharge of such Guarantorin accordance with the terms of the Loan Documents);

 

(k)                                  any security interest in anymaterial item of Collateral purported to be created by any Collateral Documentshall cease to be, or shall be asserted by the Borrower or any other Loan Partynot to be, a valid, perfected, first priority (except as otherwise expresslyprovided in this Agreement or such Security Document) security interest in thesecurities, assets or properties covered thereby, except to the extent that anysuch loss of perfection or priority results from the failure of theAdministrative Agent to maintain possession of certificates representingsecurities pledged under the Security Agreement and except to the extent thatsuch loss is covered by a lender’s title insurance policy and the relatedinsurer shall not have denied or disclaimed in writing that such loss iscovered by such title insurance policy; or there shall have occurred a Changein Control;

 

then,and in every such event (other than an event with respect to the Borrowerdescribed in paragraph (g) or (h)(i)-(v) above), and at any timethereafter 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 differenttimes:  (i) terminate forthwith theCommitments and (ii) declare the Loans then outstanding to be forthwithdue and payable in whole or in part, whereupon the principal of the Loans sodeclared to be due and payable, together with accrued interest thereon and anyunpaid accrued Fees and all other liabilities of the Borrower accrued hereunderand under any other Loan Document, shall become forthwith due and payable,without presentment, demand, protest or any other notice of any kind, all ofwhich are hereby expressly waived by the Borrower, anything contained herein orin any other Loan Document to the contrary notwithstanding; and in any eventwith respect to the Borrower described in paragraph (g) or (h)(i)-(v) above,the Commitments shall automatically terminate and the principal of the Loansthen outstanding, together with accrued interest thereon and any unpaid accruedFees and all other liabilities of the Borrower accrued hereunder and under anyother Loan Document, shall automatically become due and payable, withoutpresentment, demand, protest or any other notice of any kind, all of which arehereby expressly waived by the Borrower, anything contained herein or in anyother Loan Document to the contrary notwithstanding.

 

Notwithstandinganything to the contrary contained in this Article IX, in the eventthat the Borrower would otherwise fail to comply with the requirements of Section 8.11(a) or(b) (each a “Financial Performance Covenant”) at the end ofany fiscal quarter, at any time within ten days after the date on which aCompliance Certificate must be delivered for the end of such fiscal quarter orfiscal year, as applicable, the Borrower shall have the right, exercisable atany time during the term of this Agreement (provided that such right may not beexercised with respect to more than two fiscal quarters during any consecutivefour fiscal quarter period), to issue Permitted Cure Securities (as definedbelow) for cash or otherwise receive cash contributions to the capital of theBorrower (in any case, not in excess of $25,000,000 in the aggregate in anyconsecutive four fiscal quarter period), and to contribute any such cash to thecapital of Borrower (the “Cure Right”), and upon the receipt by theBorrower of such cash (the “Cure Amount”) pursuant to the exercise bythe Borrower of such Cure Right, such Financial Performance Covenant shall berecalculated giving effect to the following pro forma adjustments:

 

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(i)                                     ConsolidatedEBITDA shall be increased solely for the purpose of measuring the FinancialPerformance Covenants and not for any other purpose under this Agreement, by anamount equal to the Cure Amount; and

 

(ii)                                  if, aftergiving effect to the foregoing recalculations, the Borrower shall then be incompliance with the requirements of all Financial Performance Covenants, theBorrower shall be deemed to have satisfied the requirements of the FinancialPerformance Covenants as of the relevant date of determination with the sameeffect as though there had been no failure to comply therewith at such date,and the applicable breach or default of any such Financial Performance Covenantthat would have otherwise occurred on such date but for the application of theforegoing recalculations shall be deemed not to have occurred.

 

Asused in this Article IX, the term “Permitted Cure Securities” shallmean an equity security of the Borrower having no mandatory redemption,repurchase, repayment or similar requirements prior to the six-monthanniversary of the Maturity Date and upon which all dividends or distributions,at the election of the Borrower, may be payable in additional shares of suchequity security.

 

9.02                           Application ofFunds.

 

Afterthe exercise of remedies provided for in Section 9.01 (or after theLoans have automatically become immediately due and payable and the L/CObligations have automatically been required to be Cash Collateralized as setforth in Section 2.03(g)), any amounts received on account of theObligations shall be applied by the Administrative Agent in the followingorder:

 

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

 

Second, to payment of that portion of the Obligationsconstituting fees, indemnities and other amounts (other than principal,interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer(including fees, charges and disbursements of counsel to the respective Lendersand the L/C Issuer and amounts payable under Article III), ratablyamong them in proportion to the respective amounts described in this clause Secondpayable to them;

 

Third, to payment of that portion of the Obligationsconstituting accrued and unpaid Letter of Credit Fees and interest on the Loansand L/C Borrowings and fees, premiums and scheduled periodic payments, and anyinterest accrued thereon, due under any Swap Contract between any Loan Partyand any Lender, or any Affiliate of a Lender, to the extent such Swap Contractis permitted by Section 8.03(d), ratably among the Lenders (and, inthe case of such Swap Contracts, Affiliates of Lenders) and the L/C Issuer inproportion to the respective amounts described in this clause Third heldby them;

 

Fourth, to (a) payment of that portion of theObligations constituting unpaid principal of the Loans and L/C Borrowings, (b) paymentof breakage, termination or other payments, and any interest accrued thereon,due under any Swap Contract between any Loan Party and any Lender, or anyAffiliate of a Lender, to the extent such Swap Contract is permitted by Section 8.03(d),(c) payments of amounts due under any Treasury Management Agreementbetween any Loan Party and any Lender, or any Affiliate of a Lender and (d) CashCollateralize that portion of L/C Obligations comprised of the aggregateundrawn amount of Letters of Credit, ratably among the 

 

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Lenders(and, in the case of such Swap Contracts, Affiliates of Lenders) and the L/CIssuer in proportion to the respective amounts described in this clause Fourthheld by them; and

 

Last, the balance, if any, after all of the Obligationshave been indefeasibly paid in full, to the Borrower or as otherwise requiredby Law.

 

Subjectto Section 2.03(c), amounts used to Cash Collateralize theaggregate undrawn amount of Letters of Credit pursuant to clause Fourthabove shall be applied to satisfy drawings under such Letters of Credit as theyoccur.  If any amount remains on depositas Cash Collateral after all Letters of Credit have either been fully drawn orexpired, such remaining amount shall be applied to the other Obligations, ifany, in the order set forth above.

 

ARTICLE X

 

ADMINISTRATIVE AGENT

 

10.01                     Appointment andAuthority.

 

Eachof the Lenders and the L/C Issuer hereby irrevocably appoints Bank of Americato act on its behalf as the Administrative Agent hereunder and under the otherLoan Documents and authorizes the Administrative Agent to take such actions onits behalf and to exercise such powers as are delegated to the AdministrativeAgent by the terms hereof or thereof, together with such actions and powers asare reasonably incidental thereto.  Theprovisions of this Article are solely for the benefit of theAdministrative Agent, the Lenders and the L/C Issuer, and neither the Borrowernor any other Loan Party shall have rights as a third party beneficiary of anyof such provisions.

 

10.02                     Rights as aLender.

 

ThePerson serving as the Administrative Agent hereunder shall have the same rightsand powers in its capacity as a Lender as any other Lender and may exercise thesame as though it were not the Administrative Agent and the term “Lender” or “Lenders”shall, unless otherwise expressly indicated or unless the context otherwiserequires, include the Person serving as the Administrative Agent hereunder inits individual capacity.  Such Person andits Affiliates may accept deposits from, lend money to, act as the financialadvisor or in any other advisory capacity for and generally engage in any kindof business with any Loan Party or any Subsidiary or other Affiliate thereof asif such Person were not the Administrative Agent hereunder and without any dutyto account therefor to the Lenders.

 

10.03                     ExculpatoryProvisions.

 

TheAdministrative Agent shall not have any duties or obligations except thoseexpressly set forth herein and in the other Loan Documents.  Without limiting the generality of theforegoing, the Administrative Agent:

 

(a)                                  shall not be subject to anyfiduciary or other implied duties, regardless of whether a Default has occurredand is continuing;

 

(b)                                 shall not have any duty totake any discretionary action or exercise any discretionary powers, exceptdiscretionary rights and powers expressly contemplated hereby or by the otherLoan Documents that the Administrative Agent is required to exercise asdirected in writing by the Required Lenders (or such other number or percentageof the Lenders as shall be expressly provided for herein or in the other LoanDocuments), provided that the Administrative 

 

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Agentshall not be required to take any action that, in its opinion or the opinion ofits counsel, may expose the Administrative Agent to liability or that iscontrary to any Loan Document or applicable law; and

 

(c)                                  shall not, except asexpressly set forth herein and in the other Loan Documents, have any duty todisclose, and shall not be liable for the failure to disclose, any informationrelating to any Loan Party or any of its Affiliates that is communicated to orobtained by the Person serving as the Administrative Agent or any of itsAffiliates in any capacity.

 

TheAdministrative Agent shall not be liable for any action taken or not taken byit (i) with the consent or at the request of the Required Lenders (or suchother number or percentage of the Lenders as shall be necessary, or as theAdministrative Agent shall believe in good faith shall be necessary, under thecircumstances as provided in Sections 11.01 and 9.02) or (ii) inthe absence of its own gross negligence or willful misconduct.  The Administrative Agent shall be deemed notto have knowledge of any Default unless and until notice describing suchDefault is given to the Administrative Agent by the Borrower, a Lender or theL/C Issuer.

 

TheAdministrative Agent shall not be responsible for or have any duty to ascertainor inquire into (i) any statement, warranty or representation made in orin connection with this Agreement or any other Loan Document, (ii) thecontents of any certificate, report or other document delivered hereunder orthereunder or in connection herewith or therewith, (iii) the performanceor observance of any of the covenants, agreements or other terms or conditionsset forth herein or therein or the occurrence of any Default, (iv) thevalidity, enforceability, effectiveness or genuineness of this Agreement, anyother Loan Document or any other agreement, instrument or document or (v) thesatisfaction of any condition set forth in Article V or elsewhereherein, other than to confirm receipt of items expressly required to bedelivered to the Administrative Agent.

 

10.04                     Reliance byAdministrative Agent.

 

TheAdministrative Agent shall be entitled to rely upon, and shall not incur anyliability for relying upon, any notice, request, certificate, consent,statement, instrument, document or other writing (including any electronicmessage, Internet or intranet website posting or other distribution)believed by it to be genuine and to have been signed, sent or otherwiseauthenticated by the proper Person.  TheAdministrative Agent also may rely upon any statement made to it orally or bytelephone and believed by it to have been made by the proper Person, and shallnot incur any liability for relying thereon. In determining compliance with any condition hereunder to the making ofa Loan, or the issuance of a Letter of Credit, that by its terms must befulfilled to the satisfaction of a Lender or the L/C Issuer, the AdministrativeAgent may presume that such condition is satisfactory to such Lender or the L/CIssuer unless the Administrative Agent shall have received notice to thecontrary from such Lender or the L/C Issuer prior to the making of such Loan orthe issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may becounsel for the Loan Parties), independent accountants and other expertsselected by it, and shall not be liable for any action taken or not taken by itin accordance with the advice of any such counsel, accountants or experts.

 

10.05                     Delegation ofDuties.

 

TheAdministrative Agent may perform any and all of its duties and exercise itsrights and powers hereunder or under any other Loan Document by or through anyone or more sub-agents appointed by the Administrative Agent.  The Administrative Agent and any suchsub-agent may perform any and all of its duties and exercise its rights andpowers by or through their respective Related Parties.  The exculpatory provisions of this Article shallapply to any such sub-agent and to the Related Parties of the 

 

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AdministrativeAgent and any such sub-agent, and shall apply to their respective activities inconnection with the syndication of the credit facilities provided for herein aswell as activities as Administrative Agent.

 

10.06                     Resignation ofAdministrative Agent.

 

TheAdministrative Agent may at any time give notice of its resignation to theLenders, the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required Lendersshall have the right, in consultation with the Borrower, to appoint asuccessor, which shall be a bank with an office in the United States, or anAffiliate of any such bank with an office in the United States.  If no such successor shall have been soappointed by the Required Lenders and shall have accepted such appointmentwithin 30 days after the retiring Administrative Agent gives notice of itsresignation, then the retiring Administrative Agent may on behalf of theLenders and the L/C Issuer, appoint a successor Administrative Agent meetingthe qualifications set forth above; provided that if the AdministrativeAgent shall notify the Borrower and the Lenders that no qualifying Person hasaccepted such appointment, then such resignation shall nonetheless becomeeffective in accordance with such notice and (1) the retiringAdministrative Agent shall be discharged from its duties and obligationshereunder and under the other Loan Documents and (2) all payments,communications and determinations provided to be made by, to or through theAdministrative Agent shall instead be made by or to each Lender and the L/CIssuer directly, until such time as the Required Lenders appoint a successorAdministrative Agent as provided for above in this Section.  Upon the acceptance of a successor’sappointment as Administrative Agent hereunder, such successor shall succeed toand become vested with all of the rights, powers, privileges and duties of theretiring (or retired) Administrative Agent, and the retiring AdministrativeAgent shall be discharged from all of its duties and obligations hereunder orunder the other Loan Documents (if not already discharged therefrom as providedabove in this Section).  The fees payableby the Borrower to a successor Administrative Agent shall be the same as thosepayable to its predecessor unless otherwise agreed between the Borrower andsuch successor.  After the retiringAdministrative Agent’s resignation hereunder and under the other LoanDocuments, the provisions of this Article and Section 11.04shall continue in effect for the benefit of such retiring Administrative Agent,its sub-agents and their respective Related Parties in respect of any actionstaken or omitted to be taken by any of them while the retiring AdministrativeAgent was acting as Administrative Agent.

 

Anyresignation by Bank of America as Administrative Agent pursuant to this Section shallalso constitute its resignation as L/C Issuer and Swing Line Lender.  Upon the acceptance of a successor’sappointment as Administrative Agent hereunder, (a) such successor shallsucceed to and become vested with all of the rights, powers, privileges andduties of the retiring L/C Issuer and Swing Line Lender, (b) the retiringL/C Issuer and Swing Line Lender shall be discharged from all of theirrespective duties and obligations hereunder or under the other Loan Documentsand (c) the successor L/C Issuer shall issue letters of credit insubstitution for the Letters of Credit, if any, outstanding at the time of suchsuccession or make other arrangements satisfactory to the retiring L/C Issuerto effectively assume the obligations of the retiring L/C Issuer with respectto such Letters of Credit.

 

10.07                     Non-Reliance onAdministrative Agent and Other Lenders.

 

EachLender and the L/C Issuer acknowledges that it has, independently and withoutreliance upon the Administrative Agent or any other Lender or any of theirRelated Parties and based on such documents and information as it has deemedappropriate, made its own credit analysis and decision to enter into thisAgreement.  Each Lender and the L/CIssuer also acknowledges that it will, independently and without reliance uponthe Administrative Agent or any other Lender or any of their Related Partiesand based on such documents and information as it shall from time to time deemappropriate, continue to 

 

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makeits own decisions in taking or not taking action under or based upon thisAgreement, any other Loan Document or any related agreement or any documentfurnished hereunder or thereunder.

 

10.08                     No OtherDuties; Etc.

 

Anythingherein to the contrary notwithstanding, none of the bookrunners, arrangers, syndicationagents, documentation agents or co-agents shall have any powers, duties orresponsibilities under this Agreement or any of the other Loan Documents,except in its capacity, as applicable, as the Administrative Agent, a Lender orthe L/C Issuer hereunder.

 

10.09                     AdministrativeAgent May File Proofs of Claim.

 

Incase of the pendency of any receivership, insolvency, liquidation, bankruptcy,reorganization, arrangement, adjustment, composition or other judicialproceeding relative to any Loan Party, the Administrative Agent (irrespectiveof whether the principal of any Loan or L/C Obligation shall then be due andpayable as herein expressed or by declaration or otherwise and irrespective ofwhether the Administrative Agent shall have made any demand on the Borrower)shall be entitled and empowered, by intervention in such proceeding orotherwise:

 

(a)                                  to file and prove a claimfor the whole amount of the principal and interest owing and unpaid in respectof the Loans, L/C Obligations and all other Obligations (other than obligationsunder Swap Contracts or Treasury Management Agreements to which theAdministrative Agent is not a party) that are owing and unpaid and to file suchother documents as may be necessary or advisable in order to have the claims ofthe Lenders, the L/C Issuer and the Administrative Agent (including any claimfor the reasonable compensation, expenses, disbursements and advances of theLenders, the L/C Issuer and the Administrative Agent and their respectiveagents and counsel and all other amounts due the Lenders, the L/C Issuer andthe Administrative Agent under Sections 2.03(i) and (j), 2.09and 11.04) allowed in such judicial proceeding; and

 

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

 

andany custodian, receiver, assignee, trustee, liquidator, sequestrator or othersimilar official in any such judicial proceeding is hereby authorized by eachLender and the L/C Issuer to make such payments to the Administrative Agentand, in the event that the Administrative Agent shall consent to the making ofsuch payments directly to the Lenders and the L/C Issuer, to pay to theAdministrative Agent any amount due for the reasonable compensation, expenses,disbursements and advances of the Administrative Agent and its agents andcounsel, and any other amounts due the Administrative Agent under Sections2.09 and 11.04.

 

Nothingcontained herein shall be deemed to authorize the Administrative Agent toauthorize or consent to or accept or adopt on behalf of any Lender or the L/CIssuer any plan of reorganization, arrangement, adjustment or compositionaffecting the Obligations or the rights of any Lender or to authorize theAdministrative Agent to vote in respect of the claim of any Lender in any suchproceeding.

 

10.10                     Collateral andGuaranty Matters.

 

The Lenders and the L/C Issuer irrevocably authorizethe Administrative Agent, at its option and in its discretion,

 

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(a)                                  to release anyLien on any Collateral granted to or held by the Administrative Agent under anyLoan Document (i) upon termination of the Aggregate Revolving Commitmentsand payment in full of all Obligations (other than (A) contingentindemnification obligations and (B) other than with respect to amountscurrently due thereunder, Cash Management Obligations and obligations under orin respect of Swap Contracts) and the expiration or termination of all Lettersof Credit, (ii) that is transferred or to be transferred as part of or inconnection with any Asset Sale permitted hereunder or under any other LoanDocument or any Involuntary Disposition, or (iii) as approved inaccordance with Section 11.01;

 

(b)                                 to subordinateany Lien on any property granted to or held by the Administrative Agent underany Loan Document to the holder of any Lien on such property that is permittedby Section 8.02(c);

 

(c)                                  to release anyGuarantor from its obligations under the Guaranty if such Person ceases to be aSubsidiary as a result of a transaction permitted hereunder; and

 

(d)                                 upon theoccurrence of a Release of Collateral Event, to release all Collateral otherthan Collateral consisting of Equity Interests of the Borrower (if applicable)and its Subsidiaries; provided, however, that if such Release ofCollateral Event ceases to be continuing and in effect at any time, theRequired Lenders or the Administrative Agent may require first prioritysecurity interests on the same categories of Collateral that was previously released,such security interests to be created and perfected within 30 days of noticefrom the Required Lenders or the Administrative Agent to the Borrower.

 

Upon request by the Administrative Agent at anytime, the Required Lenders will confirm in writing the Administrative Agent’sauthority to release or subordinate its interest in particular types or itemsof property, or to release any Guarantor from its obligations under theGuaranty, pursuant to this Section 10.10.

 

ARTICLE XI

 

MISCELLANEOUS

 

11.01                     Amendments, Etc.

 

Noamendment or waiver of any provision of this Agreement or any other LoanDocument, and no consent to any departure by the Borrower or any other LoanParty therefrom, shall be effective unless in writing signed by the RequiredLenders and the Borrower or the applicable Loan Party, as the case may be, andacknowledged by the Administrative Agent, and each such waiver or consent shallbe effective only in the specific instance and for the specific purpose forwhich given; provided, further, that

 

(a)                                  no such amendment, waiver orconsent shall:

 

(i)                                     extend orincrease the Commitment of a Lender (or reinstate any Commitment terminatedpursuant to Section 9.01) without the written consent of suchLender whose Commitment is being extended or increased (it being understood andagreed that a waiver of any condition precedent set forth in Section 5.02or of any Default or a mandatory reduction in Commitments is not considered anextension or increase in Commitments of any Lender);

 

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(ii)                                  postpone anydate fixed by this Agreement or any other Loan Document for any payment ofprincipal (excluding mandatory prepayments), interest, fees or other amountsdue to the Lenders (or any of them) or any scheduled or mandatory reduction ofthe Commitments hereunder or under any other Loan Document without the writtenconsent of each Lender entitled to receive such payment or whose Commitmentsare to be reduced;

 

(iii)                               reduce theprincipal of, or the rate of interest specified herein on, any Loan or L/CBorrowing, or (subject to clause (i) of the final proviso to this Section 11.01)any fees or other amounts payable hereunder or under any other Loan Documentwithout the written consent of each Lender entitled to receive such payment ofprincipal, interest, fees or other amounts; provided, however,that only the consent of the Required Lenders shall be necessary to amend thedefinition of “Default Rate” or to waive any obligation of the Borrower to payinterest or Letter of Credit Fees at the Default Rate;

 

(iv)                              change Section 2.13or Section 9.03 in a manner that would alter the pro rata sharingof payments required thereby without the written consent of each Lenderdirectly affected thereby;

 

(v)                                 amend Section 1.05or the definition of “Alternative Currency” without the written consent of eachLender;

 

(vi)                              change anyprovision of this Section 11.01(a) or the definition of “RequiredLenders” without the written consent of each Lender directly affected thereby;

 

(vii)                           except inconnection with an Asset Sale permitted under Section 8.05, releaseall or substantially all of the Collateral without the written consent of eachLender directly affected thereby or as provided in Section 10.10;or

 

(viii)                        release theBorrower or, except in connection with a merger or consolidation permittedunder Section 8.05 or an Asset Sale permitted under Section 8.05,all or substantially all of the Guarantors without the written consent of eachLender directly affected thereby, except to the extent the release of anyGuarantor is permitted pursuant to Section 10.10 (in which casesuch release may be made by the Administrative Agent acting alone).

 

(b)                                 unless alsosigned by the L/C Issuer, no amendment, waiver or consent shall affect therights or duties of the L/C Issuer under this Agreement or any Issuer Documentrelating to any Letter of Credit issued or to be issued by it;

 

(c)                                  unless alsosigned by the Swing Line Lender, no amendment, waiver or consent shall affectthe rights or duties of the Swing Line Lender under this Agreement;

 

(d)                                 unless alsosigned by the Administrative Agent, no amendment, waiver or consent shallaffect the rights or duties of the Administrative Agent under this Agreement orany other Loan Document;

 

(e)                                  unless also signedby the Required Domestic Lenders, no amendment, waiver or consent shall (i) amendor waive any mandatory prepayment on Domestic Revolving Loans under Section 2.05(b)(i) orthe manner of application thereof to the Domestic Revolving Loans or (ii) amendthe definition of “Required Lenders”; and

 

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(f)                                    unless alsosigned by the Required Euro Lenders, no amendment, waiver or consent shall (i) amendor waive any mandatory prepayment on Euro Revolving Loans under Section 2.05(b)(ii) orthe manner of application thereof to the Euro Revolving Loans or (ii) amendthe definition of “Required Lenders”;

 

provided, however,that notwithstanding anything to the contrary herein, (i) the Fee Lettermay be amended, or rights or privileges thereunder waived, in a writingexecuted only by the parties thereto, (ii) no Defaulting Lender shall haveany right to approve or disapprove any amendment, waiver or consent hereunder,except that the Commitment of such Lender may not be increased or extendedwithout the consent of such Lender, (iii) each Lender is entitled to voteas such Lender sees fit on any bankruptcy reorganization plan that affects theLoans, and each Lender acknowledges that the provisions of Section 1126(c) ofthe Bankruptcy Code of the United States supersedes the unanimous consentprovisions set forth herein and (iv) the Required Lenders shall determinewhether or not to allow a Loan Party to use cash collateral in the context of abankruptcy or insolvency proceeding and such determination shall be binding onall of the Lenders.

 

11.02                     Notices andOther Communications; Facsimile Copies.

 

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

 

(i)                                     if to theBorrower or any other Loan Party, the Administrative Agent, the L/C Issuer orthe Swing Line Lender, to the address, telecopier number, electronic mailaddress or telephone number specified for such Person on Schedule 11.02;and

 

(ii)                                  if to any otherLender, to the address, telecopier number, electronic mail address or telephonenumber specified in its Administrative Questionnaire.

 

Noticessent by hand or overnight courier service, or mailed by certified or registeredmail, shall be deemed to have been given when received; notices sent bytelecopier shall be deemed to have been given when sent (except that, if notgiven during normal business hours for the recipient, shall be deemed to havebeen given at the opening of business on the next business day for therecipient).  Notices delivered throughelectronic communications to the extent provided in subsection (b) below,shall be effective as provided in such subsection (b).

 

(b)                                 Electronic Communications.  Notices and other communications to theLenders and the L/C Issuer hereunder may be delivered or furnished byelectronic communication (including e-mail and Internet or intranet websites)pursuant to procedures approved by the Administrative Agent, providedthat the foregoing shall not apply to notices to any Lender or the L/C Issuerpursuant to Article II if such Lender or the L/C Issuer, asapplicable, has notified the Administrative Agent that it is incapable ofreceiving notices under such Article by electronic communication.  The Administrative Agent or the Borrower may,in its discretion, agree to accept notices and other communications to ithereunder by electronic communications pursuant to procedures approved by it, providedthat approval of such procedures may be limited to particular notices orcommunications.

 

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

 

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

 

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

 

(e)                                  Reliance by AdministrativeAgent, L/C Issuer and Lenders.** **The Administrative Agent, the L/CIssuer and the Lenders shall be entitled to rely and act upon any notices(including telephonic Loan Notices and Swing Line Loan Notices) purportedlygiven by or on behalf of any Loan Party even if (i) such notices were notmade in a manner specified herein, were incomplete or were not preceded orfollowed by any other form of notice specified herein, or (ii) the termsthereof, as understood by the 

 

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recipient,varied from any confirmation thereof. The Loan Parties shall indemnify the Administrative Agent, the L/CIssuer, each Lender and the Related Parties of each of them from all losses,costs, expenses and liabilities resulting from the reliance by such Person oneach notice purportedly given by or on behalf of a Loan Party.  All telephonic notices to and other telephoniccommunications with the Administrative Agent may be recorded by theAdministrative Agent, and each of the parties hereto hereby consents to suchrecording.

 

11.03                     No Waiver;Cumulative Remedies.

 

Nofailure by any Lender, the L/C Issuer or the Administrative Agent to exercise,and no delay by any such Person in exercising, any right, remedy, power orprivilege hereunder shall operate as a waiver thereof; nor shall any single orpartial exercise of any right, remedy, power or privilege hereunder precludeany other or further exercise thereof or the exercise of any other right,remedy, power or privilege.  The rights,remedies, powers and privileges herein provided are cumulative and notexclusive of any rights, remedies, powers and privileges provided by law.

 

11.04                     Expenses;Indemnity; and Damage Waiver.

 

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

 

(b)                                 Indemnification by the LoanParties.  The Loan Parties shallindemnify the Administrative Agent (and any sub-agent thereof), each Lender andthe L/C Issuer, and each Related Party of any of the foregoing Persons (eachsuch Person being called an “Indemnitee”) against, and hold eachIndemnitee harmless from, any and all losses, claims, damages, liabilities andrelated expenses (including the fees, charges and disbursements of any counselfor any Indemnitee), and shall indemnify and hold harmless each Indemnitee fromall fees and time charges and disbursements for attorneys who may be employeesof any Indemnitee, incurred by any Indemnitee or asserted against anyIndemnitee by any third party or by the Borrower or any other Loan Partyarising out of, in connection with, or as a result of (i) the execution ordelivery of this Agreement, any other Loan Document or any agreement orinstrument contemplated hereby or thereby, the performance by the parties heretoof their respective obligations hereunder or thereunder or the consummation ofthe transactions contemplated hereby or thereby, or, in the case of theAdministrative Agent (and any sub-agent thereof) and its Related Parties only,the administration of this Agreement and the other Loan Documents,(ii) any Loan or Letter of Credit or the use or proposed use of theproceeds therefrom (including any refusal by the L/C Issuer to honor a demandfor payment under a Letter of Credit if the documents presented in connectionwith such demand do not strictly comply with the terms of such Letter ofCredit), (iii) any actual or alleged presence 

 

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orrelease of Hazardous Materials on or from any property owned or operated by aLoan Party or any of its Subsidiaries, or any Environmental Liability relatedin any way to a Loan Party or any of its Subsidiaries, or (iv) any actualor prospective claim, litigation, investigation or proceeding relating to anyof the foregoing, whether based on contract, tort or any other theory, whetherbrought by a third party or by the Borrower or any other Loan Party, andregardless of whether any Indemnitee is a party thereto, in all cases, whetheror not caused by or arising, in whole or in part, out of the comparative,contributory or sole negligence of the Indemnitee; provided that suchindemnity shall not, as to any Indemnitee, be available to the extent that suchlosses, claims, damages, liabilities or related expenses (x) are determinedby a court of competent jurisdiction by final and nonappealable judgment tohave resulted from the gross negligence or willful misconduct of suchIndemnitee or (y) result from a claim brought by the Borrower or any otherLoan Party against an Indemnitee for breach in bad faith of such Indemnitee’sobligations hereunder or under any other Loan Document, if the Borrower or suchLoan Party has obtained a final and nonappealable judgment in its favor on suchclaim as determined by a court of competent jurisdiction.

 

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

 

(d)                                 Waiver of ConsequentialDamages, Etc.  To thefullest extent permitted by applicable law, no Loan Party shall assert, andeach Loan Party hereby waives, any claim against any Indemnitee, on any theoryof liability, for special, indirect, consequential or punitive damages (asopposed to direct or actual damages) arising out of, in connection with, or asa result of, this Agreement, any other Loan Document or any agreement orinstrument contemplated hereby, the transactions contemplated hereby orthereby, any Loan or Letter of Credit or the use of the proceeds thereof.  No Indemnitee referred to in subsection (b) aboveshall be liable for any damages arising from the use by unintended recipientsof any information or other materials distributed by it throughtelecommunications, electronic or other information transmission systems inconnection with this Agreement or the other Loan Documents or the transactionscontemplated hereby or thereby.

 

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

 

(f)                                    Survival.  The agreements in this Section shallsurvive the resignation of the Administrative Agent and the L/C Issuer, thereplacement of any Lender, the termination of the Commitments and therepayment, satisfaction or discharge of all the other Obligations.

 

11.05                     Payments SetAside.

 

Tothe extent that any payment by or on behalf of any Loan Party is made to theAdministrative Agent, the L/C Issuer or any Lender, or the AdministrativeAgent, the L/C Issuer or any Lender exercises its right of setoff, and suchpayment or the proceeds of such setoff or any part thereof is subsequentlyinvalidated, declared to be fraudulent or preferential, set aside or required(including pursuant to any 

 

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settlemententered into by the Administrative Agent, the L/C Issuer or such Lender in itsdiscretion) to be repaid to a trustee, receiver or any other party, inconnection with any proceeding under any Debtor Relief Law or otherwise, then (a) tothe extent of such recovery, the obligation or part thereof originally intendedto be satisfied shall be revived and continued in full force and effect as ifsuch payment had not been made or such setoff had not occurred, and (b) eachLender and the L/C Issuer severally agrees to pay to the Administrative Agentupon demand its applicable share (without duplication) of any amount sorecovered from or repaid by the Administrative Agent, plus interestthereon from the date of such demand to the date such payment is made at a rateper annum equal to the Federal Funds Rate from time to time in effect.  The obligations of the Lenders and the L/CIssuer under clause (b) of the preceding sentence shall survive thepayment in full of the Obligations and the termination of this Agreement.

 

11.06                     Successors andAssigns.

 

(a)                                  Successors and AssignsGenerally.  Theprovisions of this Agreement and the other Loan Documents shall be binding uponand inure to the benefit of the parties hereto and thereto and their respectivesuccessors and assigns permitted hereby, except that the Borrower may notassign or otherwise transfer any of its rights or obligations hereunder orthereunder without the prior written consent of the Administrative Agent andeach Lender and no Lender may assign or otherwise transfer any of its rights orobligations hereunder except (i) to an assignee in accordance with theprovisions of subsection (b) of this Section, (ii) by way ofparticipation in accordance with the provisions of subsection (d) of this Section or(iii) by way of pledge or assignment of a security interest subject to therestrictions of subsection (f) of this Section (and any otherattempted assignment or transfer by any party hereto shall be null andvoid).  Nothing in this Agreement,expressed or implied, shall be construed to confer upon any Person (other thanthe parties hereto, their respective successors and assigns permitted hereby,Participants to the extent provided in subsection (d) of this Section and,to the extent expressly contemplated hereby, the Related Parties of each of theAdministrative Agent, the L/C Issuer and the Lenders) any legal or equitableright, remedy or claim under or by reason of this Agreement.

 

(b)                                 Assignments by Lenders.  Any Lender may at any time assign to one ormore assignees all or a portion of its rights and obligations under thisAgreement and the other Loan Documents (including all or a portion of itsCommitment and the Loans (including for purposes of this subsection (b),participations in L/C Obligations and Swing Line Loans) at the time owing toit), and shall be pro rata with respect to its Domestic Revolving Commitmentand Euro Revolving Commitment; provided that any such assignment shallbe subject to the following conditions:

 

(i)                                     Minimum Amounts.

 

(A)                              in the case ofan assignment of the entire remaining amount of the assigning Lender’sCommitment and the Loans at the time owing to it or in the case of anassignment to a Lender, an Affiliate of a Lender or an Approved Fund, nominimum amount need be assigned; and

 

(B)                                in any case notdescribed in subsection (b)(i)(A) of this Section, the aggregate amount ofthe Commitment (which for this purpose includes Loans outstanding thereunder)or, if the Commitment is not then in effect, the principal outstanding balanceof the Loans of the assigning Lender subject to each such assignment, determinedas of the date the Assignment and Assumption with respect to such assignment isdelivered to the Administrative Agent or, if “Trade Date” is specified in theAssignment and Assumption, as of the Trade Date, shall not be less than$5,000,000****unless each of the AdministrativeAgent and, so long as no Event of Default has occurred and is continuing, theBorrower otherwise consents (each such consent not to be unreasonably withheldor 

 

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delayed); provided, however, that concurrent assignmentsto members of an Assignee Group and concurrent assignments from members of anAssignee Group to a single assignee (or to an assignee and members of itsAssignee Group) will be treated as a single assignment for purposes ofdetermining whether such minimum amount has been met;

 

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

 

(A)                              the consent ofthe Borrower (such consent not to be unreasonably withheld or delayed) shall berequired unless (1) an Event of Default has occurred and is continuing atthe time of such assignment or (2) such assignment is to a Lender, anAffiliate of a Lender or an Approved Fund;

 

(B)                                the consent ofthe Administrative Agent (such consent not to be unreasonably withheld ordelayed) shall be required for assignments if such assignment is to a Personthat is not a Lender, an Affiliate of such Lender or an Approved Fund withrespect to such Lender;

 

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

 

(D)                               the consent ofthe Swing Line Lender (such consent not to unreasonably withheld or delayed)shall be required for any assignment in respect of the Revolving Commitment ifsuch assignment is to a Person that is not a Lender, an Affiliate of suchLender or an Approved Fund with respect to such Lender.

 

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

 

(iv)                              No Assignmentto Borrower.  No suchassignment shall be made to the Borrower or any of the Borrower’s Affiliates orSubsidiaries.

 

(v)                                 No Assignmentto Natural Persons.  No suchassignment shall be made to a natural person.

 

Subject to acceptance and recording thereof by the Administrative Agentpursuant to subsection (c) of this Section, from and after the effectivedate specified in each Assignment and Assumption, the assignee thereunder shallbe a party to this Agreement and, to the extent of the interest assigned bysuch Assignment and Assumption, have the rights and obligations of a Lenderunder this Agreement, and the assigning Lender thereunder shall, to the extentof the interest assigned by such Assignment and Assumption, be released fromits obligations under this Agreement (and, in the case of an Assignment andAssumption covering all of the assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto) but shallcontinue to be entitled to the benefits of Sections 3.01, 3.04, 3.05and 11.04 with respect to facts and circumstances occurring prior to theeffective date of such assignment.  Uponrequest, the Borrower (at its expense) shall execute and deliver a Note to theassignee 

 

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Lender.  Any assignment ortransfer by a Lender of rights or obligations under this Agreement that doesnot comply with this subsection shall be treated for purposes of this Agreementas a sale by such Lender of a participation in such rights and obligations inaccordance with subsection (d) of this Section.

 

(c)                                  Register.  The Administrative Agent, acting solely forthis purpose as an agent of the Borrower, shall maintain at the AdministrativeAgent’s Office a copy of each Assignment and Assumption delivered to it and aregister for the recordation of the names and addresses of the Lenders, and theCommitments of, and principal amounts of the Loans and L/C Obligations owingto, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall beconclusive, and the Borrower, the Administrative Agent and the Lenders maytreat each Person whose name is recorded in the Register pursuant to the termshereof 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 and anyLender, at any reasonable time and from time to time upon reasonable priornotice.

 

(d)                                 Participations.  Any Lender may at any time, without theconsent of, or notice to, the Borrower or the Administrative Agent, sellparticipations to any Person (other than a natural person or the Borrower orany of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)in all or a portion of such Lender’s rights and/or obligations under thisAgreement (including all or a portion of its Commitment and/or the Loans(including such Lender’s participations in L/C Obligations and/or Swing LineLoans) owing to it); provided that (i) such Lender’s obligationsunder this Agreement shall remain unchanged, (ii) such Lender shall remainsolely responsible to the other parties hereto for the performance of such obligationsand (iii) the Borrower, the Administrative Agent, the other Lenders andthe L/C Issuer shall continue to deal solely and directly with such Lender inconnection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to whicha Lender sells such a participation shall provide that such Lender shall retainthe sole right to enforce this Agreement and to approve any amendment,modification or waiver of any provision of this Agreement; provided thatsuch agreement or instrument may provide that such Lender will not, without theconsent of the Participant, agree to any amendment, waiver or othermodification described in clauses (i) through (vii) of the Section 11.01(a) thataffects such Participant.  Subject tosubsection (e) of this Section, the Borrower agrees that each Participantshall be entitled to the benefits of Sections 3.01, 3.04 and 3.05**to the same extent as if it were a Lender and had acquiredits interest by assignment pursuant to subsection (b) of thisSection.  To the extent permitted by law,each Participant also shall be entitled to the benefits of Section 11.08**as though it were a Lender, provided suchParticipant agrees to be subject to Section 2.13 as though it werea Lender.

 

(e)                                  Limitation on ParticipantRights.  A Participant shall not beentitled to receive any greater payment under Section 3.01 or 3.04**than the applicable Lender would have been entitled toreceive with respect to the participation sold to such Participant, unless thesale of the participation to such Participant is made with the Borrower’s priorwritten consent.  A Participant thatwould be a Foreign Lender if it were a Lender shall not be entitled to thebenefits of Section 3.01 unless the Borrower is notified of the participationsold to such Participant and such Participant agrees, for the benefit of theBorrower, to comply with Section 3.01(e) as though it were aLender.

 

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

 

(g)                                 Electronic Execution ofAssignments.  The words “execution,”“signed,” “signature,” and words of like import in any Assignment andAssumption shall be deemed to include electronic signatures 

 

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orthe keeping of records in electronic form, each of which shall be of the samelegal effect, validity or enforceability as a manually executed signature orthe use of a paper-based recordkeeping system, as the case may be, to theextent and as provided for in any applicable law, including the FederalElectronic Signatures in Global and National Commerce Act, the New York State ElectronicSignatures and Records Act, or any other similar state laws based on theUniform Electronic Transactions Act

 

(h)                                 Resignation as L/C Issuer orSwing Line Lender after Assignment.  Notwithstanding anything to the contrarycontained herein, if at any time Bank of America assigns all of its Commitmentand Loans pursuant to subsection (b) above, Bank of America may, (i) uponthirty days’ notice to the Borrower and the Lenders, resign as L/C Issuerand/or (ii) upon thirty days’ notice to the Borrower, resign as Swing LineLender.  In the event of any suchresignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitledto appoint from among the Lenders a successor L/C Issuer or Swing Line Lenderhereunder; provided, however, that no failure by the Borrower toappoint any such successor shall affect the resignation of Bank of America asL/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, itshall retain all the rights, powers, privileges and duties of the L/C Issuerhereunder with respect to all Letters of Credit outstanding as of the effectivedate of its resignation as L/C Issuer and all L/C Obligations with respectthereto (including the right to require the Lenders to make Base Rate Loans orfund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing LineLender, it shall retain all the rights of the Swing Line Lender provided forhereunder with respect to Swing Line Loans made by it and outstanding as of theeffective date of such resignation, including the right to require the Lendersto make Base Rate Loans or fund risk participations in outstanding Swing LineLoans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,(1) such successor shall succeed to and become vested with all of therights, powers, privileges and duties of the retiring L/C Issuer or Swing LineLender, as the case may be and (2) the successor L/C Issuer shall issueletters of credit in substitution for the Letters of Credit, if any,outstanding at the time of such succession or make other arrangementssatisfactory to Bank of America to effectively assume the obligations of Bankof America with respect to such Letters of Credit.

 

11.07                     Treatment ofCertain Information; Confidentiality.

 

Eachof the Administrative Agent, the Lenders and the L/C Issuer agrees to maintainthe confidentiality of the Information (as defined below), except thatInformation may be disclosed (a) to its Affiliates and to its and itsAffiliates’ respective partners, directors, officers, employees, agents,advisors and representatives and to anydirect or indirect contractual counterparty (or such contractual counterparty’sprofessional advisor) under any Swap Contract relating to Loans outstandingunder this Agreement (it being understood that the Persons to whom suchdisclosure is made will be informed of the confidential nature of suchInformation and instructed to keep such Information confidential), (b) tothe extent requested by any regulatory authority purporting to havejurisdiction over it (including any self-regulatory authority, such as theNational Association of Insurance Commissioners), (c) to the extentrequired by applicable laws or regulations or by any subpoena or similar legalprocess, (d) to any other party hereto, (e) in connection with theexercise of any remedies hereunder or under any other Loan Document or anyaction or proceeding relating to this Agreement or any other Loan Document orthe enforcement of rights hereunder or thereunder, (f) subject to anagreement containing provisions substantially the same as those of thisSection, to (i) any assignee of or Participant in, or any prospectiveassignee of or Participant in, any of its rights or obligations under thisAgreement or (ii) any actual or prospective counterparty (or its advisors)to any swap or derivative transaction relating to a Loan Party and itsobligations, (g) with the consent of the Borrower or (h) to theextent such Information (x) becomes publicly available other than as aresult of a breach of this Section or (y) becomes available to theAdministrative Agent, any Lender, the L/C Issuer or any of their respectiveAffiliates on a nonconfidential basis from a source other than the Borrower.

 

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Forpurposes of this Section, “Information” means all information receivedfrom a Loan Party or any Subsidiary relating to the Loan Parties or anySubsidiary or any of their respective businesses, other than any suchinformation that is available to the Administrative Agent, any Lender or theL/C Issuer on a nonconfidential basis prior to disclosure by such Loan Party orany Subsidiary, provided that, in the case of information received froma Loan Party or any Subsidiary after the date hereof, such information isclearly identified at the time of delivery as confidential.  Any Person required to maintain theconfidentiality of Information as provided in this Section shall be consideredto have complied with its obligation to do so if such Person has exercised thesame degree of care to maintain the confidentiality of such Information as suchPerson would accord to its own confidential information.

 

Eachof the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) theInformation may include material non-public information concerning the Borroweror a Subsidiary, as the case may be, (b) it has developed complianceprocedures regarding the use of material non-public information and (c) itwill handle such material non-public information in accordance with applicableLaw, including United States Federal and state securities Laws.

 

11.08                     Set-off.

 

Ifan Event of Default shall have occurred and be continuing, each Lender, the L/CIssuer and each of their respective Affiliates is hereby authorized at any timeand from time to time, after obtaining the prior written consent of theAdministrative Agent, to the fullest extent permitted by applicable law, to setoff and apply any and all deposits (general or special, time or demand,provisional or final, in whatever currency) at any time held and otherobligations (in whatever currency) at any time owing by such Lender, the L/CIssuer or any such Affiliate to or for the credit or the account of theBorrower or any other Loan Party against any and all of the obligations of theBorrower or such Loan Party now or hereafter existing under this Agreement orany other Loan Document to such Lender or the L/C Issuer, irrespective of whetheror not such Lender or the L/C Issuer shall have made any demand under thisAgreement or any other Loan Document and although such obligations of theBorrower or such Loan Party may be contingent or unmatured or are owed to abranch or office of such Lender or the L/C Issuer different from the branch oroffice holding such deposit or obligated on such indebtedness.  The rights of each Lender, the L/C Issuer andtheir respective Affiliates under this Section are in addition to otherrights and remedies (including other rights of setoff) that such Lender, theL/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees tonotify the Borrower and the Administrative Agent promptly after any such setoffand application, provided that the failure to give such notice shall notaffect the validity of such setoff and application.

 

11.09                     Interest RateLimitation.

 

Notwithstandinganything to the contrary contained in any Loan Document, the interest paid oragreed to be paid under the Loan Documents shall not exceed the maximum rate ofnon-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lendershall receive interest in an amount that exceeds the Maximum Rate, the excessinterest shall be applied to the principal of the Loans or, if it exceeds suchunpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or receivedby the Administrative Agent or a Lender exceeds the Maximum Rate, such Personmay, to the extent permitted by applicable Law, (a) characterize anypayment that is not principal as an expense, fee, or premium rather thaninterest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,prorate, allocate, and spread in equal or unequal parts the total amount ofinterest throughout the contemplated term of the Obligations hereunder.

 

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11.10                     Counterparts;Integration; Effectiveness.

 

ThisAgreement may be executed in counterparts (and by different parties hereto indifferent counterparts), each of which shall constitute an original, but all ofwhich when taken together shall constitute a single contract.  This Agreement and the other Loan Documentsconstitute the entire contract among the parties relating to the subject matterhereof and supersede any and all previous agreements and understandings, oralor written, relating to the subject matter hereof.  Except as provided in Section 5.01,this Agreement shall become effective when it shall have been executed by theAdministrative Agent and when the Administrative Agent shall have receivedcounterparts hereof that, when taken together, bear the signatures of each ofthe other parties hereto.  Delivery of anexecuted counterpart of a signature page of this Agreement by telecopyshall be effective as delivery of a manually executed counterpart of thisAgreement.

 

11.11                     Survival ofRepresentations and Warranties.

 

Allrepresentations and warranties made hereunder and in any other Loan Document orother document delivered pursuant hereto or thereto or in connection herewithor therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have beenor will be relied upon by the Administrative Agent and each Lender, regardlessof any investigation made by the Administrative Agent or any Lender or on theirbehalf and notwithstanding that the Administrative Agent or any Lender may havehad notice or knowledge of any Default at the time of any Credit Extension, andshall continue in full force and effect as long as any Loan or any otherObligation hereunder shall remain unpaid or unsatisfied or any Letter of Creditshall remain outstanding.

 

11.12                     Severability.

 

Ifany provision of this Agreement or the other Loan Documents is held to beillegal, invalid or unenforceable, (a) the legality, validity andenforceability of the remaining provisions of this Agreement and the other LoanDocuments shall not be affected or impaired thereby and (b) the partiesshall endeavor in good faith negotiations to replace the illegal, invalid orunenforceable provisions with valid provisions the economic effect of whichcomes as close as possible to that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a particularjurisdiction shall not invalidate or render unenforceable such provision in anyother jurisdiction.

 

11.13                     Replacement ofLenders.

 

If(i) any Lender requests compensation under Section 3.04, (ii) theBorrower is required to pay any additional amount to any Lender or anyGovernmental Authority for the account of any Lender pursuant to Section 3.01,or (iii) a Lender (a “Non-Consenting Lender”) does not consent to aproposed change, waiver, discharge or termination with respect to any LoanDocument that has been approved by the Required Lenders, the Required DomesticLenders or the Required Euro Lenders, as appropriate, as provided in Section 11.01but requires unanimous consent of all Lenders or all Lenders directly affectedthereby (as applicable) and, or (iv) any Lender is a Defaulting Lender,then the Borrower may, at its sole expense and effort, upon notice to suchLender and the Administrative Agent, require such Lender to assign anddelegate, without recourse (in accordance with and subject to the restrictionscontained in, and consents required by, Section 11.06), all of itsinterests, rights and obligations under this Agreement and the related LoanDocuments to an assignee that shall assume such obligations (which assignee maybe another Lender, if a Lender accepts such assignment), provided that:

 

(a)                                  the Borrower shall have paidto the Administrative Agent the assignment fee specified in Section 11.06(b);

 

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(b)                                 such Lender shall havereceived payment of an amount equal to the outstanding principal of its Loansand, with respect to Domestic Lenders, L/C Advances, accrued interest thereon,accrued fees and all other amounts payable to it hereunder and under the otherLoan Documents (including any amounts under Section 3.05) from theassignee (to the extent of such outstanding principal and accrued interest andfees) or the Borrower (in the case of all other amounts);

 

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

 

(d)                                 such assignment does notconflict with applicable Laws**;**and

 

(e)                                  in the case ofany such assignment resulting from a Non-Consenting Lender’s failure to consentto a proposed change, waiver, discharge or termination with respect to any LoanDocument, the applicable replacement bank, financial institution or Fundconsents to the proposed change, waiver, discharge or termination; providedthat the failure by such Non-Consenting Lender to execute and deliver anAssignment and Assumption shall not impair the validity of the removal of suchNon-Consenting Lender and the mandatory assignment of such Non-ConsentingLender’s Commitments and outstanding Loans and, with respect to the DomesticLenders, participations in L/C Obligations and Swing Line Loans pursuant tothis Section 11.13 shall nevertheless be effective without theexecution by such Non-Consenting Lender of an Assignment and Assumption.

 

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

 

11.14                     Governing Law;Jurisdiction; Etc.

 

(a)                                  GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, ANDCONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEWYORK) WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIREAPPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

(b)                                 SUBMISSION TO JURISDICTION.  THE BORROWER AND EACH OTHER LOAN PARTYIRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THENONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEWYORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OFNEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION ORPROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOANDOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THEPARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS INRESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED INSUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, INSUCH FEDERAL COURT.  EACH OF THE PARTIESHERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BECONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THEJUDGMENT OR IN ANY OTHER MANNER 

 

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PROVIDEDBY LAW.  NOTHING IN THIS AGREEMENT OR INANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT,ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION ORPROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THEBORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANYJURISDICTION.

 

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

 

(d)                                 SERVICE OFPROCESS.  EACH PARTY HERETO IRREVOCABLYCONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THERIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BYAPPLICABLE LAW.

 

11.15                     Waiver of Rightto Trial by Jury.

 

EACHPARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BYAPPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGALPROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENTOR 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 NOREPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OFLITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THATIT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENTAND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS ANDCERTIFICATIONS IN THIS SECTION.

 

11.16                     USA PATRIOT ActNotice.

 

EachLender that is subject to the Act (as hereinafter defined) and theAdministrative Agent (for itself and not on behalf of any Lender) herebynotifies the Borrower that pursuant to the requirements of the USA Patriot Act(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),it is required to obtain, verify and record information that identifies theBorrower, which information includes the name and address of the Borrower andother information that will allow such Lender or the Administrative Agent, asapplicable, to identify the Borrower in accordance with the Act.

 

11.17**                    **No Advisory orFiduciary Relationship.

 

Inconnection with all aspects of each transaction contemplated hereby (includingin connection with any amendment, waiver or other modification hereof or of anyother Loan Document, the Borrower

 

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acknowledgesand agrees, and acknowledges itsAffiliates’ understanding, that: (a)(i) the arranging and other servicesregarding this Agreement provided by the Administrative Agent and BAS, are arm’s-lengthcommercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent andBAS, on the other hand, (ii) the Borrowerhas consulted its own legal, accounting, regulatory and tax advisors to theextent it has deemed appropriate, and (iii) theBorrower is capable of evaluating, and understands and accepts, the terms,risks and conditions of the transactions contemplated hereby and by the otherLoan Documents; (b)(i) the Administrative Agent and BAS eachis and has been acting solely as a principal and, except as expressly agreed inwriting by the relevant parties, has not been, is not and will not be acting asan advisor, agent or fiduciary, for the Borrower or any of Affiliates or anyother Person and (ii) neither theAdministrative Agent nor BAS has any obligation to the Borrower or any of itsAffiliates with respect to the transactions contemplated hereby except thoseobligations expressly set forth herein and in the other Loan Documents; and (c) the Administrative Agent and BAS andtheir respective Affiliates may be engaged in a broad range of transactionsthat involve interests that differ from those of the Borrower and itsAffiliates, and neither the Administrative Agent nor BAS has any obligation todisclose any of such interests to the Borrower or its Affiliates.  To the fullest extent permitted by law, theBorrower hereby waives and releases, any claims that it may have against theAdministrative Agent or BAS with respect to any breach or alleged breach ofagency or fiduciary duty in connection with any aspect of any transactioncontemplated hereby.

 

11.18                     Parallel Debt.

 

(a)                                  Each Lender, the Administrative Agent,the Swing Line Lender and the L/C Issuer (collectively, for purposes of this Section 11.18only, the “Finance Parties”) hereby agree that:

 

(i)                                     the total amount due andpayable as Parallel Debt (as created and defined in the Share Pledge Agreement(as defined in Section 11.18(d) below) under Clause 2 of theShare Pledge Agreement (as defined in Section 11.18(d) below)shall be decreased to the extent that any amount is irreversibly(onaantastbaar) paid to and received by the Finance Parties or any of them toreduce the total amount due and payable in respect of the Principal Obligations(as this term is defined in the Share Pledge Agreement (as defined in Section 11.18(d) below)),as if such amount were received by the Administrative Agent in payment of theParallel Debt (as created and defined in the Share Pledge Agreement (as definedin Section 11.18(d) below); and

 

(ii)                                  the total amount due andpayable in respect of the Principal Obligations (as this term is defined in theShare Pledge Agreement (as defined in Section 11.18(d) below))shall be decreased to the extent that any amount is irreversibly(onaantastbaar) paid to and received by the Administrative Agent in payment ofthe Parallel Debt (as created and defined in the Share Pledge Agreement (asdefined in Section 11.18(d) below), as if such amount werereceived by the Finance Parties or any of them in payment of the correspondingPrincipal Obligations (as this term is defined in the Share Pledge Agreement(as defined in Section 11.18(d) below)). The AdministrativeAgent undertakes to give effect to the preceding sentence by application of anyamount so received in payment of the Parallel Debt (as created and defined inthe Share Pledge Agreement (as defined in Section 11.18(d) below)in accordance with the terms and conditions of the Loan Documents, as if suchamount were received in payment of the corresponding Principal Obligations (asthis term is defined in the Share Pledge Agreement (as defined in Section 11.18(d) below)).

 

(b)                                 This Section 11.18and any dispute, controversy, proceedings or claim of whatever nature arisingout of or in any way relating thereto shall be governed by and construed inaccordance with the laws of the Netherlands.

 

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(c)                                  Each of the parties heretoirrevocably agrees that all disputes arising out of this Section 11.18 shall besubmitted in first instance to the competent court at Amsterdam, theNetherlands. Nothing in the preceding sentence shall limit the AdministrativeAgent’s right to bring proceedings against Knoll Overseas, Inc. in anyother court or competent jurisdiction.

 

(d)                                 For the purposes of this Section 11.18only, the term “Share Pledge Agreement” shall mean the notarial deed of pledge ofshares entered into by no later than the date provided in Section 7.12(b) betweenKnoll Overseas, Inc as the pledgor, Bank of America as the pledgee, andKnoll Europe as the company.

 

[SIGNATURE PAGES FOLLOW]

 

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INWITNESS WHEREOF*,*the parties hereto have causedthis Agreement to be duly executed as of the date first above written.

 
| BORROWER:   | KNOLL, INC.,                    |
|-------------|--------------------------------------|
|        | a  Delaware corporation              |
|        |                                 |
|        |                                 |
|        | By:                                  | /s/ Barry L. McCabe |
|        | Name:                                | Barry L. McCabe |
|        | Title:                               | Senior  Vice President & CFO |
|        |                                 |   |
|        |                                 |   |
| GUARANTORS: | SPINNEYBECK  ENTERPRISES, INC., |
|        | a  New York corporation              |
|        |                                 |
|        |                                 |
|        | By:                                  | /s/ Barry L. McCabe |
|        | Name:                                | Barry L. McCabe |
|        | Title:                               | Vice  President |
|        |                                 |   |
|        |                                 |   |
|        | KNOLL  OVERSEAS, INC.,          |
|        | a  Delaware corporation              |
|        |                                 |
|        |                                 |
|        | By:                                  | /s/ Barry L. McCabe |
|        | Name:                                | Barry L. McCabe |
|        | Title:                               | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
| ADMINISTRATIVE |                     |
|----------------|--------------------------|
| AGENT:         | BANK  OF AMERICA, N.A.,  |
|           | as  Administrative Agent |
|           |                     |
|           | By:                      | /s/ Charlene Wright-Jones |
|           | Name:                    | Charlene Wright-Jones |
|           | Title:                   | Assistant  Vice President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
| LENDERS: | BANK  OF AMERICA, N.A.,                                       |
|----------|---------------------------------------------------------------|
|     | as  a Domestic Lender, Euro Lender, Swing Line Lender and L/C |
|     | Issuer                                                        |
|     |                                                          |
|     | By:                                                           | /s/ Charles R. Dickerson |
|     | Name:                                                         | Charles R. Dickerson |
|     | Title:                                                        | Managing  Director |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | CITIZENS  BANK,                         |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Devon Starsk |
|   | Name:                                   | Devon Starsk |
|   | Title:                                  | Senior  Vice President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | HSBC  BANK USA, NATIONAL ASSOCIATION,   |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Susan A. Waters |
|   | Name:                                   | Susan A. Waters |
|   | Title:                                  | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | FIFTH  THIRD BANK,                      |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/   Christopher C. Motley |
|   | Name:                                   | Christopher C. Motley |
|   | Title:                                  | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 

 
|   | TD  BANKNORTH, N.A.,                    |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Charles A. Walker |
|   | Name:                                   | Charles  A. Walker |
|   | Title:                                  | Senior  Vice President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | CITIBANK,  N.A.,                        |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/   Charles J. Margiotti III |
|   | Name:                                   | Charles  J. Margiotti III |
|   | Title:                                  | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | UNION  BANK OF CALIFORNIA, N.A.,        |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Christopher Freeman |
|   | Name:                                   | Christopher  Freeman |
|   | Title:                                  | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | THE  BANK OF NOVA SCOTIA,               |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Brian S. Allen |
|   | Name:                                   | Brian  S. Allen |
|   | Title:                                  | Managing  Director |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | MANUFACTURERS  AND TRADERS TRUST COMPANY, |
|--------|-------------------------------------------|
|   | as  a Domestic Lender and a Euro Lender   |
|   |                                      |
|   | By:                                       | /s/  Brian J. Sohocki |
|   | Name:                                     | Brian  J. Sohocki |
|   | Title:                                    | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | MIZUHO  CORPORATE BANK, LTD.,      |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  James Fayeh |
|   | Name:                                   | James  Fayeh |
|   | Title:                                  | Deputy  General Manager |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | NATIONAL  CITY BANK,                    |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Eleanor Orlando |
|   | Name:                                   | Eleanor  Orlando |
|   | Title:                                  | Corporate  Banking Officer |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | SOVEREIGN  BANK,                        |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Alfred J. Doody |
|   | Name:                                   | Alfred  J. Doody |
|   | Title:                                  | Senior  Vice President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | THE  NORTHERN TRUST COMPANY,            |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Roger McDougal |
|   | Name:                                   | Roger  McDougal |
|   | Title:                                  | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | PNC  BANK, NATIONAL ASSOCIATION,        |
|--------|-----------------------------------------|
|   | as  a Domestic Lender and a Euro Lender |
|   |                                    |
|   | By:                                     | /s/  Meredith Jermann |
|   | Name:                                   | Meredith  Jermann |
|   | Title:                                  | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 

 
|   | BAYERISCHE  LANDESBANK, NEW YORK BRANCH, |
|--------|------------------------------------------|
|   | as  a Domestic Lender                    |
|   |                                     |
|   | By:                                      | /s/  Georgina Fiordalisi, CFA |
|   | Name:                                    | Georgina  Fiordalisi, CFA |
|   | Title:                                   | Vice  President |
|   |                                     |
|   |                                     |
|   | By:                                      | /s/  Annette Schmidt |
|   | Name:                                    | Annette  Schmidt |
|   | Title:                                   | First  Vice President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | FIRST  COMMONWEALTH BANK, |
|--------|---------------------------|
|   | as  a Domestic Lender     |
|   |                      |
|   | By:                       | /s/  Stephen J. Orban |
|   | Name:                     | Stephen  J. Orban |
|   | Title:                    | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | PEOPLE’S  UNITED BANK, |
|--------|-----------------------------|
|   | as  a Domestic Lender       |
|   |                        |
|   | By:                         | /s/  George F Paik |
|   | Name:                       | George  F Paik |
|   | Title:                      | Vice  President |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | UNITED  OVERSEAS BANK LIMITED, |
|--------|--------------------------------|
|   | NEW  YORK AGENCY,              |
|   | as  a Domestic Lender          |
|   |                           |
|   | By:                            | /s/  George Lim |
|   | Name:                          | George  Lim |
|   | Title:                         | SVP &  GM |
|   |                           |
|   | By:                            | /s/  Mario Sheng |
|   | Name:                          | Mario  Sheng |
|   | Title:                         | AVP |

 

**KNOLL, INC.**

**CREDIT AGREEMENT**

 

----

 
|   | WEBSTER  BANK, NATIONAL ASSOCIATION, |
|--------|--------------------------------------|
|   | as  a Domestic Lender                |
|   |                                 |
|   | By:                                  | /s/  John Gilsenan |
|   | Name:                                | John  Gilsenan |
|   | Title:                               | Vice  President |

 

----

 

 

**Schedule 1.01(a)**

** **

**Mandatory Cost Formulae**

** **

**MANDATORY COST FORMULAE**

 

1.                                       The MandatoryCost (to the extent applicable) is an addition to the interest rate tocompensate Lenders for the cost of compliance with:

 

(a)                                  therequirements of the Bank of England and/or the Financial Services Authority(or, in either case, any other authority which replaces all or any of itsfunctions); or

 

(b)                                 therequirements of the European Central Bank.

 

2.                                       On the firstday of each Interest Period (or as soon as possible thereafter) theAdministrative Agent shall calculate, as a percentage rate, a rate (the “AdditionalCost Rate”) for each Lender, in accordance with the paragraphs set outbelow.  The Mandatory Cost will becalculated by the Administrative Agent as a weighted average of the Lenders’Additional Cost Rates (weighted in proportion to the percentage participationof each Lender in the relevant Loan) and will be expressed as a percentage rateper annum.  The Administrative Agentwill, at the request of the Borrower or any Lender, deliver to the Borrower orsuch Lender as the case may be, a statement setting forth the calculation ofany Mandatory Cost.

 

3.                                       The AdditionalCost Rate for any Lender lending from a Lending Office in a ParticipatingMember State will be the percentage notified by that Lender to theAdministrative Agent.  This percentagewill be certified by such Lender in its notice to the Administrative Agent tobe its reasonable determination of the cost (expressed as a percentage of suchLender’s participation in all Loans made from such Lending Office) of complyingwith the minimum reserve requirements of the European Central Bank in respectof Loans made from that Lending Office.

 

4.                                       The AdditionalCost Rate for any Lender lending from a Lending Office in the United Kingdomwill be calculated by the Administrative Agent as follows:

 

(a)                                  in relation toany Loan in Sterling:

 
|   AB+C(B-D)+E  x 0.01

  |   | per  cent per annum |
|-----------------------------------------|--------|---------------------|
|   100  - (A+C)                |   |

 

(b)                                 in relation toany Loan in any currency other than Sterling:

 
| E x 0.01

  |   | per  cent per annum |
|------------------|--------|---------------------|
| 300              |   |

 

Where:

 

----

 

“A”                          is the percentage ofEligible Liabilities (assuming these to be in excess of any stated minimum)which that Lender is from time to time required to maintain as an interest freecash ratio deposit with the Bank of England to comply with cash ratiorequirements.

 

“B”                            is the percentage rate ofinterest (excluding the Applicable Rate, the Mandatory Cost and any interestcharged on overdue amounts pursuant to the first sentence of Section 2.08(b) and,in the case of interest (other than on overdue amounts) charged at the DefaultRate, without counting any increase in interest rate effected by the chargingof the Default Rate) payable for the relevant Interest Period of such Loan.

 

“C”                            is the percentage (if any)of Eligible Liabilities which that Lender is required from time to time tomaintain as interest bearing Special Deposits with the Bank of England.

 

“D”                           is the percentage rate perannum payable by the Bank of England to the Administrative Agent on interestbearing Special Deposits.

 

“E”                             is designed to compensateLenders for amounts payable under the Fees Rules and is calculated by theAdministrative Agent as being the average of the most recent rates of chargesupplied by the Lenders to the Administrative Agent pursuant to paragraph 7below and expressed in pounds per £1,000,000.

 

5.                                       For thepurposes of this Schedule:

 

(a)                                  “Eligible Liabilities”and “Special Deposits” have the meanings given to them from time to timeunder or pursuant to the Bank of England Act 1998 or (as may be appropriate) bythe Bank of England;

 

(b)                                 “Fees Rules” meansthe rules on periodic fees contained in the FSA Supervision Manual or suchother law or regulation as may be in force from time to time in respect of thepayment of fees for the acceptance of deposits;

 

(c)                                  “Fee Tariffs” meansthe fee tariffs specified in the Fees Rules under the activity group A.1Deposit acceptors (ignoring any minimum fee or zero rated fee required pursuantto the Fees Rules but taking into account any applicable discount rate);and

 

(d)                                 “Tariff Base” has themeaning given to it in, and will be calculated in accordance with, the FeesRules.

 

6.                                       In applicationof the above formulae, A, B, C and D will be included in the formulae aspercentages (i.e. 5% will be included in the formula as 5 and not as0.05).  A negative result obtained bysubtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places.

 

7.                                       If requested bythe Administrative Agent or the Borrower, each Lender with a Lending Office inthe United Kingdom or a Participating Member State shall, as soon aspracticable after publication by the Financial Services Authority, supply tothe Administrative Agent and the 

 

----

 

Borrower,the rate of charge payable by such Lender to the Financial Services Authoritypursuant to the Fees Rules in respect of the relevant financial year ofthe Financial Services Authority (calculated for this purpose by such Lender asbeing the average of the Fee Tariffs applicable to such Lender for thatfinancial year) and expressed in pounds per £1,000,000 of the Tariff Base ofsuch Lender.

 

8.                                       Each Lendershall supply any information required by the Administrative Agent for thepurpose of calculating its Additional Cost Rate.  In particular, but without limitation, eachLender shall supply the following information in writing on or prior to thedate on which it becomes a Lender:

 

(a)                                  the jurisdiction of theLending Office out of which it is making available its participation in therelevant Loan; and

 

(b)                                 any other information thatthe Administrative Agent may reasonably require for such purpose.

 

EachLender shall promptly notify the Administrative Agent in writing of any changeto the information provided by it pursuant to this paragraph.

 

9.                                       The percentagesof each Lender for the purpose of A and C above and the rates of charge of eachLender for the purpose of E above shall be determined by the AdministrativeAgent based upon the information supplied to it pursuant to paragraphs 7and 8 above and on the assumption that, unless a Lender notifies theAdministrative Agent to the contrary, each Lender’s obligations in relation tocash ratio deposits and Special Deposits are the same as those of a typicalbank from its jurisdiction of incorporation with a Lending Office in the samejurisdiction as its Lending Office.

 

10.                                 The Administrative Agentshall have no liability to any Person if such determination results in anAdditional Cost Rate which over- or under-compensates any Lender and shall beentitled to assume that the information provided by any Lender pursuant to paragraphs3, 7 and 8 above is true and correct in all respects.

 

11.                                 The Administrative Agentshall distribute the additional amounts received as a result of the MandatoryCost to the Lenders on the basis of the Additional Cost Rate for each Lenderbased on the information provided by each Lender pursuant to paragraphs 3,7 and 8 above.

 

12.                                 Any determination by theAdministrative Agent pursuant to this Schedule in relation to a formula,the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lendershall, in the absence of manifest error, be conclusive and binding on allparties hereto.

 

13.                                 The Administrative Agent mayfrom time to time, after consultation with the Borrower and the Lenders,determine and notify to all parties any amendments which are required to bemade to this Schedule in order to comply with any change in law,regulation or any requirements from time to time imposed by the Bank ofEngland, the Financial Services Authority or the European Central Bank (or, inany case, any other authority which replaces all or any of its functions) andany such determination shall, in the absence of manifest error, be conclusiveand binding on all parties hereto.

 

----

 

**Schedule 1.01(b)**

** **

**Existing Letters of Credit**

 
| **Letter  of  Credit No.** | ** ** | **Issuer**       | ** ** | **Outstanding  Amount** | ** ** | **Date of Issuance** | ** **              | **Expiration Date** | ** **              | **Beneficiary** |
|----------------------------|------------|------------------|------------|-------------------------|------------|----------------------|-------------------------|---------------------|-------------------------|-----------------|
| 68017454                   |       | Bank  of America |       | $                       | 3,350,000  |                 | February 27,  2007 |                | February 28,  2008 |            | The  Travelers Indemnity Company |
| 68014407                   |       | Bank  of America |       | $                       | 187,348.45 |                 | August 21,  2006   |                | August 31,  2007   |            | Bank  of New York |

 

----

 

**Schedule 2.01**

** **

**Commitments and Applicable Percentages**

 
| **Lender**                                    | ** ** | **Domestic  Revolving  Commitment** | ** **         | **Applicable  Percentage** | ** **        | **Euro Revolving  Commitment** | ** ** | **Applicable  Percentage** | ** ** |
|-----------------------------------------------|------------|-------------------------------------|--------------------|----------------------------|-------------------|--------------------------------|------------|----------------------------|------------|
| Bank of America, N.A.                         |       | $                                   | 55,000,000.00      |                       | 11.000000000      | %                              | $          | 20,000,000.00              |       | 13.333333333 | % |
| Citizens Bank                                 |       | $                                   | 50,000,000.00      |                       | 10.000000000      | %                              | $          | 18,500,000.00              |       | 12.333333333 | % |
| HSBC Bank USA, National Association           |       | $                                   | 50,000,000.00      |                       | 10.000000000      | %                              | $          | 18,500,000.00              |       | 12.333333333 | % |
| Fifth Third Bank                              |       | $                                   | 35,000,000.00      |                       | 7.000000000       | %                              | $          | 12,750,000.00              |       | 8.500000000 | % |
| TD Banknorth, N.A.                            |       | $                                   | 35,000,000.00      |                       | 7.000000000       | %                              | $          | 12,750,000.00              |       | 8.500000000 | % |
| Citibank, N.A.                                |       | $                                   | 25,000,000.00      |                       | 5.000000000       | %                              | $          | 10,000,000.00              |       | 6.666666667 | % |
| Union Bank of California, N.A.                |       | $                                   | 25,000,000.00      |                       | 5.000000000       | %                              | $          | 10,000,000.00              |       | 6.666666667 | % |
| The Bank of Nova Scotia                       |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 7,500,000.00               |       | 5.000000000 | % |
| Manufacturers and Traders Trust Company       |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 7,500,000.00               |       | 5.000000000 | % |
| Mizuho Corporate Bank, Ltd.              |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 7,500,000.00               |       | 5.000000000 | % |
| National City Bank                            |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 7,500,000.00               |       | 5.000000000 | % |
| Sovereign Bank                                |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 7,500,000.00               |       | 5.000000000 | % |
| The Northern Trust Company                    |       | $                                   | 15,000,000.00      |                       | 3.000000000       | %                              | $          | 5,000,000.00               |       | 3.333333333 | % |
| PNC Bank, National Association                |       | $                                   | 15,000,000.00      |                       | 3.000000000       | %                              | $          | 5,000,000.00               |       | 3.333333333 | % |
| Bayerische Landesbank, New York Branch        |       | $                                   | 25,000,000.00      |                       | 5.000000000       | %                              | $          | 0.00                       |       | 0.000000000 | % |
| First Commonwealth Bank                       |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 0.00                       |       | 0.000000000 | % |
| People’s United Bank                     |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 0.00                       |       | 0.000000000 | % |
| United Overseas Bank Limited, New York Agency |       | $                                   | 20,000,000.00      |                       | 4.000000000       | %                              | $          | 0.00                       |       | 0.000000000 | % |
| Webster Bank, National Association            |       | $                                   | 10,000,000.00      |                       | 2.000000000       | %                              | $          | 0.00                       |       | 0.000000000 | % |
| **TOTAL**                                     | ** ** | **$**                               | **500,000,000.00** | ** **                 | **100.000000000** | **%**                          | **$**      | **150,000,000.00**         | ** ** | **100.000000000** | **%** |

 

----

** **

**Schedule 6.01**

** **

**Good Standing of Certain Foreign Subsidiaries**

 

ForeignSubsidiaries may from time to time fail to be in good standing but not with anyconsequence that is reasonably likely to have a Material Adverse Effect.

 

 

----

 

**Schedule 6.02**

** **

**Authorizations**

 

None.

 

----

 

**Schedule 6.04**

** **

**Governmental Approvals**

 

None.

 

----

 

**Schedule 6.05(a)**

** **

**Material Liabilities Not Reflected in Balance Sheet**

 

None.

 

----

 

**Schedule 6.07**

** **

**Intellectual Property Rights**

 

U.S. COPYRIGHTS OWNED BY BORROWER

 

RegisteredCopyrights

** **
| **Title**                      | ** ** | **Registration  No.** | ** ** | **Registration  Date** |
|--------------------------------|------------|-----------------------|------------|------------------------|
| JAHNE  BARNES DESING LABYRINTH |       | VAu421664             |       | 5/8/98                 |
| PEANO  JHANE BARNES DESIGN     |       | VAu421663             |       | 5/8/98                 |
| JAHNE  BARNES DESIGN WALKWAY   |       | VAu421662             |       | 5/8/98                 |
| JHANE  BARNES DESIGN HILBERT   |       | VAu421661             |       | 5/8/98                 |

 

PendingCopyright Applications for Registration

 

None.

 

1

----

 

 

PATENTS OWNED BY BORROWER

 

IssuedU.S. Patents

** **
| **Patent  owned by the Borrower - Description**                                  | ** ** | **Patent No.** | ** ** | **Issue Date** |
|----------------------------------------------------------------------------------|------------|----------------|------------|----------------|
| ** **                                                                       | ** ** | ** **     | ** ** | ** **     |
| CHAIR                                                                            |       | D535830        |       | 1/30/07        |
|                                                                             |       |           |       |           |
| CHAIR                                                                            |       | D535112        |       | 1/16/07        |
|                                                                             |       |           |       |           |
| TABLE  BASE                                                                      |       | D528829        |       | 9/26/06        |
|                                                                             |       |           |       |           |
| DESK  LAMP                                                                       |       | D522161        |       | 5/30/06        |
|                                                                             |       |           |       |           |
| CHAIR                                                                            |       | D520769        |       | 5/16/06        |
|                                                                             |       |           |       |           |
| TABLE  BASE                                                                      |       | D515851        |       | 2/28/06        |
|                                                                             |       |           |       |           |
| CART                                                                             |       | D510168        |       | 9/27/05        |
|                                                                             |       |           |       |           |
| HEIGHT  ADJUSTMENT MECHANISM FOR A CHAIR                                         |       | 6824218        |       | 11/30/04       |
|                                                                             |       |           |       |           |
| ERGONOMIC  UTILITY CHART                                                         |       | 6767019        |       | 7/27/04        |
|                                                                             |       |           |       |           |
| CART                                                                             |       | D493019        |       | 7/13/04        |
|                                                                             |       |           |       |           |
| CABLE  CONTROL WITH OVERLAOD PROTECTION DEVICE                                   |       | 6742843        |       | 6/1/04         |
|                                                                             |       |           |       |           |
| KEYBOARD  SUPPORT WITH RETRACTABLE AUXILIARY SUPPORT PLATFORMS                   |       | 6682038        |       | 1/27/04        |
|                                                                             |       |           |       |           |
| MODULAR  BI-FOLD DOOR                                                            |       | 6681532        |       | 1/27/04        |
|                                                                             |       |           |       |           |
| WORKSURFACE                                                                      |       | D479417        |       | 9/9/03         |
|                                                                             |       |           |       |           |
| HINGED  FOR AN OVER-HEAD STORAGE COMPARTMENT HAVING NON-CENTERED PIVOTING MOTION |       | 6574835        |       | 6/10/03        |
|                                                                             |       |           |       |           |
| CHAIR                                                                            |       | D475544        |       | 6/10/03        |
|                                                                             |       |           |       |           |
| MODULAR  STORAGE CABINET                                                         |       | 6550880        |       | 4/22/03        |
|                                                                             |       |           |       |           |
| CHAIR                                                                            |       | D471024        |       | 3/4/03         |
|                                                                             |       |           |       |           |
| METHOD  OF MAKING A METAL DRAWER HEAD                                            |       | 6516507        |       | 2/11/03        |
|                                                                             |       |           |       |           |
| WORKSTATION                                                                      |       | D459109        |       | 6/25/02        |

 

----

 
| **Patent  owned by the Borrower - Description**                                | ** ** | **Patent No.** | ** ** | **Issue Date** |
|--------------------------------------------------------------------------------|------------|----------------|------------|----------------|
| ** **                                                                     | ** ** | ** **     | ** ** | ** **     |
| WORKSTATION  PANEL                                                             |       | D458041        |       | 6/4/02         |
|                                                                           |       |           |       |           |
| OVERHEAD  STROAGE UNIT                                                         |       | 6394564        |       | 5/28/02        |
|                                                                           |       |           |       |           |
| ADJUSTABLE  ARMREST ASSEMBLY WITH SINGLE ADJUSTMENT LEVER                      |       | 6394553        |       | 5/28/02        |
|                                                                           |       |           |       |           |
| ARTICLE OF  FURNITURE INCLUDING A LEG HAVING WIRE MANAGEMENT CAPABILITIES |       | 6389988        |       | 5/21/02        |
|                                                                           |       |           |       |           |
| STACKABLE  PANEL SYSTEM FOR MODULAR OFFICE FURNITURE                           |       | 6389773        |       | 5/21/02        |
|                                                                           |       |           |       |           |
| STORAGE  CABINET                                                               |       | D456178        |       | 4/30/02        |
|                                                                           |       |           |       |           |
| STORAGE  CABINET                                                               |       | D456174        |       | 4/30/02        |
|                                                                           |       |           |       |           |
| STORAGE  CABINET                                                               |       | D456172        |       | 4/30/02        |
|                                                                           |       |           |       |           |
| HYBRID  OFFICE PANEL CONSTRUCTION FOR A MODULAR OFFICE FURNITURE SYSTEM        |       | 6367213        |       | 4/9/02         |
|                                                                           |       |           |       |           |
| CHAIR                                                                          |       | D444638        |       | 7/20/01        |
|                                                                           |       |           |       |           |
| ELECTRICAL  POWER AND COMMUNICATION OUTLET BOX                                 |       | D443592        |       | 6/12/01        |
|                                                                           |       |           |       |           |
| HYBRID  OFFICE PANEL CONSTRUCTION FOR A MODULAR OFFICE FURNITURE SYSTEM        |       | 6167664        |       | 1/2/01         |
|                                                                           |       |           |       |           |
| LOUNGE  CHAIR                                                                  |       | D434233        |       | 11/28/01       |
|                                                                           |       |           |       |           |
| LOUNGE  CHAIR                                                                  |       | D430973        |       | 9/19/00        |
|                                                                           |       |           |       |           |
| INDEPENDENTLY  ADJUSTABLE MOUSE PAD                                            |       | 6086034        |       | 7/11/00        |
|                                                                           |       |           |       |           |
| MULTI-ADJUSTABLE  ARMREST ASSEMBLY                                             |       | 6076892        |       | 6/20/00        |
|                                                                           |       |           |       |           |
| MULTI-ADJUSTABLE  ARMREST ASSEMBLY                                             |       | 6053578        |       | 4/25/00        |
|                                                                           |       |           |       |           |
| CHAIR                                                                          |       | D423241        |       | 4/25/00        |
|                                                                           |       |           |       |           |
| CHAIR                                                                          |       | D422424        |       | 4/11/00        |
|                                                                           |       |           |       |           |
| OFFSET  SUPPORT LEG FOR AN ADJUSTABLE HEIGHT DESK                              |       | 6029587        |       | 2/29/00        |
|                                                                           |       |           |       |           |
| HYBRID  OFFICE PANEL CONSTRUCTION FOR A MODULAR                                |       | 6021613        |       | 2/8/00         |

 

----

 
| **Patent  owned by the Borrower - Description**                                | ** ** | **Patent No.** | ** ** | **Issue Date** |
|--------------------------------------------------------------------------------|------------|----------------|------------|----------------|
| ** **                                                                     | ** ** | ** **     | ** ** | ** **     |
| OFFICE                                                                         |       |           |       |           |
|                                                                           |       |           |       |           |
| TABLE                                                                          |       | D415634        |       | 10/26/99       |
|                                                                           |       |           |       |           |
| SELF-BRAKING  HEIGH ADJUSTMENT MECHANISM                                       |       | 5941182        |       | 8/24/99        |
|                                                                           |       |           |       |           |
| PANEL  FRAME ASSEMBLY                                                          |       | 5921040        |       | 7/13/99        |
|                                                                           |       |           |       |           |
| LAY-IN  WIREWAYS FOR A SPACE DIVIDER SYSTEM                                    |       | 5918433        |       | 7/6/99         |
|                                                                           |       |           |       |           |
| STORAGE  CABINET                                                               |       | D410351        |       | 6/1/99         |
|                                                                           |       |           |       |           |
| OFFICE  SYSTEM COMPRISING LINABLE DESK AND STORAGE UNITS                       |       | 5906420        |       | 5/25/99        |
|                                                                           |       |           |       |           |
| HARDWIRING  RACE FOR OFFICE PARTITIONS                                         |       | 5901512        |       | 5/11/99        |
|                                                                           |       |           |       |           |
| CHAIR                                                                          |       | D408646        |       | 4/27/99        |
|                                                                           |       |           |       |           |
| TELESCOPING  LEVELER                                                           |       | 5881979        |       | 3/16/99        |
|                                                                           |       |           |       |           |
| COFFEE  TABLE                                                                  |       | D406480        |       | 3/9/99         |
|                                                                           |       |           |       |           |
| CHAISE  LOUNGE                                                                 |       | D406473        |       | 3/9/99         |
|                                                                           |       |           |       |           |
| STOOL                                                                          |       | D406470        |       | 3/9/99         |
|                                                                           |       |           |       |           |
| CHAIR                                                                          |       | D406198        |       | 3/2/99         |
|                                                                           |       |           |       |           |
| TRIM  PIECE FOR AN OFFICE FURNITURE SYSTEM                                     |       | D405544        |       | 2/9/99         |
|                                                                           |       |           |       |           |
| CHAIR  ARM REST AND SUPPORT                                                    |       | D398174        |       | 9/15/98        |
|                                                                           |       |           |       |           |
| ADJUSTMET  LUMBAR SUPPORT                                                      |       | 5791733        |       | 8/11/98        |
|                                                                           |       |           |       |           |
| FURNITURE  PULL                                                                |       | D396793        |       | 8/11/98        |
|                                                                           |       |           |       |           |
| CORNICE                                                                        |       | D393319        |       | 4/7/98         |
|                                                                           |       |           |       |           |
| INDEPENDENTLY  ADJUSTABLE MOUSE PAD AND KEYBOARD SUPPPORT APPARATUS            |       | 5730408        |       | 3/24/98        |
|                                                                           |       |           |       |           |
| ARTICLE OF  FURNITURE INCLUDING A LEG HAVING WIRE MANAGEMENT CAPABILITIES |       | 5715761        |       | 2/10/98        |
|                                                                           |       |           |       |           |
| LAY-IN  WIREWAYS FOR A SPACE DIVIDER SYSTEM                                    |       | 5685113        |       | 11/11/97       |

 

----

 
| **Patent  owned by the Borrower - Description**    | ** ** | **Patent No.** | ** ** | **Issue Date** |
|----------------------------------------------------|------------|----------------|------------|----------------|
| ** **                                         | ** ** | ** **     | ** ** | ** **     |
| CHAIR  SEAT TILT ADJUSTMENT AND LOCKING MECHANISM  |       | 5683139        |       | 11/4/97        |
|                                               |       |           |       |           |
| LOCKING  UNIVERSAL SUPPORT ARM                     |       | 5683064        |       | 11/4/97        |
|                                               |       |           |       |           |
| VERTICALLY  ADJUSTABLE TABLE                       |       | 5598789        |       | 2/4/97         |
|                                               |       |           |       |           |
| CALIPER  CONTROL FOR UNIVERSAL SUPPORT ARM         |       | 5584596        |       | 12/17/96       |
|                                               |       |           |       |           |
| LOCKING  UNIVERSAL SUPPORT ARM                     |       | 5564667        |       | 10/15/96       |
|                                               |       |           |       |           |
| LUMBAR  SUPPORT CUSHION FOR CHAIRS                 |       | 5551752        |       | 9/3/96         |
|                                               |       |           |       |           |
| COMPOSITE  FOAM CHAIR CUSHION AND METHOD           |       | 5499413        |       | 3/19/96        |
|                                               |       |           |       |           |
| FOOTREST                                           |       | D367369        |       | 2/27/96        |
|                                               |       |           |       |           |
| TABLE                                              |       | D367192        |       | 2/20/96        |
|                                               |       |           |       |           |
| CHAIR  CUSHION AND UPHOLSTERY ASSEMBLY AND METHOD  |       | 5489145        |       | 2/6/96         |
|                                               |       |           |       |           |
| MOUSEPAD                                           |       | D366654        |       | 1/30/96        |
|                                               |       |           |       |           |
| WRISTREST                                          |       | D366653        |       | 1/30/96        |
|                                               |       |           |       |           |
| CHAIR  BACK SUPPORT ADJUSTMENT MECHANISM           |       | 5476306        |       | 12/19/95       |
|                                               |       |           |       |           |
| LUMBAR  SUPPORT CUSHION                            |       | D364065        |       | 11/14/95       |
|                                               |       |           |       |           |
| CHAIR  SEAT TILTE ADJUSTMENT AND LOCKING MECHANISM |       | 5464274        |       | 11/7/95        |
|                                               |       |           |       |           |
| CHAIR                                              |       | D363823        |       | 11/7/95        |
|                                               |       |           |       |           |
| TABLE                                              |       | D362983        |       | 10/10/95       |
|                                               |       |           |       |           |
| CHAIR  BASE ASSEMBLY                               |       | 5454536        |       | 10/3/95        |
|                                               |       |           |       |           |
| VDT  CORNER UNIT ADAPTER                           |       | D362772        |       | 10/3/95        |
|                                               |       |           |       |           |
| TABLE                                              |       | D361458        |       | 8/22/95        |
|                                               |       |           |       |           |
| TABLE                                              |       | D361457        |       | 8/22/95        |
|                                               |       |           |       |           |
| HANDLE                                             |       | D361255        |       | 8/15/95        |

 

----

 
| **Patent  owned by the Borrower - Description** | ** ** | **Patent No.** | ** ** | **Issue Date** |
|-------------------------------------------------|------------|----------------|------------|----------------|
| ** **                                      | ** ** | ** **     | ** ** | ** **     |
| TABLE                                           |       | D361230        |       | 8/15/95        |
|                                            |       |           |       |           |
| TABLE                                           |       | D361229        |       | 8/15/95        |
|                                            |       |           |       |           |
| TABLE                                           |       | D360549        |       | 7/25/95        |
|                                            |       |           |       |           |
| TABLE                                           |       | D360548        |       | 7/25/95        |
|                                            |       |           |       |           |
| LOUNGE  SEATING                                 |       | D360311        |       | 7/18/95        |
|                                            |       |           |       |           |
| LOUNGE  SEATING                                 |       | D360310        |       | 7/18/95        |
|                                            |       |           |       |           |
| TILT  CONTROL MECHANISM FOR CHAIRS              |       | 5417474        |       | 5/23/95        |
|                                            |       |           |       |           |
| CHAIR  SHELL                                    |       | D358514        |       | 5/23/95        |
|                                            |       |           |       |           |
| SINGLE  PIECE CHAIR SHELL                       |       | 5411316        |       | 5/2/95         |
|                                            |       |           |       |           |
| OVERHEAD  CABINET WITH ROTATING DOOR            |       | 5409308        |       | 4/25/95        |
|                                            |       |           |       |           |
| MOBILE  CADDY                                   |       | D357781        |       | 4/25/95        |
|                                            |       |           |       |           |
| PENCIL  TRAY                                    |       | D356338        |       | 3/14/95        |
|                                            |       |           |       |           |
| TORQUE  CONTROL MECHAISM FOR CHAIRS             |       | 5388889        |       | 2/14/94        |
|                                            |       |           |       |           |
| SEAT                                            |       | D355090        |       | 2/7/95         |
|                                            |       |           |       |           |
| PAD  FOR A CHAIR ARMREST                        |       | D355089        |       | 2/7/95         |
|                                            |       |           |       |           |
| CHAIR                                           |       | D355080        |       | 2/7/95         |
|                                            |       |           |       |           |
| CHAIR                                           |       | D354631        |       | 1/24/95        |
|                                            |       |           |       |           |
| CHAIR                                           |       | D353269        |       | 12/13/94       |
|                                            |       |           |       |           |
| CHAIR  CONTROL                                  |       | 5370445        |       | 12/6/94        |
|                                            |       |           |       |           |
| TABLE                                           |       | D352407        |       | 11/15/94       |
|                                            |       |           |       |           |
| CHAIR                                           |       | D352181        |       | 11/8/94        |
|                                            |       |           |       |           |
| CHAIR                                           |       | D351510        |       | 10/18/94       |
|                                            |       |           |       |           |
| CHAIR                                           |       | D351069        |       | 10/4/94        |
|                                            |       |           |       |           |
| METHOD  FOR FINISHING WOOD SLATTED ARTICLES OF  |       | 5338570        |       | 8/16/94        |

 

----

 
| **Patent  owned by the Borrower - Description**                                   | ** ** | **Patent No.** | ** ** | **Issue Date** |
|-----------------------------------------------------------------------------------|------------|----------------|------------|----------------|
|                                                                              |       |           |       |           |
| FURNITURE                                                                         |       |           |       |           |
|                                                                              |       |           |       |           |
| SELF  BALANCED TABLE LAMP                                                         |       | D348529        |       | 7/5/94         |
|                                                                              |       |           |       |           |
| SEAT  CUSHION                                                                     |       | D346924        |       | 5/17/94        |
|                                                                              |       |           |       |           |
| COFFEE  TABLE                                                                     |       | D346293        |       | 4/26/94        |
|                                                                              |       |           |       |           |
| CHAIR  FASTENING DEVICE                                                           |       | 5297851        |       | 3/29/94        |
|                                                                              |       |           |       |           |
| OTTOMAN                                                                           |       | D344856        |       | 3/8/94         |
|                                                                              |       |           |       |           |
| ADJUSTABLE  HEIGHT TABLE                                                          |       | 5289782        |       | 3/1/94         |
|                                                                              |       |           |       |           |
| CREDENZA                                                                          |       | D344199        |       | 2/15/94        |
|                                                                              |       |           |       |           |
| DINING  CHAIR                                                                     |       | D344191        |       | 2/15/94        |
|                                                                              |       |           |       |           |
| FURNITURE  COMPRISING LAMINATED SLATS AND METHODS OF MANUFACTURING SUCH FURNITURE |       | 5284380        |       | 2/8/94         |
|                                                                              |       |           |       |           |
| DESK                                                                              |       | D343308        |       | 1/18/94        |
|                                                                              |       |           |       |           |
| TABLE  LEG                                                                        |       | D342403        |       | 12/21/93       |
|                                                                              |       |           |       |           |
| ADJUSTABLE  ARM FOR A CHAIR                                                       |       | 5265938        |       | 11/30/93       |
|                                                                              |       |           |       |           |
| CAFÉ  CHAIR                                                                  |       | D341265        |       | 11/16/93       |
|                                                                              |       |           |       |           |
| DIAMOND  CHAIR                                                                    |       | D341264        |       | 11/16/93       |
|                                                                              |       |           |       |           |
| CLUB  CHAIR                                                                       |       | D341263        |       | 11/16/93       |
|                                                                              |       |           |       |           |
| CHAIR                                                                             |       | D341260        |       | 11/16/93       |
|                                                                              |       |           |       |           |
| COMBINED  CREDENZA AND HUTCH                                                      |       | D341042        |       | 11/9/93        |
|                                                                              |       |           |       |           |
| METHOD  FOR CONSTRUCTING AN OFFICE SPACE DIVIDING PANEL                           |       | 5258083        |       | 11/2/93        |
|                                                                              |       |           |       |           |
| STORAGE  CABINET                                                                  |       | D339934        |       | 10/5/93        |
|                                                                              |       |           |       |           |
| CHAIR                                                                             |       | D339927        |       | 10/5/93        |
|                                                                              |       |           |       |           |
| CHAIR                                                                             |       | D339926        |       | 10/5/93        |
|                                                                              |       |           |       |           |
| CHAIR                                                                             |       | D339924        |       | 10/5/93        |

 

----

 
| **Patent  owned by the Borrower - Description**                                     | ** ** | **Patent No.** | ** ** | **Issue Date** |
|-------------------------------------------------------------------------------------|------------|----------------|------------|----------------|
| ** **                                                                          | ** ** | ** **     | ** ** | ** **     |
| TABLE                                                                               |       | D339488        |       | 9/21/93        |
|                                                                                |       |           |       |           |
| TABLE                                                                               |       | D339487        |       | 9/21/93        |
|                                                                                |       |           |       |           |
| TABLE                                                                               |       | D339486        |       | 9/21/93        |
|                                                                                |       |           |       |           |
| DESK                                                                                |       | D339481        |       | 9/21/93        |
|                                                                                |       |           |       |           |
| MARKERBOARD                                                                         |       | D339379        |       | 9/14/93        |
|                                                                                |       |           |       |           |
| CHAIR                                                                               |       | D339244        |       | 9/14/93        |
|                                                                                |       |           |       |           |
| TABLE                                                                               |       | D338789        |       | 8/31/93        |
|                                                                                |       |           |       |           |
| CAFÉ  TABLE                                                                    |       | D338579        |       | 8/24/93        |
|                                                                                |       |           |       |           |
| CHAIR                                                                               |       | D337447        |       | 7/20/93        |
|                                                                                |       |           |       |           |
| FURNITURE  STANCHIONS WITH UNITARY POWER ROUTING SYSTEM                             |       | 5226705        |       | 7/13/93        |
|                                                                                |       |           |       |           |
| CEILING  INFEED MODULE                                                              |       | 5195286        |       | 3/23/93        |
|                                                                                |       |           |       |           |
| OVERHEAD  CABINET WITH ROTATING DOOR                                                |       | 5172969        |       | 12/22/92       |
|                                                                                |       |           |       |           |
| ELECTRIFIED  SPACE DIVIDING PANEL                                                   |       | 5164544        |       | 11/17/92       |
|                                                                                |       |           |       |           |
| FURNITURE  STANCHIONS WITH UNITARY POWER ROUTING SYSTEM                             |       | 5160188        |       | 11/3/92        |
|                                                                                |       |           |       |           |
| FRAME  BASED OFFICE SPACE DIVIDING SYSTEM                                           |       | 5155955        |       | 10/20/92       |
|                                                                                |       |           |       |           |
| FURNITURE  COMPRISING LAMINATE SLATS AND METHOD OF MANUFACTURING SUCH FURNITURE     |       | 5154486        |       | 10/13/92       |
|                                                                                |       |           |       |           |
| PROJECTILE  RESISTING SPACE DIVIDING SYSTEM                                         |       | 5142997        |       | 9/1/92         |
|                                                                                |       |           |       |           |
| FILE  HOLDERS AND BRIEFCASE THEREFOR                                                |       | 5088801        |       | 2/18/92        |
|                                                                                |       |           |       |           |
| PANEL  FOR AN OFFICE SPACE DIVIDING SYSTEM                                          |       | 5088250        |       | 2/18/92        |
|                                                                                |       |           |       |           |
| SPACE  DIVIDING PARTITION SYSTEM HAVING AN ELECTRICAL RACEWAY                       |       | 5065556        |       | 11/19/91       |
|                                                                                |       |           |       |           |
| ELECTRICAL  OR COMMUNICATIONS MONUMENT FOR MOUNTING ALONG AN EDGE OF A WORK SURFACE |       | 5057039        |       | 10/15/91       |
|                                                                                |       |           |       |           |
| WIRE  MANAGEMENT CLIP                                                               |       | 5040752        |       | 8/20/91        |

 

----

 
| **Patent  owned by the Borrower - Description**        | ** ** | **Patent No.** | ** ** | **Issue Date** |
|--------------------------------------------------------|------------|----------------|------------|----------------|
| ** **                                             | ** ** | ** **     | ** ** | ** **     |
| HEIGHT  ADJUSTMENT MECHANISM FOR CHAIR BACK            |       | 5037158        |       | 8/6/91         |
|                                                   |       |           |       |           |
| CHAIR  TILT AND CHAIR HEIGHT CONTROL APPARATUS         |       | 5029940        |       | 7/9/91         |
|                                                   |       |           |       |           |
| SPACE  DIVIDER SYSTEM                                  |       | 5024030        |       | 6/18/91        |
|                                                   |       |           |       |           |
| ADJUSTABLE  PEDESTAL FOR TABLES AND THE LIKE           |       | 5020752        |       | 6/4/91         |
|                                                   |       |           |       |           |
| ADJUSTABLE  FOOT REST FOR A CHAIR                      |       | 5011227        |       | 4/30/91        |
|                                                   |       |           |       |           |
| POSITION  ADJUSTMENT LEG FOR PARTITION PANEL ASSEMBLY  |       | 5005325        |       | 4/9/91         |
|                                                   |       |           |       |           |
| OPEN  OFFICE SYSTEM PARTITION PANEL ASSEMBLY           |       | 5003740        |       | 4/2/91         |
|                                                   |       |           |       |           |
| OPEN  OFFICE SYSTEM PARTITION PANEL ASSEMBLY           |       | 4996811        |       | 3/5/91         |
|                                                   |       |           |       |           |
| OPEN  OFFICE SYSTEM PARTITION PANEL ASSEMBLY           |       | 4993205        |       | 2/19/91        |
|                                                   |       |           |       |           |
| SPACE-DIVIDING  WALL PANEL                             |       | 4949518        |       | 8/21/90        |
|                                                   |       |           |       |           |
| SLIDE  PLATE ADJUSTMENT MECHANISM                      |       | 4938441        |       | 7/3/90         |
|                                                   |       |           |       |           |
| STORAGE  CABINET                                       |       | D337455        |       | 7/20/03        |
|                                                   |       |           |       |           |
| METHOD  FOR MAKING A PANEL WITH CUTOUTS FORMED THEREIN |       | 5263252        |       | 11/23/93       |
|                                                   |       |           |       |           |
| OFFICE  SPACE DIVIDING ARRANGEMENT                     |       | 4874027        |       | 10/17/89       |
|                                                   |       |           |       |           |
| OFFICE  SPACE DIVIDING SYSTEM                          |       | 4870908        |       | 10/03/89       |

 

PublishedPatents of Borrower

** **
| **Description**                    | ** ** | **Publication No.** | ** ** | **Filing Date** |
|------------------------------------|------------|---------------------|------------|-----------------|
| ** **                         | ** ** | ** **          | ** ** | ** **      |
| OFFICE  CHAIR                      |       | 20060006715         |       | 07/08/05        |
|                               |       |                |       |            |
| MECHANICAL  ARM WITH SPRING ASSIST |       | 20040164213         |       | 02/20/2004      |
|                               |       |                |       |            |
| CHAIR                              |       | 29/288,241          |       | 06/05/07        |

 

----

 

TRADEMARK/TRADE NAMES OWNED BY BORROWER

 

U.S.Trademark Registrations

 

RegisteredMarks Knoll, Inc.

 
| **Mark  — Knoll, Inc.** | ** ** | **Registration No.** | ** ** | **Registration Date** |
|-----------------------------------|------------|----------------------|------------|-----------------------|
| ** **                        | ** ** | ** **           | ** ** | ** **            |
| AUTOSTRADA                        |       | 3021487              |       | 11/29/05              |
|                              |       |                 |       |                  |
| Design  Only                      |       | 2894980              |       | 10/19/04              |
|                              |       |                 |       |                  |
| Design  Only                      |       | 2894979              |       | 10/19/04              |
|                              |       |                 |       |                  |
| Design  Only                      |       | 2894978              |       | 10/19/04              |
|                              |       |                 |       |                  |
| Design  Only                      |       | 2893025              |       | 10/12/04              |
|                              |       |                 |       |                  |
| Design  Only                      |       | 2894977              |       | 10/19/04              |
|                              |       |                 |       |                  |
| KREFELD                           |       | 2949295              |       | 5/10/05               |
|                              |       |                 |       |                  |
| JOE                               |       | 2957768              |       | 5/31/05               |
|                              |       |                 |       |                  |
| CECILIA                           |       | 2960132              |       | 6/7/05                |
|                              |       |                 |       |                  |
| DIVINA                            |       | 2807283              |       | 1/20/04               |
|                              |       |                 |       |                  |
| A3                                |       | 2744625              |       | 7/29/03               |
|                              |       |                 |       |                  |
| VISOR                             |       | 2660606              |       | 12/10/02              |
|                              |       |                 |       |                  |
| GIGI                              |       | 2647032              |       | 11/5/02               |
|                              |       |                 |       |                  |
| UPSTART                           |       | 2537287              |       | 2/5/02                |
|                              |       |                 |       |                  |
| RPM                               |       | 2483718              |       | 8/28/01               |
|                              |       |                 |       |                  |
| PAPERCLIP                         |       | 2415886              |       | 12/26/00              |
|                              |       |                 |       |                  |
| FOG                               |       | 2394237              |       | 10/10/00              |
|                              |       |                 |       |                  |
| CURRENTS                          |       | 2237475              |       | 4/6/99                |
|                              |       |                 |       |                  |
| REFF                              |       | 2352223              |       | 5/23/00               |
|                              |       |                 |       |                  |
| DIVIDENDS                         |       | 2272597              |       | 8/24/99               |

 

----

 
| **Mark  — Knoll, Inc.** | ** ** | **Registration No.** | ** ** | **Registration Date** |
|-----------------------------------|------------|----------------------|------------|-----------------------|
| ** **                        | ** ** | ** **           | ** ** | ** **            |
| DISCUS                            |       | 2124373              |       | 12/23/97              |
|                              |       |                 |       |                  |
| JR                                |       | 2064087              |       | 5/20/97               |
|                              |       |                 |       |                  |
| BACKPACK                          |       | 2111132              |       | 11/4/97               |
|                              |       |                 |       |                  |
| COUNTERFORCE                      |       | 2019756              |       | 11/26/96              |
|                              |       |                 |       |                  |
| GOOD  DESIGN IS GOOD BUSINESS     |       | 1978933              |       | 6/4/96                |
|                              |       |                 |       |                  |
| SALSA                             |       | 1996058              |       | 8/20/96               |
|                              |       |                 |       |                  |
| KNOLL  EXTRA                      |       | 1923595              |       | 10/3/95               |
|                              |       |                 |       |                  |
| KNOLL  EXTRA                      |       | 1886080              |       | 3/28/95               |
|                              |       |                 |       |                  |
| KNOLL  EXTRA                      |       | 1889928              |       | 4/18/95               |
|                              |       |                 |       |                  |
| KNOLL  EXTRA                      |       | 1925118              |       | 10/10/95              |
|                              |       |                 |       |                  |
| PROPELLER                         |       | 2065353              |       | 5/27/97               |
|                              |       |                 |       |                  |
| KNOLL                             |       | 1897530              |       | 6/6/95                |
|                              |       |                 |       |                  |
| SAGUARO  CACTUS                   |       | 1931985              |       | 10/31/95              |
|                              |       |                 |       |                  |
| TOOTHPICK  CACTUS                 |       | 1931984              |       | 10/31/95              |
|                              |       |                 |       |                  |
| PARACHUTE                         |       | 1905003              |       | 7/11/95               |
|                              |       |                 |       |                  |
| SURF                              |       | 1931967              |       | 10/31/95              |
|                              |       |                 |       |                  |
| KNOLL  STUDIO                     |       | 1821382              |       | 2/15/94               |
|                              |       |                 |       |                  |
| MAGNUSSON  UPTOWN                 |       | 1893630              |       | 5/9/95                |
|                              |       |                 |       |                  |
| MAGNUSSON  MIDTOWN                |       | 1887928              |       | 4/4/95                |
|                              |       |                 |       |                  |
| MAGNUSSON  DOWNTOWN               |       | 1893629              |       | 5/9/95                |
|                              |       |                 |       |                  |
| LITTLE  DIPPER                    |       | 1926360              |       | 10/10/95              |
|                              |       |                 |       |                  |
| BIG  DIPPER                       |       | 1926359              |       | 10/10/95              |
|                              |       |                 |       |                  |
| EQUITY                            |       | 1763700              |       | 4/6/93                |
|                              |       |                 |       |                  |
| CALIBRE                           |       | 1737652              |       | 12/1/92               |
|                              |       |                 |       |                  |
| ORCHESTRA                         |       | 1773588              |       | 5/25/93               |

 

----

 
| **Mark  — Knoll, Inc.** | ** ** | **Registration No.** | ** ** | **Registration Date** |
|-----------------------------------|------------|----------------------|------------|-----------------------|
| ** **                        | ** ** | ** **           | ** ** | ** **            |
| BULLDOG                           |       | 1655890              |       | 9/3/91                |
|                              |       |                 |       |                  |
| KNOLL                             |       | 1449734              |       | 7/28/87               |
|                              |       |                 |       |                  |
| VOLANTE                           |       | 1414255              |       | 10/21/86              |
|                              |       |                 |       |                  |
| DUO-SYNCRO                        |       | 842430               |       | 1/16/68               |
|                              |       |                 |       |                  |
| BARCELONA                         |       | 772313               |       | 6/30/64               |
|                              |       |                 |       |                  |
| KNOLL  INTERNATIONAL              |       | 557893               |       | 4/22/52               |
|                              |       |                 |       |                  |
| KNOLL                             |       | 557891               |       | 4/22/52               |
|                              |       |                 |       |                  |
| KNOLL  EXTRA                      |       | 1930829              |       | 10/31/95              |

 

**PendingApplications**

 
| **Mark**   | ** ** | **Application No.** | ** ** | **Filing Date** |
|------------|------------|---------------------|------------|-----------------|
| ** ** | ** ** | ** **          | ** ** | ** **      |
| WATERMARK  |       | 78856613            |       | 4/7/06          |
|       |       |                |       |            |
| K.         |       | 78856607            |       | 4/7/06          |
|       |       |                |       |            |
| LIFE       |       | 76404036            |       | 5/7/02          |

 

RegisteredMarks Spinneybeck Enterprises, Inc.

 
| **Mark – Spinneybeck Enterprises,  Inc.** | ** ** | **Registration No.** | ** ** | **Registration Date** |
|------------------------------------------------|------------|----------------------|------------|-----------------------|
|                                           |       |                 |       |                  |
| LEATHERWEAVE                                   |       | 1436944              |       | 4/14/87               |
|                                           |       |                 |       |                  |
| SABRINA                                        |       | 1404945              |       | 8/12/86               |
|                                           |       |                 |       |                  |
| SPINNEYBECK                                    |       | 1446426              |       | 7/7/87                |

 

----

** **

**Schedule 6.08**

 

**Subsidiaries**

 
| **SUBSIDIARIES  OF THE BORROWER**     | ** ** | **JURISDICTION OF  INCORPORATION** | ** ** | **OWNERSHIP  INTEREST**                                        |
|---------------------------------------|------------|------------------------------------|------------|----------------------------------------------------------------|
| ** **                            | ** ** | ** **                         | ** ** | ** **                                                     |
| Knoll  North America Corp.            |       | Ontario,  Canada                   |       | Wholly  owned subsidiary of Knoll, Inc.                   |
|                                  |       |                               |       |                                                           |
| Spinneybeck  Enterprises, Inc.   |       | New  York                          |       | Wholly  owned subsidiary of Knoll, Inc.                   |
|                                  |       |                               |       |                                                           |
| Spinneybeck, LTD.                |       | Ontario,  Canada                   |       | Wholly  owned subsidiary of Spinneybeck Enterprises, Inc. |
|                                  |       |                               |       |                                                           |
| Spinneybeck  Ireland                  |       | Ireland                            |       | Wholly  owned subsidiary of Spinneybeck Enterprises, Inc. |
|                                  |       |                               |       |                                                           |
| Knoll  Overseas, Inc.            |       | Delaware                           |       | Wholly  owned subsidiary of Knoll, Inc.                   |
|                                  |       |                               |       |                                                           |
| Knoll  Europe B.V.                    |       | Netherlands                        |       | Wholly  owned subsidiary of Knoll Overseas, Inc.          |
|                                  |       |                               |       |                                                           |
| Knoll  Italy, Ltd.               |       | England &  Wales          |       | Wholly  owned subsidiary of Knoll Europe B.V.                  |
|                                  |       |                               |       |                                                           |
| Knoll  International S.p.A            |       | Italy                              |       | Wholly  owned subsidiary of Knoll Europe B.V.                  |
|                                  |       |                               |       |                                                           |
| Knoll  International, Ltd.       |       | England &  Wales          |       | Wholly  owned subsidiary of Knoll Europe B.V.                  |
|                                  |       |                               |       |                                                           |
| Knoll  International S.A.             |       | France                             |       | Wholly  owned subsidiary of Knoll Europe B.V.                  |
|                                  |       |                               |       |                                                           |
| Knoll  International Deutschland GmBH |       | Germany                            |       | Wholly  owned subsidiary of Knoll Europe B.V.                  |
|                                  |       |                               |       |                                                           |
| Knoll  International Belgium S.A.     |       | Belgium                            |       | Wholly  owned subsidiary of Knoll Europe B.V.                  |

 

**Loan Parties**

 
| **NAME**                            | ** ** | **JURISDICTION OF  INCORPORATION** | ** ** | **CHIEF EXECUTIVE OFFICE**                                   | ** ** | **ID NUMBERS**                        |
|-------------------------------------|------------|------------------------------------|------------|--------------------------------------------------------------|------------|---------------------------------------|
| ** **                          | ** ** | ** **                         | ** ** | ** **                                                   | ** ** | ** **                            |
| Knoll, Inc.                    |       | Delaware                           |       | 1235  Water Street, East Greenville, PA 18041                |       | Tax  ID # 13-3873847  Org ID #2571976 |
|                                |       |                               |       |                                                         |       |                                  |
| Spinneybeck  Enterprises, Inc. |       | New  York                          |       | 425 CrossPoint Parkway, Suite 100,  Getzville, NY 14068 |       | Tax  ID #16-1159029                   |
|                                |       |                               |       |                                                         |       |                                  |
| Knoll  Overseas, Inc.          |       | Delaware                           |       | 1235  Water Street, East Greenville, PA 18041                |       | Tax  ID # 25-1648603  Org ID #0445727 |

 

----

 

**Schedule 6.17**

 

**Environmental Reports**

 

None.

 

----

 

**Schedule 6.18**

 

**Insurance**

 
| **Coverage**                                                         | ** ** | **Policy #**                                           | ** ** | **Policy Term**   | ** ** | **Insurer**                                            | ** ** | **Deductibles/Limits**                                                                                                                                                                                                                                                                    |
|----------------------------------------------------------------------|------------|--------------------------------------------------------|------------|-------------------|------------|--------------------------------------------------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                 |       |                                                   |       |              |       |                                                   |       |                                                                                                                                                                                                                                                                                      |
| General  Liability

 

rated  based on estimated $766mm Sales   |       | TC2J-GLSA-487K0398-  04-TIL-07

(U.S.)                 |       | 4/1/07  to 4/1/08 |       | Travelers  Property & Casualty Co. of America |       | $100,000  deductible each occ.

$1,000,000  each occ. $10,000,000 gen. aggregate $2,000,000 prod./co.op. agg.                                                                                                                                                                             |
|                                                                 |       |                                                   |       |              |       |                                                   |       |                                                                                                                                                                                                                                                                                      |
| Canadian  General Liability                                          |       | TC2-SCPP-23I D7411-07

(Canada)                        |       | 4/1/07  to 4/1/08 |       | St.  Paul Fire & Marine Insurance Co.         |       | Same  as above                                                                                                                                                                                                                                                                            |
|                                                                 |       |                                                   |       |              |       |                                                   |       |                                                                                                                                                                                                                                                                                      |
| Business  Automobile                                                 |       | TJ-CAP-487K0386-TIL-

07 (U.S.) 8 vehicles             |       | 4/1/07  to 4/1/08 |       | Travelers  Property & Casualty Co. of America |       | $1,000,000  CSL (Bodily Injury/Property Damage)

$1,000,000  UM/UIM                                                                                                                                                                                                                       |
|                                                                 |       |                                                   |       |              |       |                                                   |       |                                                                                                                                                                                                                                                                                      |
| Canadian  Auto                                                       |       | T-CAC-234D1054-07

05 (Canada) – No owned vehicle |       | 4/1/07  to 4/1/08 |       | St.  Paul Fire & Marine Insurance Co.         |       | $1,000,000  CSL (Bodily Injury/Property Damage)                                                                                                                                                                                                                                           |
|                                                                 |       |                                                   |       |              |       |                                                   |       |                                                                                                                                                                                                                                                                                      |
| Workers  Compensation

(All  States Except AZ, WI, OR & MA) |       | TC2N-UB-751G950-6-07                                   |       | 4/1/07  to 4/1/08 |       | Travelers  Property & Casualty Co. of America |       | $250,000  deducible each occ.

Coverage  A: Statutory Benefits

 

Coverage  B: Employers Liability

$1,000,000  bodily injury by accident – each accident

$1,000,000  bodily injury by disease – each employee

$1,000,000  bodily injury by disease – policy limit |
|                                                                 |       |                                                   |       |              |       |                                                   |       |                                                                                                                                                                                                                                                                                      |
| Workers  Compensation

(AZ,  OR, WI, MA)                             |       | TRJ-UB-751G951-8-07                                    |       | 4/1/07  to 4/1/08 |       | Travelers  Property & Casualty Co. of America |       | $250,000  deducible each occ.

Coverage  A: Statutory Benefits

 

Coverage  B: Employers Liability

$1,000,000  bodily injury by accident – each accident

$1,000,000  bodily injury by disease – each employee

$1,000,000  bodily injury by disease – policy limit |
|                                                                 |       |                                                   |       |              |       |                                                   |       |                                                                                                                                                                                                                                                                                      |
| Umbrella  Liability

($25  Million)                                  |       | QK06400661                                             |       | 4/1/07  to 4/1/08 |       | St  Paul Fire & Marine                        |       | $10,000  self-insured retention

$25,000,000  each occurrence                                                                                                                                                                                                                             |

 

----

 
| **Coverage**                                                                 | ** ** | **Policy #**     | ** ** | **Policy Term**       | ** ** | **Insurer**                                   | ** ** | **Deductibles/Limits**                                                                                                                                                                                                                                                                                                                                    |
|------------------------------------------------------------------------------|------------|------------------|------------|-----------------------|------------|-----------------------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
|                                                                         |       |             |       |                  |       |                                          |       | $25,000,000  general aggregate

$25,000,000  products/completed operations aggregate                                                                                                                                                                                                                                                                      |
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
| 1st  Layer Excess Liability

($25  Million xs scheduled underlying policies) |       | 9363-03-54       |       | 4/1/07  to 4/1/08     |       | Federal  Insurance Company

(Chubb)           |       | $25,000,000  each occurrence

$25,000,000  general aggregate

$25,000,000  products/completed                                                                                                                                                                                                                                                             |
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
| 2nd  Layer Excess Liability

($50  Million xs scheduled underlying policies) |       | SHX  00089038178 |       | 4/l/07  to 4/1/08     |       | American  Insurance Co. (Fireman’s Fund) |       | $50,000,000  each occurrence

$50,000,000  general aggregate

$50,000,000  products/completed                                                                                                                                                                                                                                                             |
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
| Director’s &  Officer’s Liability                         |       | EC09000149       |       | 12/14/06  to 12/14/07 |       | St.  Paul                                     |       | Deductible  varies between $0 and $500,000

$10,000,000  each wrongful act/agg. Incl. Defense                                                                                                                                                                                                                                                             |
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
| Excess  Director’s & Officer’s Liability                  |       | 3032224          |       | 12/14/06  to 12/14/07 |       | Darwin                                        |       | $5,000,000  xs $10,000,000 Aggregate Incl. defense                                                                                                                                                                                                                                                                                                        |
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
| Excess  Director’s & Officer’s Liability                  |       | DOC9685075-00    |       | 12/14/06  to 12/14/07 |       | Zurich                                        |       | $5,000,000  xs $15,000,000 Aggregate Incl. defense                                                                                                                                                                                                                                                                                                        |
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
| Excess  Director’s & Officer’s Liability                  |       | ELU095568-06     |       | 12/14/06  to 12/14/07 |       | XL                                            |       | $5,000,000  xs $20,000,000 Aggregate Incl. defense                                                                                                                                                                                                                                                                                                        |
|                                                                         |       |             |       |                  |       |                                          |       |                                                                                                                                                                                                                                                                                                                                                      |
| Crime                                                                        |       | 6804-3241        |       | 12/14/06  to 12/14/07 |       | Federal  Insurance Company (Chubb)            |       | $1,000,000  deductible per occurrence

$10,000,000

(Employee  Dishonesty)

$10,000,000

(Forgery  or Alteration)

$10,000,000

(Theft,  Disappearance and Destruction)

$10,000.000

(Funds  Transfer Fraud/Computer Theft)

$10,000,000

(Money  Order and Counterfeit Fraud)

$10,000,000

(Employee  Dishonesty Against Client)

Included  ERISA Bond |

 

----

 
| **Coverage**                                                                                                                                                              | ** ** | **Policy #** | ** ** | **Policy Term**       | ** ** | **Insurer**                        | ** ** | **Deductibles/Limits**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              |
|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------|------------|-----------------------|------------|------------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                                                                                                                                                      |       |         |       |                  |       |                               |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
|                                                                                                                                                                      |       |         |       |                  |       |                               |       | $1,000,000

(Credit  Cards)

$250,000

(Investigative  Expenses)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
|                                                                                                                                                                      |       |         |       |                  |       |                               |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
| Fiduciary  Liability                                                                                                                                                      |       | 6804-3241    |       | 12/14/06  to 12/14/07 |       | Federal  Insurance Company (Chubb) |       | $50,000  deductible per loss

$10,000,000  Aggregate

$100,000  Voluntary Compliance Sublimit                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       |
|                                                                                                                                                                      |       |         |       |                  |       |                               |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
| Special  Accident Kidnap, Ransom & Extortion                                                                                                                     |       | 6802-4651    |       | 12/14/06  to 12/14/07 |       | Federal  Insurance Co. (Chubb)     |       | $5,000,000  K&R/Extortion

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
|                                                                                                                                                                      |       |         |       |                  |       |                               |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
| Property  Worldwide Program (local Euro policy issued in Italy and Billed in Italy)  (Difference & Conditions / Difference in Limits - outside of Italy)

  |       | PPR-5919363  |       | 4/1/07  to 4/1/08     |       | Zurich  American Insurance Co.     |       | $400,000,000  Loss Limit subject to Location Limits

All  Real and Personal Property, including Boiler and Machinery, BI. Extra  Expense, etc.

$100,000,000  Machinery Breakdown

$25,000,000  Extra Expense

$10,000,000  Contingent Business Interruption

$10,000,000/120  days newly acquired property

$2,500,000  Misc. Premises

$100,000,000  Earth Movement

$5,000,000  Earth Movement for Italy

$100,000,000  Named Storm

$25,000,000  Named Storm (wind zones 1 and 2)

$50,000,000  Flood

$5,000,000  locations within 100 year floodplain

$10,000,000  locations outside 100 year floodplain and within 500 year floodplain |
|                                                                                                                                                                      |       |         |       |                  |       |                               |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
| Property  - Italy                                                                                                                                                         |       |         |       | 4/1/07  to 4/1/08     |       | Zurich  American Insurance Co.     |       | Included  in Blanket limit

All  Real and Personal

Property,  including Boiler and Machinery, BI, Extra Expense, etc.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
|                                                                                                                                                                      |       |         |       |                  |       |                               |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                |
| Property  - Canada                                                                                                                                                        |       |         |       | 4/1/07  to 4/1/08     |       | Zurich  American                   |       | Included  In Blanket limit

All  Real and Personal                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  |

 

----

 
| **Coverage**                        | ** ** | **Policy #** | ** ** | **Policy Term**   | ** ** | **Insurer**                     | ** ** | **Deductibles/Limits**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
|-------------------------------------|------------|--------------|------------|-------------------|------------|---------------------------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                |       |         |       |              |       |                            |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
|                                |       |         |       |              |       | Insurance  Co.                  |       | Property,  including Boiler and Machinery, BI, Extra Expense, etc.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
|                                |       |         |       |              |       |                            |       |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
| Foreign  Excess and DIC

(Casualty) |       | GB02901665   |       | 4/1/07  to 4/1/08 |       | St  Paul Fire & Marine |       | 1)  General Liability

$2,000,000  each occurrence

$2,000,000  General Aggregate

$1,000,000  products / completed operation aggregate

$1,000,000  Personal and Advertising Liability

$1,000,000  Premises Damage

$10,000  Medical Expense Per Person

$1,000,000  Employee Benefits Aggregate

 

2)  Auto Liability

$1,000,000  CSL

$10,000  Medical Payments

$25,000  Medical Payments – each accident

 

3)  Foreign Voluntary

Workers  Compensation WC and EL Benefits - State of Hire

$1,000,000  BI Each Accident

$1,000,000  BI by Disease

$1,000,000  BI Policy Limit

$250,000  Repatriation Expense each employee/ $250,000 aggregate |

 

----

 

**Schedule 6.19(a)**

 

**Filing Offices**

 
| Knoll, Inc.                                |   | The  Secretary of State of the State of Delaware |
|-------------------------------------------------|--------|--------------------------------------------------|
|                                            |   |                                             |
| Knoll  Overseas, Inc.                      |   | The  Secretary of State of the State of Delaware |
|                                            |   |                                             |
| Spinneybeck Enterprises. Inc.                   |   | The  Secretary of State of the State of New York |
|                                            |   |                                             |
| This schedule does not include fixture filings. |

 

----

 

**Schedule 6.19(c)**

 

**Mortgage Filing Offices**

 
| Knoll, Inc. |   | Kent  County Register of Deeds       |
|------------------|--------|--------------------------------------|
|             |   | 300  Monroe Avenue, NW               |
|             |   | Grand  Rapids, Michigan 49503        |
|             |   |                                 |
|             |   | Muskegon  County Register of Deeds   |
|             |   | 990  Terrace Street                  |
|             |   | County  Building                     |
|             |   | Muskegon,  MI 49442                  |
|             |   |                                 |
|             |   | Montgomery  County Recorder of Deeds |
|             |   | One  Montgomery Plaza                |
|             |   | Suite 303                       |
|             |   | Swede  and Airy Streets              |
|             |   | Norristown,  PA 19404                |

 

----

 

**Schedule 6.20(a)**

 

**Owned Property**

 
| Knoll, Inc. |   | 4300  36th St., S.E., Kentwood,  County of Kent, Michigan                                          |
|------------------|--------|---------------------------------------------------------------------------------------------------------|
| Knoll, Inc. |   | 2800  Estes St., Norton Shores,  County of Muskegon,  Michigan (plus adjacent parcel  acquired in 2001) |
| Knoll, Inc. |   | 329  Railroad Street, Borough  of East Greenville, County of  Montgomery, Pennsylvania                  |
| Knoll, Inc. |   | 1235  Water Street, Borough of  East Greenville, County of  Montgomery, Pennsylvania                    |

 

----

 

**Schedule 6.20(b)**

 

**Leased Property**

 
| Knoll, Inc.  manufacturing plant | 921  W. Western Avenue |
|---------------------------------------|------------------------|
|                                  | Muskegon,  MI          |

 

Inaddition, Borrower and its Subsidiaries lease showroom, office and warehousespace, none of which individually is material to the Borrower.

 

----

 

**Schedule 8.01**

 

**Existing Indebtedness**

 
| **Lender**                   | ** ** | **Type of Indebtedness and  Description** | ** ** | **Outstanding Amount (or, if  line of credit, maximum  amount of the line of credit)** | ** **   |
|------------------------------|------------|-------------------------------------------|------------|----------------------------------------------------------------------------------------|--------------|
| Bank of Italy                |       | Knoll  International S.p.A                |       | €                                                                                 | 478,000.00   |   |
| Banca  Nazionale Del Lavoro  |       | Knoll  International S.p.A                |       | €                                                                                 | 1,650,000.00 |   |
| Banca  Intesa                |       | Knoll  International S.p.A                |       | €                                                                                 | 1,000,000.00 |   |
| Banca Di Roma                |       | Knoll  International S.p.A                |       | €                                                                                 | 1,225,000.00 |   |
| Unicredit  Banca             |       | Knoll  International S.p.A                |       | €                                                                                 | 850,000.00   |   |
| Societe  Generale            |       | Knoll  International S.A.                 |       | €                                                                                 | 304,000.00   |   |
| Natexis  Banques  Populaires |       | Knoll  International S.A.                 |       | €                                                                                 | 1,525,000.00 |   |
| National Westminster         |       | Knoll  International Ltd.                 |       | €                                                                                 | 200,000.00   |   |

 

----

 

**Schedule 8.02**

 

**Existing Liens**

 

None

 

----

 

**Schedule 8.04**

 

**Existing Investments**

 

None.

 

----

 

**Schedule 11.02**

 

**Certain Addresses for Notices**

 

1.  Address for Loan Parties:

 

*Borrower:*

 
| Knoll, Inc.          |
|---------------------------|
| 1235 Water Street         |
| East Greenville, PA 18041 |
| Attention:                | Barry  L. Mc Cabe |
| Cc:                       | Michael  Pollner |
| Telephone:                | (215)  679-1301 |
| Facsimile:                | (215)  679-1013 |
| E-mail:                   | bmccabe@knoll.com |
| Website:                  | www.knoll.com |

 

*Withcopies to*:

 
| Willkie Farr & Gallagher LLP |
|---------------------------------------|
| 787 Seventh Avenue                    |
| New York, NY 10019                    |
| Attention:                            | William  Hiller |
| Telephone:                            | (212)  728 8228 |
| Facsimile:                            | (212)  728 9228 |
| E-mail:                               | whiller@willkie.com |

 

2.  Addresses for Administrative Agent, SwingLine Lender and L/C Issuer:

 

*Agent’s Office**:*

*(for**payments and requests)*

 
| Bank of America, N.A.               |
|-------------------------------------|
| One Independence Center             |
| 101 N. Tryon Street                 |
| Mail  Code:                         | NC1-001-04-39 |
| Charlotte, North Carolina 28255-001 |
| Attention:                          | Robert  Lloyd |
| Telephone:                          | 704-387-3615 |
| Facsimile:                          | 704-719-8311 |

 

*Wiringinstructions:*

 
| Bank of America, N.A.     |
|---------------------------|
| Charlotte, North Carolina |
| ABA  #:                   | 026009593 |
| Acct  #:                  | 136-621-225-0600 |
| Attention:                | Robert  Lloyd |
| Ref:                      | Knoll, Inc. |

 

----

 
| *Other  Notices to Administrative Agent**:* |
|---------------------------------------------|
|                                        |
| Bank of America, N.A.                       |
| 231 S. LaSalle Street                       |
| Mail Code:                                  | IL1-231-10-41 |
| Chicago, Illinois 60697                |
| Attention:                                  | Charlene  Wright-Jones |
| Telephone:                                  | 312-828-3935 |
| Facsimile:                                  | 877-206-8427 |
| E-mail:                                     | charlene.wright-jones@bankofamerica.com |
|                                        |   |
| *For Notices as L/C Issuer**:*              |
|                                        |   |
| Bank of America, N.A.                       |
| 1 Fleet Way                                 |
| Mail Code:                                  | PA6-580-02-30 |
| Scranton, Pennsylvania 18507                |
| Attention:                                  | Alfonso  Malave Jr. |
| Telephone:                                  | 570-330-4212 |
| Facsimile:                                  | 570-330-4186 |
| E-mail:                                     | afonso.malave@bankofamerica.com |
|                                        |   |
| *For Notices as Swing Line  Lender*:        |
| *(daily borrowing/repaying  activity)*      |
|                                        |   |
| Bank of America, N.A.                       |
| One Independence Center                     |
| 101 N. Tryon Street                         |
| Mail Code:                                  | NC1-001-04-39 |
| Charlotte, North Carolina 28255-001         |
| Attention:                                  | Robert  Lloyd |
| Telephone:                                  | 704-387-3615 |
| Facsimile:                                  | 704-719-8311 |
|                                        |   |
| *Wiring instructions:*                      |
|                                        |   |
| Bank of America, N.A.                       |
| Charlotte, North Carolina                   |
| ABA #:                                      | 026009593 |
| Acct #:                                     | 136-621-225-0600 |
| Attention:                                  | Robert  Lloyd |
| Ref:                                        | Knoll, Inc. |

 

----

 

**Exhibit 2.02**

 

**FORM OF LOAN NOTICE**

 

Date:                     ,20

 

To:                             Bank ofAmerica, N.A., as Administrative Agent

 

Re:                               Credit Agreement dated as ofJune 29, 2007 (as amended, modified, supplemented or extended from time totime, the “Credit Agreement”) among Knoll, Inc., a Delawarecorporation (the “Borrower”), the Guarantors from time to time partythereto, the Lenders from time to time party thereto and Bank of America, N.A.,as Administrative Agent, Swing Line Lender and L/C Issuer.  Capitalized terms used but not otherwisedefined herein have the meanings provided in the Credit Agreement.

 

Ladiesand Gentlemen:

 

1.            Theundersigned hereby requests (select one):

 

o  A Borrowing of Domestic Revolving Loans

 

o  A Borrowing of Euro Revolving Loans

 

o  A conversion or continuation of DomesticRevolving Loans

 

2.            On                              ,20       (which is a Business Day).

 

3.            Amountand Currency of Borrowing                                              .

 

4.            Typeof Loan requested:

 

o Base RateLoans(1)                         o EurocurrencyRate Loans

 

5.            Withan Interest Period of (for Eurodollar Rate Loans):

 
| o One Month | o Two Month   | o Three Month   |
|-------------|---------------|-----------------|
| o Six Month | o Nine Month* | o Twelve Month* |

 

TheBorrower hereby represents and warrants that (a) after giving effect toany Borrowing of Domestic Revolving Loans, (i) the Total DomesticRevolving Outstandings shall not exceed the Aggregate Domestic RevolvingCommitments, (ii) the Total Revolving Outstandings shall not exceed theMaximum Permitted Revolving Outstandings, and (iii) the aggregateOutstanding Amount of the Domestic Revolving Loans of any Domestic Lender, plussuch Domestic Lender’s Applicable Percentage of the Outstanding Amount of allDomestic L/C Obligations plus such Domestic Lender’s ApplicablePercentage of the Outstanding Amount of all Swing Line Loans shall not exceedsuch Domestic Lender’s Domestic Revolving Commitment, (b) after givingeffect to any Borrowing of Euro Revolving Loans, (i) the Total EuroRevolving Outstandings shall not exceed the Aggregate Euro RevolvingCommitments,

 

----

(1) Only available for Domestic Revolving Loans.

*      Only available if consented to by all ofthe Lenders.

*      Only available if consented to by all ofthe Lenders.

 

----

 

(ii) theTotal Revolving Outstandings shall not exceed the Maximum Permitted RevolvingOutstandings and (iii) the aggregate Outstanding Amount of the EuroRevolving Loans of any Euro Lender shall not exceed such Euro Lender’s EuroRevolving Commitment (c) each of the conditions set forth in Section 5.02of the Credit Agreement has been satisfied on and as of the date of suchBorrowing, conversion or continuation.

 
|   | KNOLL, INC.,       |
|--------|-------------------------|
|   | a  Delaware corporation |
|   |                    |
|   | By:                     |   |
|   | Name:                   |   |
|   | Title:                  |   |
|        |                         |  |  |

 

----

 

**Exhibit 2.04**

 

**FORM OF SWING LINE LOAN NOTICE**

 

Date:                    ,20

 

To:          Bank of America, N.A., as Swing LineLender

 

Cc:          Bank of America, N.A., asAdministrative Agent

 

Re:                               Credit Agreement dated as ofJune 29, 2007 (as amended, modified, supplemented or extended from time totime, the “Credit Agreement”) among Knoll, Inc., a Delawarecorporation (the “Borrower”), the Guarantors from time to time partythereto, the Lenders from time to time party thereto and Bank of America, N.A.,as Administrative Agent, Swing Line Lender and L/C Issuer.  Capitalized terms used but not otherwisedefined herein have the meanings provided in the Credit Agreement.

 

Ladiesand Gentlemen:

 

1.             Theundersigned hereby requests a Swing Line Loan.

 

2.             On           , 20     (aBusiness Day).

 

3.             Inthe amount of$                    .

 

Withrespect to such Borrowing of Swing Line Loans, the Borrower hereby representsand warrants that (a) after giving effect to such Borrowing of Swing LineLoans, (i) the Total Revolving Outstandings shall not exceed the MaximumPermitted Revolving Outstandings, and (ii) the aggregate OutstandingAmount of the Domestic Revolving Loans of any Domestic Lender, plus suchDomestic Lender’s Applicable Percentage of the Outstanding Amount of allDomestic L/C Obligations, plus such Domestic Lender’s ApplicablePercentage of the Outstanding Amount of all Swing Line Loans shall not exceedsuch Domestic Lender’s Domestic Revolving Commitment and (b) each of theconditions set forth in Section 5.02 of the Credit Agreement hasbeen satisfied on and as of the date of such Borrowing of Swing Line Loans.

 
|   | KNOLL, INC.,       |
|--------|-------------------------|
|   | a  Delaware corporation |
|   |                    |
|   | By:                     |   |
|   | Name:                   |
|   | Title:                  |

 

----

 

**EXHIBIT 2.11(a)(i)**

 

**FORM OF DOMESTIC REVOLVING NOTE**

 

FORVALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to payto                                          or registered assigns (the “Domestic Lender”), in accordance with theprovisions of the Credit Agreement (as hereinafter defined), the principalamount of each Domestic Revolving Loan from time to time made by the DomesticLender to the Borrower under that certain Credit Agreement dated as of June 29,2007 (as amended, modified, supplemented or extended from time to time, the “CreditAgreement”) among the Borrower, the Guarantors from time to time partythereto, the Lenders from time to time party thereto and Bank of America, N.A.,as Administrative Agent, Swing Line Lender and L/C Issuer.  Capitalized terms used but not otherwisedefined herein have the meanings provided in the Credit Agreement.

 

TheBorrower promises to pay interest on the unpaid principal amount of eachDomestic Revolving Loan from the date of such Domestic Revolving Loan untilsuch principal amount is paid in full, at such interest rates and at such timesas provided in the Credit Agreement.  Allpayments of principal and interest shall be made to the Administrative Agentfor the account of the Domestic Lender in Dollars in immediately availablefunds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amountshall bear interest, to be paid upon demand, from the due date thereof untilthe date of actual payment (and before as well as after judgment) computed atthe per annum rate set forth in the Credit Agreement.

 

ThisDomestic Revolving Note is one of the Domestic Revolving Notes referred to inthe Credit Agreement, is entitled to the benefits thereof and may be prepaid inwhole or in part subject to the terms and conditions provided therein.  Upon the occurrence and continuation of oneor more of the Events of Default specified in the Credit Agreement, all amountsthen remaining unpaid on this Domestic Revolving Note shall become, or may bedeclared to be, immediately due and payable all as provided in the CreditAgreement.  Domestic Revolving Loans madeby the Domestic Lender shall be evidenced by one or more loan accounts orrecords maintained by the Domestic Lender in the ordinary course of business.The Domestic Lender may also attach schedules to this Domestic Revolving Noteand endorse thereon the date, amount and maturity of its Domestic RevolvingLoans and payments with respect thereto.

 

TheBorrower, for itself, its successors and assigns, hereby waives diligence,presentment, protest and demand and notice of protest, demand, dishonor andnonpayment of this Domestic Revolving Note.

 

THISDOMESTIC REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TOCONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OFANOTHER JURISDICTION.

 
|   | KNOLL, INC.,       |
|--------|-------------------------|
|   | a  Delaware corporation |
|   |                    |
|   | By:                     |   |
|   | Name:                   |
|   | Title:                  |

 

----

 

**EXHIBIT 2.11(a)(ii)**

 

**FORM OF EURO REVOLVING NOTE**

 

FORVALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to payto                                          or registered assigns (the “Euro Lender”), in accordance with theprovisions of the Credit Agreement (as hereinafter defined), the principalamount of each Euro Revolving Loan from time to time made by the Euro Lender tothe Borrower under that certain Credit Agreement dated as of June 29, 2007(as amended, modified, supplemented or extended from time to time, the “CreditAgreement”) among the Borrower, the Guarantors from time to time partythereto, the Lenders from time to time party thereto and Bank of America, N.A.,as Administrative Agent, Swing Line Lender and L/C Issuer.  Capitalized terms used but not otherwisedefined herein have the meanings provided in the Credit Agreement.

 

TheBorrower promises to pay interest on the unpaid principal amount of each EuroRevolving Loan from the date of such Euro Revolving Loan until such principalamount is paid in full, at such interest rates and at such times as provided inthe Credit Agreement.  All payments ofprincipal and interest shall be made to the Administrative Agent for theaccount of the Euro Lender in the Applicable Currency in immediately availablefunds at the Administrative Agent’s Office. If any amount is not paid in full when due hereunder, such unpaid amountshall bear interest, to be paid upon demand, from the due date thereof untilthe date of actual payment (and before as well as after judgment) computed atthe per annum rate set forth in the Credit Agreement.

 

ThisEuro Revolving Note is one of the Euro Revolving Notes referred to in theCredit Agreement, is entitled to the benefits thereof and may be prepaid inwhole or in part subject to the terms and conditions provided therein.  Upon the occurrence and continuation of oneor more of the Events of Default specified in the Credit Agreement, all amountsthen remaining unpaid on this Euro Revolving Note shall become, or may bedeclared to be, immediately due and payable all as provided in the CreditAgreement.  Euro Revolving Loans made bythe Euro Lender shall be evidenced by one or more loan accounts or recordsmaintained by the Euro Lender in the ordinary course of business. The EuroLender may also attach schedules to this Euro Revolving Note and endorsethereon the date, amount and maturity of its Euro Revolving Loans and paymentswith respect thereto.

 

TheBorrower, for itself, its successors and assigns, hereby waives diligence,presentment, protest and demand and notice of protest, demand, dishonor andnonpayment of this Euro Revolving Note.

 

THISEURO REVOLVING NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THELAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TOCONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OFANOTHER JURISDICTION.

 
|   | KNOLL, INC.,       |
|--------|-------------------------|
|   | a  Delaware corporation |
|   |                    |
|   | By:                     |   |
|   | Name:                   |
|   | Title:                  |

 

----

 

**EXHIBIT 2.11(a)(iii)**

 

**FORM OF SWING LINE NOTE**

 

FORVALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to payto BANK OF AMERICA, N.A. or registered assigns (the “Swing Line Lender”),in accordance with the provisions of the Credit Agreement (as hereinafterdefined), the principal amount of each Swing Line Loan from time to time madeby the Swing Line Lender to the Borrower under that certain Credit Agreementdated as of June 29, 2007 (as amended, modified, supplemented or extendedfrom time to time, the “Credit Agreement”) among the Borrower, theGuarantors from time to time party thereto, the Lenders from time to time partythereto and Bank of America, N.A., as Administrative Agent, Swing Line Lenderand L/C Issuer.  Capitalized terms usedbut not otherwise defined herein have the meanings provided in the CreditAgreement.

 

TheBorrower promises to pay interest on the unpaid principal amount of each SwingLine Loan from the date of such Swing Line Loan until such principal amount ispaid in full, at such interest rates and at such times as provided in theCredit Agreement.  All payments ofprincipal and interest shall be made to the Administrative Agent for theaccount of the Swing Line Lender in Dollars in immediately available funds atthe Administrative Agent’s Office.  Ifany amount is not paid in full when due hereunder, such unpaid amount shallbear interest, to be paid upon demand, from the due date thereof until the dateof actual payment (and before as well as after judgment) computed at the perannum rate set forth in the Credit Agreement.

 

ThisSwing Line Note is the Swing Line Note referred to in the Credit Agreement, isentitled to the benefits thereof and may be prepaid in whole or in part subjectto the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events ofDefault specified in the Credit Agreement, all amounts then remaining unpaid onthis Swing Line Note shall become, or may be declared to be, immediately dueand payable all as provided in the Credit Agreement.  Swing Line Loans made by the Swing LineLender shall be evidenced by one or more loan accounts or records maintained bythe Lender in the ordinary course of business. The Swing Line Lender may alsoattach schedules to this Swing Line Note and endorse thereon the date, amountand maturity of its Swing Line Loans and payments with respect thereto.

 

TheBorrower, for itself, its successors and assigns, hereby waives diligence,presentment, protest and demand and notice of protest, demand, dishonor andnonpayment of this Swing Line Note.

 

THISSWING LINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWSOF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TOCONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OFANOTHER JURISDICTION.

 
|   | KNOLL, INC.,       |
|--------|-------------------------|
|   | a  Delaware corporation |
|   |                    |
|   | By:                     |   |
|   | Name:                   |
|   | Title:                  |

 

----

 

**Exhibit 7.04**

 

**FORM OF COMPLIANCE CERTIFICATE**

 

FinancialStatement Date:                    ,20

 

To:          Bank of America, N.A., as AdministrativeAgent

 

Re:                               Credit Agreement dated as ofJune 29, 2007 (as amended, modified, supplemented or extended from time totime, the “Credit Agreement”) among Knoll, Inc., a Delawarecorporation (the “Borrower”), the Guarantors from time to time partythereto, the Lenders from time to time party thereto and Bank of America, N.A.,as Administrative Agent, Swing Line Lender, and L/C Issuer.  Capitalized terms used but not otherwisedefined herein have the meanings provided in the Credit Agreement.

 

Ladiesand Gentlemen:

 

The undersigned Responsible Officer hereby certifies as of the datehereof that [he/she] is the                              of the Borrower, and that, in [his/her] capacity as such, [he/she] isauthorized to execute and deliver this Compliance Certificate to theAdministrative Agent on the behalf of the Borrower, and that:

 

[*Use following paragraph 1 for fiscal year-endfinancial statements*:]

 

[1.            Attached hereto as Schedule 1are the year-end audited financial statements required by Section 7.01(a) ofthe Credit Agreement for the fiscal year of the Borrower ended as of the abovedate, together with the report and opinion of an independent certified publicaccountant required by such section.]

 

[*Use following paragraph 1 for fiscal quarter-endfinancial statements*:]

 

[1.            Attached hereto as Schedule 1are the unaudited financial statements required by Section 7.01(b) ofthe Credit Agreement for the fiscal quarter of the Borrower ended as of theabove date.  Such financial statementsfairly present in all material respects the financial condition, results ofoperations and cash flows of the Borrower and its Subsidiaries in accordancewith GAAP as at such date and for such period, subject only to normal year-endaudit adjustments and the absence of footnotes.]

 

2.             The undersigned has reviewed and isfamiliar with the terms of the Credit Agreement and has made, or has caused tobe made, a detailed review of the transactions and condition (financial orotherwise) of the Borrower during the accounting period covered by the attachedfinancial statements.

 

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

 

[selectone:]

 

[tothe best knowledge of the undersigned during such fiscal period, the Borrowerperformed and observed each covenant and condition of the Loan Documentsapplicable to it, and no Default has occurred and is continuing.]

 

----

 

[or:]

 

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

 

4.             The representations and warranties ofthe Loan Parties contained in the Credit Agreement or any other Loan Document,are true and correct on and as of the date hereof, except to the extent thatsuch representations and warranties specifically refer to an earlier date, inwhich case they are true and correct as of such earlier date, and except thatfor purposes of this Compliance Certificate, the representations and warrantiescontained in subsections (a) and (b) of Section 6.05 ofthe Credit Agreement shall be deemed to refer to the most recent statementsfurnished pursuant to clauses (a) and (b), respectively, of Section 7.01of the Credit Agreement, including the statements in connection with which thisCompliance Certificate is delivered.

 

5.             The financial covenant analyses andcalculation of the Consolidated Interest Coverage Ratio, the Consolidated NetLeverage Ratio and the Consolidated Leverage Ratio set forth on Schedule 2attached hereto are true and accurate on and as of the date of this ComplianceCertificate.

 

IN WITNESS WHEREOF, the undersigned has executed this ComplianceCertificate as of                    ,20      .

 
|   | KNOLL, INC.,       |
|--------|-------------------------|
|   | a  Delaware corporation |
|   |                    |
|   | By:                     |   |
|   | Name:                   |
|   | Title:                  |

 

----

 

Schedule 2

to Compliance Certificate

 
| 1.     | Consolidated  Interest Coverage Ratio |                 |
|--------|---------------------------------------|----------------------|
|   |                                  |                 |
|   | (a)                                   | Consolidated  EBITDA |   |
|   |                                  |                 |
|   |                                  | (i)                  | Consolidated  Net Income | $ |
|   |                                  |                 |   |   |
|   |                                  | (ii)                 | Consolidated  Interest Expense | $ |
|   |                                  |                 |   |   |
|   |                                  | (iii)                | amounts  for taxes based on income, profits or capital and commercial activity payments  to taxing authorities | $ |
|   |                                  |                 |   |   |
|   |                                  | (iv)                 | depreciation  and amortization expense | $ |
|   |                                  |                 |   |   |
|   |                                  | (v)                  | non-recurring  fees, cash charges and other cash expenses | $ |
|   |                                  |                 |   |   |
|   |                                  | (vi)                 | any  extraordinary losses | $ |
|   |                                  |                 |   |   |
|   |                                  | (vii)                | facilities  relocation or closing costs, non-recurring restructuring costs and integration  costs and fees | $ |
|   |                                  |                 |   |   |
|   |                                  | (viii)               | amortization  and impairment charges resulting from purchase accounting adjustments | $ |
|   |                                  |                 |   |   |
|   |                                  | (ix)                 | non-cash  compensation charges and deferred compensation charges | $ |
|   |                                  |                 |   |   |
|   |                                  | (x)                  | other  non-cash charges, impairments and expenses | $ |
|   |                                  |                 |   |   |
|   |                                  | (xi)                 | fees,  cash charges and other cash expenses made or incurred in connection with  equity or debt financings, amendments and waivers | $ |
|   |                                  |                 |   |   |
|   |                                  | (xii)                | cash  payments made on account of non-cash charges added to Consolidated Net Income | $ |
|   |                                  |                 |   |   |
|   |                                  | (xiii)               | extraordinary  gains and all non-cash items of income (to the extent included in  Consolidated Net Income) | $ |
|   |                                  |                 |   |   |
|   |                                  | (xiv)                | Consolidated  EBITDA |   |
|   |                                  |                 | [Sum  of (i) + (ii) + (iii) + (iv) +  (v) + (vi) + |   |

 

----

 
|   |                             |                                                                                      | (vii) +  (viii) + (ix) + (x) + (xi) — (xii) — (xiii)] | $      |
|--------|----------------------------------|-------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------|--------|
|   |                             |                                                                                      |                                                                                          |   |
|   | (b)                              | Consolidated  Interest Expense                                                            |                                                                                          |
|   |                             |                                                                                      |                                                                                          |   |
|   |                             | (i)                                                                                       | interest  expense net of cash interest income                                                 | $      |
|   |                             |                                                                                      |                                                                                          |   |
|   |                             | (ii)                                                                                      | accrued  interest required to be capitalized                                                  | $      |
|   |                             |                                                                                      |                                                                                          |   |
|   |                             | (iii)                                                                                     | Consolidated  Interest Expense                                                                |   |
|   |                             |                                                                                      | [Sum  of (i) + (ii)]                                                                     | $      |
|   |                             |                                                                                      |                                                                                          |   |
|   | (c)                              | Consolidated  Interest Coverage Ratio                                                     |                                                                                          |
|   |                             | [(a)(xiv)/(b)(iii)]                                                                       | :1.0                                                                                          |
|   |                             |                                                                                      |                                                                                          |   |
| 2.     | Consolidated  Net Leverage Ratio |                                                                                      |
|   |                             |                                                                                      |                                                                                          |   |
|   | (a)                              | total  Indebtedness                                                                       | $                                                                                             |
|   |                             |                                                                                      |                                                                                          |
|   | (b)                              | unrestricted  cash of the Borrower and its Domestic Subsidiaries in excess of $15,000,000 | $                                                                                             |
|   |                             |                                                                                      |                                                                                          |
|   | (c)                              | Consolidated  EBITDA                                                                      |                                                                                          |
|   |                             | [1(a)(xiv) above]                                                                    | $                                                                                             |
|   |                             |                                                                                      |                                                                                          |
|   | (d)                              | Consolidated  Leverage Ratio                                                              |                                                                                          |
|   |                             | [((a) —  (b))/(c)]                                                              | :1.0                                                                                          |
|   |                             |                                                                                      |                                                                                          |
| 3.     | Consolidated  Leverage Ratio     |                                                                                      |
|   |                             |                                                                                      |                                                                                          |   |
|   | (a)                              | total  Indebtedness                                                                       | $                                                                                             |
|   |                             |                                                                                      |                                                                                          |
|   | (b)                              | Consolidated  EBITDA                                                                      |                                                                                          |
|   |                             | [1(a)(xiv) above]                                                                    | $                                                                                             |
|   |                             |                                                                                      |                                                                                          |
|   | (c)                              | Consolidated  Leverage Ratio (Pricing)                                                    |                                                                                          |
|   |                             | [(a)/(b)]                                                                                 | :1.0                                                                                          |

 

----

 

**Exhibit 7.09**

 

**FORM OF JOINDER AGREEMENT**

 

THISJOINDER AGREEMENT (the “Agreement”) dated asof                    ,20       is by and between                    ,a                     (the “New Subsidiary”), and Bank of America, N.A.,in its capacity as Administrative Agent under that certain Credit Agreementdated as of June 29, 2007 (as amended, modified, supplemented or extendedfrom time to time, the “Credit Agreement”) among Knoll, Inc., aDelaware corporation (the “Borrower”), the Guarantors from time to timeparty thereto, the Lenders from time to time party thereto and Bank of America,N.A., as Administrative Agent, Swing Line Lender andL/C Issuer.  Capitalized terms usedherein and not otherwise defined herein shall have the meanings assigned tosuch terms in the Credit Agreement.

 

TheLoan Parties are required by Section 7.09 of the Credit Agreementto cause the New Subsidiary to become a “Loan Party” thereunder.  Accordingly, the New Subsidiary hereby agreesas follows with the Administrative Agent, for the benefit of the Lenders:

 

1.             TheNew Subsidiary hereby acknowledges, agrees and confirms that, by its executionof this Agreement, the New Subsidiary will be deemed to be a party to theCredit Agreement and a “Guarantor” for all purposes of the Credit Agreement,and shall have all of the obligations of a Guarantor thereunderas if it had executed the Credit Agreement. The New Subsidiary hereby ratifies, as of the date hereof, and agrees tobe bound by, all of the terms, provisions and conditions applicable to theGuarantors contained in the Credit Agreement. Without limiting the generality of the foregoing terms of this paragraph1, the New Subsidiary hereby jointly and severally together with the otherGuarantors, guarantees to each Lender and the Administrative Agent, as providedin Article IV of the Credit Agreement, the prompt payment andperformance of the Obligations in full when due (whether at stated maturity, asa mandatory prepayment, by acceleration or otherwise) strictly in accordancewith the terms thereof.

 

2.             TheNew Subsidiary hereby acknowledges, agrees and confirms that, by its executionof this Agreement, the New Subsidiary will be deemed to be a party to theSecurity Agreement and an “Obligor” for all purposes of the Security Agreement,and shall have all the obligations of an Obligor thereunderas if it had executed the Security Agreement. The New Subsidiary hereby ratifies, as of the date hereof, and agrees tobe bound by, all of the terms, provisions and conditions contained in theSecurity Agreement.  Without limiting thegenerality of the foregoing terms of this paragraph 2, the New Subsidiaryhereby grants, pledges and assignes to theAdministrative Agent, for the benefit of the holders of the Secured Obligations(as defined in the Security Agreement), a continuing security interest in, anda right of set off against, any and all right, title and interest of the NewSubsidiary in and to the Collateral (as defined in the Security Agreement),including, but not limited to, the Equity Interests identified on Schedule 6hereto, of the New Subsidiary to secure the prompt payment and performance infull when due, whether by lapse of time, acceleration, mandatory prepayment orotherwise, of the Secured Obligations (as defined in the Security Agreement).

 

3.             TheNew Subsidiary hereby represents and warrants to the Administrative Agent andthe Lenders that:

 

(a)           The New Subsidiary’s exact legal name and state offormation are as set forth on the signature pages hereto.

 

(b)           The New Subsidiary’s taxpayer identification number andorganization number are set forth on Schedule 1 hereto.

 

----

 

(c)           Other than as set forth on Schedule 2 hereto, theNew Subsidiary has not changed its legal name, changed its state of formation,been party to a merger, consolidation or other change in structure in the fiveyears preceding the date hereof.

 

(d)           Schedule 3 hereto includes all of the trademarks,service marks, trade names, copyrights, patents, patent rights, franchises,licenses and other intellectual property rights (collectively, “IP Rights”)registered or pending registration with the United States Copyright Office orthe United States Patent and Trademark Office and owned by the New Subsidiaryas of the date hereof.  None of the IPRights of the New Subsidiary set forth in Schedule 3 hereto is subjectto any licensing agreement or similar arrangement, except as set forth on Schedule3 hereto.

 

(e)           Schedule 4 hereto includes all Commercial TortClaims before any Governmental Authority by or in favor of the New Subsidiary.

 

(f)            Schedule 5 hereto lists all real property locatedin the United States that is owned or leased by the New Subsidiary as of thedate hereof.

 

(g)           Schedule 6 hereto includes each Subsidiary of theNew Subsidiary, including (i) jurisdiction offormation, (ii) number of shares of each class of Equity Interestsoutstanding, (iii) the certificate number(s) of the certificatesevidencing such Equity Interests and number and percentage of outstandingshares of each class owned by the New Subsidiary (directly or indirectly) ofsuch Equity Interests and (iv) number and effect, if exercised, of all outstandingoptions, warrants, rights of conversion or purchase and all other similarrights with respect thereto.

 

4.             Theaddress of the New Subsidiary for purposes of all notices and othercommunications is the address designated for all Loan Parties on Schedule11.02 to the Credit Agreement or such other address as the New Subsidiarymay from time to time notify the Administrative Agent in writing.

 

5.             TheNew Subsidiary hereby waives acceptance by the Administrative Agent and theLenders of the guaranty by the New Subsidiary under Article IV ofthe Credit Agreement upon the execution of this Agreement by the NewSubsidiary.

 

6.             ThisAgreement may be executed in multiple counterparts, each of which shallconstitute an original but all of which when taken together shall constituteone contract.

 

7.             THISAGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITHTHE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TOCONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OFANOTHER JURISDICTION.

 

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INWITNESS WHEREOF, the New Subsidiary has caused this JoinderAgreement to be duly executed by its authorized officer, and the AdministrativeAgent, for the benefit of the Lenders, has caused the same to be accepted byits authorized officer, as of the day and year first above written.

 
|   | [NEW  SUBSIDIARY] |
|--------|-------------------|
|   |              |
|   | By:               |   |
|   | Name:             |
|   | Title:            |

 

Acknowledgedand accepted:

 

BANKOF AMERICA, N.A.,

as AdministrativeAgent

 
| By:    |   |   |
|--------|--------|--------|
| Name:  |
| Title: |

 

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**Schedule 1**

 

Taxpayer Identification Number; Organizational Number

 

**Schedule 2**

 

Changes in Legal Name or State of Formation;

Mergers, Consolidations and other Changes in Structure

 

**Schedule 3**

 

IP Rights

 

**Schedule 4**

 

Commercial Tort Claims

 

**Schedule 5**

 

Real Property Locations

 

**Schedule 6**

 

Equity Interests

 

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**Exhibit 11.06**

 

**FORM OF ASSIGNMENT AND ASSUMPTION**

 

ThisAssignment and Assumption (this “Assignment and Assumption”) is dated asof the Effective Date set forth below and is entered into by and between[the][each](2) Assignor identified in item 1 below ([the][each, an] “Assignor”)and [the][each](3) Assignee identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rightsand obligations of [the Assignors][the Assignees](4) hereunderare several and not joint.](5)  Capitalized terms used but not definedherein shall have the meanings given to them in the Credit Agreement identifiedbelow (the “Credit Agreement”), receipt of a copy of which is herebyacknowledged by the Assignee.  TheStandard Terms and Conditions set forth in Annex 1 attached hereto are herebyagreed to and incorporated herein by reference and made a part of this Assignmentand Assumption as if set forth herein in full.

 

Foran agreed consideration, [the][each] Assignor hereby irrevocably sells andassigns to [the Assignee][the respective Assignees], and [the][each] Assigneehereby irrevocably purchases and assumes from [the Assignor][the respectiveAssignors], subject to and in accordance with the Standard Terms and Conditionsand the Credit Agreement, as of the Effective Date inserted by theAdministrative Agent as contemplated below (i) allof [the Assignor’s][the respective Assignors’] rights and obligations in [itscapacity as a Lender][their respective capacities as Lenders] under the CreditAgreement and any other documents or instruments delivered pursuant thereto tothe extent related to the amount and percentage interest identified below ofall of such outstanding rights and obligations of [the Assignor][the respectiveAssignors] under the respective facilities identified below (including, withoutlimitation, the Letters of Credit and the Swing Line Loans included in suchfacilities(6)) and (ii) to the extent permitted to be assigned underapplicable law, all claims, suits, causes of action and any other right of [theAssignor (in its capacity as a Lender)][the respective Assignors (in theirrespective capacities as Lenders)] against any Person, whether known orunknown, arising under or in connection with the Credit Agreement, any otherdocuments or instruments delivered pursuant thereto or the loan transactionsgoverned thereby or in any way based on or related to any of the foregoing,including, but not limited to, contract claims, tort claims, malpracticeclaims, statutory claims and all other claims at law or in equity related tothe rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assignedby [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to hereincollectively as [the][an] “Assigned Interest”).  Each such sale and assignment is withoutrecourse to [the][any] Assignor and, except asexpressly provided in this Assignment and Assumption, without representation orwarranty by [the][any] Assignor.

 

1.             Assignor:

 

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(2)           For bracketed language here andelsewhere in this form relating to the Assignor(s), if the assignment is from asingle Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors,choose the second bracketed language.

(3)           For bracketed language here andelsewhere in this form relating to the Assignee(s), if the assignment is to asingle Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees,choose the second bracketed language.

(4)           Select as appropriate.

(5)           Include bracketed language if thereare either multiple Assignors or multiple Assignees.

(6)           Include all applicablesubfacilities.

 

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| 2.     | Assignee:              |                                                               [and  is an Affiliate/Approved Fund of [identify Lender]]                                                                                        |
|--------|------------------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| 3.     | Borrower:              | Knoll, Inc.,  a Delaware corporation                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
|   |                   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| 4.     | Administrative  Agent: | Bank  of America, N.A., as the administrative agent under  the Credit Agreement                                                                                                                                                                                                                                                                                                                                                                                                                                                      |
|   |                   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 |
| 5.     | Credit Agreement:      | Credit Agreement dated as  of June 29, 2007 (as amended, modified, supplemented or extended from  time to time, the “Credit Agreement”) among Knoll, Inc., a  Delaware corporation (the “Borrower”), the Guarantors from time to  time party thereto, the Lenders from time to time party thereto and Bank of  America, N.A., as Administrative Agent, Swing Line  Lender and L/C Issuer. Capitalized terms used but not otherwise defined herein  have the meanings provided in the Credit Agreement. |

 

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6.             AssignedInterest:

 
| **Facility  Assigned** | ** ** | **Aggregate Amount of  Commitment/Loans  for all Lenders** | ** ** | **Amount of  Commitment/Loans  Assigned(7)** | ** ** | **Percentage Assigned of  Commitment/Loans(8)** |
|------------------------|------------|------------------------------------------------------------|------------|----------------------------------------------|------------|-------------------------------------------------|
|                   |       |                                                       |       |                                         |       |                                            |
|                   |       |                                                       |       |                                         |       |                                            |
|                   |       |                                                       |       |                                         |       |                                            |

 

7.             TradeDate:

 

8.             EffectiveDate:

 

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

 
| ASSIGNOR: | [NAME  OF ASSIGNOR] |
|-----------|---------------------|
|      |                |
|      | By:                 |   |
|      | Name:               |
|      | Title:              |
|      |                |
| ASSIGNEE: | [NAME  OF ASSIGNEE] |
|      |                |
|      | By:                 |   |
|      | Name:               |
|      | Title:              |

 

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(7) Amount to be adjusted by the counterparties to take into account any paymentsor prepayments made between the Trade Date and the Effective Date.

(8) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans ofall Lenders thereunder.

 

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| [Consented  to and](9) Accepted: |   |
|---------------------------------------|--------|
|                                  |   |
| BANK  OF AMERICA, N.A.,               |   |
| as  Administrative Agent              |   |
|                                  |   |
| By:                                   |   |   |
| Name:                                 |   |
| Title:                                |   |
|                                  |   |
| [Consented  to:](10)                  |   |
|                                  |   |
| KNOLL, INC.,                     |   |
| a  Delaware corporation               |   |
|                                  |   |
| By:                                   |   |   |
| Name:                                 |   |
| Title:                                |   |
|                                  |   |
| [Consented  to:](11)                  |   |
|                                  |   |
| BANK  OF AMERICA, N.A.,               |   |
| as  L/C Issuer                        |   |
|                                  |   |
| By:                                   |   |   |
| Name:                                 |   |
| Title:                                |   |

 

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(9)   To beadded only if the consent of the Administrative Agent is required by the termsof the Credit Agreement.

(10)To be added only if the consent of the Borrower is required by the terms of theCredit Agreement.

(11)To be added only if the consent of the L/C Issuer is required by the terms ofthe Credit Agreement.

 

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Annex 1 to Assignment and Assumption

 

STANDARD TERMS AND CONDITIONS

 

1.  Representations and Warranties.

 

1.1.          Assignor.  [The][Each] Assignor (a) represents andwarrants that (i) it is the legal and beneficialowner of [the][[the relevant] Assigned Interest, (ii) [the][such] AssignedInterest is free and clear of any lien, encumbrance or other adverse claim and (iii) ithas full power and authority, and has taken all action necessary, to executeand deliver this Assignment and Assumption and to consummate the transactionscontemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations madein or in connection with the Credit Agreement or any other Loan Document, (ii) theexecution, legality, validity, enforceability, genuineness, sufficiency orvalue of the Loan Documents or any collateral thereunder,(iii) the financial condition of the Borrower, any of its Subsidiaries orAffiliates or any other Person obligated in respect of any Loan Document or (iv) theperformance or observance by the Borrower, any of its Subsidiaries orAffiliates or any other Person of any of their respective obligations under anyLoan Document.

 

1.2.          Assignee.  [The][Each] Assignee (a) represents andwarrants that (i) it has full power andauthority, and has taken all action necessary, to execute and deliver thisAssignment and Assumption and to consummate the transactions contemplatedhereby and to become a Lender under the Credit Agreement, (ii) it meetsall the requirements to be an assignee under Section 11.06(b)(iv) and(v) of the Credit Agreement (subject to such consents, if any, asmay be required under Section 11.06(b)(ii) of the CreditAgreement), (iii) from and after the Effective Date, it shall be bound bythe provisions of the Credit Agreement as a Lender thereunderand, to the extent of [the][the relevant] Assigned Interest, shall have theobligations of a Lender thereunder, (iv) it issophisticated with respect to decisions to acquire assets of the typerepresented by [the][such] Assigned Interest and either it, or the Personexercising discretion in making its decision to acquire [the][such] AssignedInterest, is experienced in acquiring assets of such type, (v) it hasreceived a copy of the Credit Agreement, and has received or has been accordedthe opportunity to receive copies of the most recent financial statementsdelivered pursuant to Section 7.01 thereof, as applicable, and suchother documents and information as it deems appropriate to make its own creditanalysis and decision to enter into this Assignment and Assumption and topurchase [the][such] Assigned Interest, (vi) it has, independently andwithout reliance upon the Administrative Agent or any other Lender and based onsuch documents and information as it has deemed appropriate, made its owncredit analysis and decision to enter into this Assignment and Assumption andto purchase [the][such] Assigned Interest, and (vii) if it is a ForeignLender, attached hereto is any documentation required to be delivered by itpursuant to the terms of the Credit Agreement, duly completed and executed by[the][such] Assignee; and (b) agrees that (i) itwill, independently and without reliance upon the Administrative Agent,[the][any] Assignor or any other Lender, and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit decisions in taking or not taking action under the Loan Documents, and (ii) itwill perform in accordance with their terms all of the obligations which by theterms of the Loan Documents are required to be performed by it as a Lender.

 

2.             Payments.  From and after the Effective Date, theAdministrative Agent shall make all payments in respect of [the][each] AssignedInterest (including payments of principal, interest, fees and other amounts) to[the][the relevant] Assignor for amounts which have accrued 

 

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to but excludingthe Effective Date and to [the][the relevant] Assignee for amounts which haveaccrued from and after the Effective Date.

 

3.             General Provisions.  This Assignment and Assumption shall bebinding upon, and inure to the benefit of, the parties hereto and their respectivesuccessors and assigns.  This Assignmentand Assumption may be executed in any number of counterparts, which togethershall constitute one instrument. Delivery of an executed counterpart of a signature page of thisAssignment and Assumption by telecopy shall be effective as delivery of amanually executed counterpart of this Assignment and Assumption.  THIS ASSIGNMENT AND ASSUMPTION SHALL BEGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK(INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERALOBLIGATIONS LAW OF THE STATE OF NEW YORK) WITHOUT REGARD TO CONFLICTS OF LAWPRINCIPLES THAT WOULD REQUIRE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

 

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