exv10w1






Exhibit 10.1




EXECUTION VERSION




Published CUSIP Number:                     




CREDIT AGREEMENT




Dated as of September 30, 2008




among




ATHENAHEALTH, INC.,




as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and

L/C Issuer,




and




The Other Lenders Party Hereto




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01. Defined Terms
	 	 	1	 
	1.02. Other Interpretive Provisions
	 	 	24	 
	1.03. Accounting Terms
	 	 	25	 
	1.04. Rounding
	 	 	25	 
	1.05. Times of Day
	 	 	25	 
	1.06. Letter of Credit Amounts
	 	 	25	 
	1.07. Currency Equivalents Generally
	 	 	25	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	26	 
	2.01. The Loans
	 	 	26	 
	2.02. Borrowings, Conversions and Continuations of Loans
	 	 	26	 
	2.03. Letters of Credit
	 	 	28	 
	2.04. Swing Line Loans
	 	 	35	 
	2.05. Prepayments
	 	 	38	 
	2.06. Termination or Reduction of Commitments
	 	 	39	 
	2.07. Repayment of Loans
	 	 	40	 
	2.08. Interest
	 	 	40	 
	2.09. Fees
	 	 	41	 
	2.10. Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate
	 	 	42	 
	2.11. Evidence of Debt
	 	 	42	 
	2.12. Payments Generally; Administrative Agent’s Clawback
	 	 	43	 
	2.13. Sharing of Payments by Lenders
	 	 	44	 
	2.14. Increase in Revolving Credit Facility
	 	 	45	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	46	 
	3.01. Taxes
	 	 	46	 
	3.02. Illegality
	 	 	49	 
	3.03. Inability to Determine Rates
	 	 	50	 
	3.04. Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	50	 
	3.05. Compensation for Losses
	 	 	51	 
	3.06. Mitigation Obligations; Replacement of Lenders
	 	 	52	 
	3.07. Survival
	 	 	52	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	53	 






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TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	4.01. Conditions of Initial Credit Extension
	 	 	53	 
	4.02. Conditions to all Credit Extensions
	 	 	56	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	57	 
	5.01. Existence, Qualification and Power
	 	 	57	 
	5.02. Authorization; No Contravention
	 	 	57	 
	5.03. Governmental Authorization; Other Consents
	 	 	57	 
	5.04. Binding Effect
	 	 	57	 
	5.05. Financial Statements; No Material Adverse Effect
	 	 	57	 
	5.06. Litigation
	 	 	58	 
	5.07. No Default
	 	 	58	 
	5.08. Ownership of Property; Liens; Investments
	 	 	58	 
	5.09. Environmental Compliance
	 	 	59	 
	5.10. Insurance
	 	 	60	 
	5.11. Taxes
	 	 	60	 
	5.12. ERISA Compliance
	 	 	60	 
	5.13. Subsidiaries; Equity Interests
	 	 	61	 
	5.14. Margin Regulations; Investment Company Act
	 	 	61	 
	5.15. Disclosure
	 	 	61	 
	5.16. Compliance with Laws
	 	 	62	 
	5.17. Intellectual Property; Licenses, Etc
	 	 	62	 
	5.18. Solvency
	 	 	62	 
	5.19. Casualty, Etc
	 	 	62	 
	5.20. Labor Matters
	 	 	62	 
	5.21. Collateral Documents
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	62	 
	6.01. Financial Statements
	 	 	63	 
	6.02. Certificates; Other Information
	 	 	63	 
	6.03. Notices
	 	 	65	 
	6.04. Payment of Obligations
	 	 	66	 
	6.05. Preservation of Existence, Etc
	 	 	66	 
	6.06. Maintenance of Properties
	 	 	66	 
	6.07. Maintenance of Insurance
	 	 	66	 






ii









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	6.08. Compliance with Laws
	 	 	66	 
	6.09. Books and Records
	 	 	67	 
	6.10. Inspection Rights
	 	 	67	 
	6.11. Use of Proceeds
	 	 	67	 
	6.12. Covenant to Guarantee Obligations and Give Security
	 	 	67	 
	6.13. Compliance with Environmental Laws
	 	 	70	 
	6.14. Preparation of Environmental Reports
	 	 	71	 
	6.15. Further Assurances
	 	 	71	 
	6.16. Compliance with Terms of Leaseholds
	 	 	71	 
	6.17. Interest Rate Hedging
	 	 	71	 
	6.18. Access Agreement; Landlord Waiver and Consent Agreements
	 	 	71	 
	6.19. Cash Management
	 	 	72	 
	6.20. Securities Account Control Agreement
	 	 	72	 
	6.21. Pro Forma Compliance Certificate
	 	 	72	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	72	 
	7.01. Liens
	 	 	73	 
	7.02. Indebtedness
	 	 	74	 
	7.03. Investments
	 	 	75	 
	7.04. Fundamental Changes
	 	 	77	 
	7.05. Dispositions
	 	 	78	 
	7.06. Restricted Payments
	 	 	78	 
	7.07. Change in Nature of Business
	 	 	79	 
	7.08. Transactions with Affiliates
	 	 	79	 
	7.09. Burdensome Agreements
	 	 	79	 
	7.10. Use of Proceeds
	 	 	79	 
	7.11. Financial Covenants
	 	 	79	 
	7.12. Capital Expenditures
	 	 	80	 
	7.13. Amendments of Organization Documents
	 	 	80	 
	7.14. Accounting Changes
	 	 	80	 
	7.15. Prepayments, Etc. of Indebtedness
	 	 	80	 
	7.16. Amendment, Etc. of Indebtedness
	 	 	80	 
	7.17. OFAC
	 	 	80	 






iii









 





TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	81	 
	8.01. Events of Default
	 	 	81	 
	8.02. Remedies upon Event of Default
	 	 	83	 
	8.03. Application of Funds
	 	 	83	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	84	 
	9.01. Appointment and Authority
	 	 	84	 
	9.02. Rights as a Lender
	 	 	85	 
	9.03. Exculpatory Provisions
	 	 	85	 
	9.04. Reliance by Administrative Agent
	 	 	86	 
	9.05. Delegation of Duties
	 	 	86	 
	9.06. Resignation of Administrative Agent
	 	 	86	 
	9.07. Non-Reliance on Administrative Agent and Other Lenders
	 	 	87	 
	9.08. Administrative Agent May File Proofs of Claim
	 	 	87	 
	9.09. Collateral and Guaranty Matters
	 	 	88	 
	9.10. Secured Cash Management Agreements and Secured Hedge Agreements
	 	 	88	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	89	 
	10.01. Amendments, Etc
	 	 	89	 
	10.02. Notices; Effectiveness; Electronic Communications
	 	 	90	 
	10.03. No Waiver; Cumulative Remedies; Enforcement
	 	 	92	 
	10.04. Expenses; Indemnity; Damage Waiver
	 	 	92	 
	10.05. Payments Set Aside
	 	 	94	 
	10.06. Successors and Assigns
	 	 	95	 
	10.07. Treatment of Certain Information; Confidentiality
	 	 	98	 
	10.08. Right of Setoff
	 	 	99	 
	10.09. Interest Rate Limitation
	 	 	99	 
	10.10. Counterparts; Integration; Effectiveness
	 	 	99	 
	10.11. Survival of Representations and Warranties
	 	 	100	 
	10.12. Severability
	 	 	100	 
	10.13. Replacement of Lenders
	 	 	100	 
	10.14. Governing Law
	 	 	100	 
	10.15. Dispute Resolution
	 	 	101	 
	10.16. No Advisory or Fiduciary Responsibility
	 	 	102	 






iv









 




TABLE OF CONTENTS
(continued)




	 	 	 	 	 
	 	 	Page
	 
	 	 	 	 
	10.17. Electronic Execution of Assignments and Certain Other Documents
	 	 	102	 
	10.18. USA PATRIOT Act
	 	 	103	 






 v




 









 





SCHEDULES




	 	 	 
	2.01

	 	Commitments and Applicable Percentages
	5.05

	 	Supplement to Interim Financial Statements
	5.06

	 	Litigation
	5.08(b)

	 	Existing Liens
	5.08(c)

	 	Owned Real Property
	5.08(d)(i)

	 	Leased Real Property (Lessee)
	5.08(d)(ii)

	 	Leased Real Property (Lessor)
	5.08(e)

	 	Existing Investments
	5.09

	 	Environmental Matters
	5.13

	 	Subsidiaries; Equity Interests
	5.17

	 	Intellectual Property Matters
	6.12

	 	Guarantors
	7.02

	 	Existing Indebtedness
	7.09

	 	Burdensome Agreements
	10.02

	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 
	Form of
	 	 
	A

	 	Committed Loan Notice
	B

	 	Swing Line Loan Notice
	C-1

	 	Term Note
	C-2

	 	Revolving Credit Note
	D

	 	Compliance Certificate
	E-1

	 	Assignment and Assumption
	E-2

	 	Administrative Questionnaire
	F

	 	Guaranty
	G

	 	Securities Pledge Agreement
	H

	 	Mortgage
	I

	 	Intellectual Property Security Agreement
	J-1

	 	Opinion Matters – Counsel to Borrower and its Subsidiaries
	J-2

	 	Opinion Matters – Local Counsel to Borrower and its Subsidiaries






 









 





CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of September 30, 2008, among
ATHENAHEALTH, INC., a Delaware corporation (the “Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK
OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



PRELIMINARY STATEMENTS:




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



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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



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



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



     “Administrative Questionnaire” means an Administrative Questionnaire in substantially
the form of Exhibit E-2 or any other form approved by the Administrative Agent.



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



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



     “Aggregate Credit Exposures” means, at any time, in respect of (a) the Term Facility,
the aggregate amount of the Term Loans outstanding at such time and (b) in respect of the Revolving
Credit Facility, the sum of (i) the unused portion of the Revolving Credit Facility at such time
and (ii) the Total Revolving Credit Outstandings at such time.



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means (a) in respect of the Term Facility, with respect to any
Term Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
Facility represented by (i) on or prior to the Closing Date, such Term Lender’s Term Commitment at
such time and (ii) thereafter, the principal amount of such Term Lender’s Term Loans at such time,
and (b) in respect of the Revolving Credit Facility, with respect to any Revolving Credit Lender at
any time, the



 









 







percentage (carried out to the ninth decimal place) of the Revolving Credit Facility
represented by such Revolving Credit Lender’s Revolving Credit Commitment at such time. If the
commitment of each Revolving Credit Lender to make Revolving Credit Loans and the obligation of the
L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02, or
if the Revolving Credit Commitments have expired, then the Applicable Percentage of each Revolving
Credit Lender in respect of the Revolving Credit Facility shall be determined based on such
Revolving Credit Lender’s portion of the Total Revolving Credit Outstandings at such time. The
initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the
name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which
such Lender becomes a party hereto, as applicable.



     “Applicable Rate” means (a) with respect to any portion of the Term Loan that is a
Base Rate Loan, minus 1.00%, (b) with respect to any portion of the Term Loan that is a
Eurodollar Rate Loan, plus 1.00%, and (c) with respect to Revolving Credit Loans, Letter of
Credit Fees and Commitment Fees, (i) from the Closing Date to the date on which the Administrative
Agent receives a Compliance Certificate pursuant to Section 6.02(a) for the fiscal quarter
ending December 31, 2008, 0.00% per annum for Base Rate Loans, 1.00% per annum for Eurodollar Rate
Loans and Letter of Credit Fees and 0.15% per annum for the Commitment Fee and (ii) thereafter, the
applicable percentage per annum set forth below determined by reference to the Consolidated
Leverage Ratio as set forth in the most recent Compliance Certificate received by the
Administrative Agent pursuant to Section 6.02(a):



Applicable Rate for Revolving Credit Loans, Letter of Credit Fees and Commitment Fees




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Consolidated	 	Eurodollar Rate and	 	 	 	 
	Pricing Level	 	Leverage Ratio	 	Letters of Credit	 	Base Rate	 	Commitment Fee
	I

	 	> 2.50 to 1.00
	 	 	2.75	%	 	 	0.50	%	 	 	0.30	%
	II

	 	> 2.00 to 1.00
but £2.50 to 1.00
	 	 	2.50	%	 	 	0.25	%	 	 	0.25	%
	III

	 	> 1.50 to 1.00
but £ 2.00 to 1.00
	 	 	2.00	%	 	 	0.00	%	 	 	0.20	%
	IV

	 	> 0.50 to 1.00
but £ 1.50 to
1.00
	 	 	1.50	%	 	 	0.00	%	 	 	0.15	%
	V

	 	£ 0.50 to 1.00
	 	 	1.00	%	 	 	0.00	%	 	 	0.15	%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated
Leverage Ratio shall become effective as of the first Business Day immediately following the date a
Compliance Certificate is delivered pursuant to Section 6.02(a); provided,
however, that if a Compliance Certificate is not delivered when due in accordance with such
Section, then upon the request of the Required Lenders, Pricing Level I shall apply as of the first
Business Day after the date on which such Compliance Certificate was required to have been
delivered until the first Business Day immediately following the date such Compliance Certificate
is delivered, provided, further, that the Applicable Rate at such time shall be
determined by reference to the Consolidated Leverage Ratio as set forth in such Compliance
Certificate.




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



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     “Applicable Revolving Credit Percentage” means with respect to any Revolving Credit
Lender at any time, such Revolving Credit Lender’s Applicable Percentage in respect of the
Revolving Credit Facility at such time.



     “Appropriate Lender” means, at any time, (a) with respect to either of the Term
Facility or the Revolving Credit Facility, a Lender that has a Commitment with respect to such
Facility or holds a Term Loan or a Revolving Credit Loan, respectively, at such time, (b) with
respect to the Letter of Credit Sublimit, (i) the L/C Issuer and (ii) if any Letters of Credit have
been issued pursuant to Section 2.03(a), the Revolving Credit Lenders and (c) with respect
to the Swing Line Sublimit, (i) the Swing Line Lender and (ii) if any Swing Line Loans are
outstanding pursuant to Section 2.04(a), the Revolving Credit Lenders.



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



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



     “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an Eligible Assignee (with the consent of any party whose consent is required by
Section 10.06(b)), and accepted by the Administrative Agent, in substantially the form of
Exhibit E-1 or any other form approved by the Administrative Agent.



     “Athena India” means Athena Net India Pvt. Ltd., a company organized under the laws of
the Republic of India and a Subsidiary of the Borrower.



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended December 31, 2007, and the related
consolidated statements of income or operations, shareholders’ equity and cash flows for such
fiscal year of the Borrower and its Subsidiaries, including the notes thereto.



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



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



     “Base Rate” means for any day a fluctuating rate per annum equal to the higher of (a)
the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate”
is a rate set by Bank of America based upon various factors including Bank of America’s costs and
desired return, general economic



-3-









 







conditions and other factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate. Any change in such rate announced by Bank
of America shall take effect at the opening of business on the day specified in the public
announcement of such change.



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



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



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



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



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in
the London interbank eurodollar market.



     “Capital Expenditures” means, with respect to any Person for any period, any
expenditure in respect of the purchase or other acquisition of any fixed or capital asset
(excluding (i) normal replacements and maintenance which are properly charged to current operations
and (ii) expenditures equal to that portion of the purchase price for Permitted Acquisitions
constituting capital expenditures).



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



     “Cash Collateral Account” means a blocked, interest bearing deposit account of the
Borrower or any of its Subsidiaries at Bank of America (or another commercial bank selected in
compliance with Section 6.19) in the name of the Administrative Agent and under the sole
dominion and control of the Administrative Agent, and otherwise established in a manner
satisfactory to the Administrative Agent.



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



     “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all Liens (other than Liens
created under the Collateral Documents):



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



     (b) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any
commercial bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of
America, any state thereof or the District of Columbia or is the principal banking subsidiary of a
bank holding company organized under the laws of the United States of America, any state thereof or
the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent
of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has
combined capital



-4-









 







and surplus of at least $1,000,000,000, in each case with maturities of not more than 180 days
from the date of acquisition thereof;



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



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



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



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



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



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



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



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



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



     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary
or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to
have “beneficial ownership” of all securities that such person or group has the right to acquire,
whether such right is exercisable immediately or only after the passage of time (such right, an
“option right”)), directly or indirectly, of 35% or more of the equity securities of the
Borrower entitled to vote for members of the board of directors or equivalent governing body of the
Borrower on a fully-diluted basis (and taking into account all such securities that such “person”
or “group” has the right to acquire pursuant to any option right); or



-5-









 





     (b) during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be composed of individuals
(i) who were members of that board or equivalent governing body on the first day of such period,
(ii) whose election or nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of such election or nomination
at least a majority of that board or equivalent governing body or (iii) whose election or
nomination to that board or other equivalent governing body was approved by individuals referred to
in clauses (i) and (ii) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and
clause (iii), any individual whose initial nomination for, or assumption of office as, a member of
that board or equivalent governing body occurs as a result of an actual or threatened solicitation
of proxies or consents for the election or removal of one or more directors by any person or group
other than a solicitation for the election of one or more directors by or on behalf of the board of
directors); or



     (c) any Person or two or more Persons acting in concert shall have acquired by contract or
otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof,
will result in its or their acquisition of the power to exercise, directly or indirectly, a
controlling influence over the management or policies of the Borrower, or control over the equity
securities of the Borrower entitled to vote for members of the board of directors or equivalent
governing body of the Borrower on a fully-diluted basis (and taking into account all such
securities that such Person or Persons have the right to acquire pursuant to any option right)
representing 35% or more of the combined voting power of such securities; or



     (d) the Borrower shall cease, directly or indirectly, to own and control legally and
beneficially 100% of the Equity Interests in each of its Subsidiaries (other than with respect to
the one share in Athena India issued or to be issued to PSS World Medical Inc.); or



     (e) either of (i) Jonathan Bush shall cease to be the Chief Executive Officer of the Borrower
and no replacement reasonably acceptable to the Administrative Agent shall have been appointed to
such position within sixty (60) days or (ii) Carl Byers shall cease to be the Chief Financial
Officer of the Borrower and no replacement reasonably acceptable to the Administrative Agent shall
have been appointed to such position within sixty (60) days.



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



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



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



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



     “Commitment” means a Term Commitment or a Revolving Credit Commitment, as the context
may require.



-6-









 





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



     “Company” has the meaning specified in the Preliminary Statements.



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



     “Consolidated EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus (a) the following to the extent deducted in
calculating such Consolidated Net Income: (i) Consolidated Interest Charges, (ii) the provision
for Federal, state, local and foreign income taxes payable, (iii) depreciation and amortization
expense, (iv) other non-recurring expenses reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period (in each case of or by the Borrower and
its Subsidiaries for such Measurement Period) and (v) non-cash stock based compensation expenses
and minus (b) the following to the extent included in calculating such Consolidated Net
Income: (i) Federal, state, local and foreign income tax credits and (ii) all non-cash items
increasing Consolidated Net Income (in each case of or by the Borrower and its Subsidiaries for
such Measurement Period).



     “Consolidated Fixed Charge Coverage Ratio” means, at any date of determination, the
ratio of (a) Consolidated EBITDA, minus the sum of (i) the aggregate amount of all Capital
Expenditures for property, plant and equipment or software made by the Borrower and its
Subsidiaries on a consolidated basis during the most recently completed Measurement Period and (ii)
the aggregate amount of Federal, state, local and foreign income taxes paid in cash, in each case,
of or by the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period to (b) the sum of (i) Consolidated Interest Charges for the most recently
completed Measurement Period, (ii) the aggregate principal amount of all regularly scheduled
principal payments or redemptions or similar acquisitions for value of outstanding Indebtedness for
borrowed money, but excluding any such payments to the extent refinanced through the incurrence of
additional Indebtedness otherwise expressly permitted under Section 7.02, in each case, of
or by the Borrower and its Subsidiaries on a consolidated basis for the most recently completed
Measurement Period, and (iii) the aggregate amount of all Restricted Payments of or by the Borrower
and its Subsidiaries on a consolidated basis for the most recently completed Measurement Period.



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



-7-









 





     “Consolidated Interest Charges” means, for any Measurement Period, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses in connection with
borrowed money (including capitalized interest) or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest in accordance with GAAP, (b) all interest
paid or payable with respect to discontinued operations and (c) the portion of rent expense under
Capitalized Leases that is treated as interest in accordance with GAAP, in each case, of or by the
Borrower and its Subsidiaries on a consolidated basis for the most recently completed Measurement
Period.



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



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



     “Contingent Indemnity Obligation” means, as to any Person, those contingent and
unmatured indemnity obligations to the extent no claim giving rise thereto has been asserted.



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



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



     “Control Account” means each deposit account and securities account now or hereafter
owned by the Borrower or any of its Subsidiaries, other than disbursement accounts, payroll
accounts, withholding tax and other fiduciary accounts.



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



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



-8-









 





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



     “Default Rate” means (a), when used with respect to Obligations other than Letter of
Credit Fees, the interest rate then in effect pursuant to Section 2.08(a) plus
2.00% per annum, and (b) when used with respect to Letter of Credit Fees, the rate then in effect
pursuant to Section 2.03(i) plus 2.00% per annum.



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



     “Deposit Account Control Agreement” shall mean an agreement substantially in form and
substance reasonably satisfactory to the Administrative Agent establishing the Administrative
Agent’s “control” (as such term is defined in Section 9-104 of the UCC) with respect to any deposit
account.



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



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



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



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



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



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



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



-9-









 





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



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) which is
considered a single employer together with the Borrower or any of its Subsidiaries within the
meaning of Section 414(b), (c), (m) or (o) of the Code.



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate from a Pension
Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as
defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a
withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower,
any Subsidiary of any Borrower or any ERISA Affiliate from a Multiemployer Plan; (d) a
determination by the plan administrator that a Multiemployer Plan is, or is reasonably expected to
be, insolvent or in reorganization, within the meaning of Title IV of ERISA or, on and after the
effectiveness of the applicable provisions of the Pension Act with respect to such Multiemployer
Plan, is or is expected to be in endangered or critical status, within the meaning of Section 305
of ERISA or Section 432 of the Code; (e) the filing of a notice of intent to terminate, the
treatment of a plan amendment as a termination under Section 4041 or 4041A of ERISA, or the
commencement of proceedings by the PBGC to terminate, a Pension Plan or Multiemployer Plan; (f) an
event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the
imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon any Borrower, any Subsidiary of any Borrower or any
ERISA Affiliate; (h) prior to the effectiveness of the applicable provisions of the Pension Act
with respect to a Pension Plan, the existence with respect to the Pension Plan of an “accumulated
funding deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA as in effect
prior to the effective date of the Pension Act) in excess of $500,000 or, on and after the
effectiveness of the applicable provisions of the Pension Act with respect to such Pension Plan,
any failure by the Pension Plan to satisfy the minimum funding standard (within the meaning of
Section 412 of the Code or Section 302 of ERISA) applicable to such Pension Plan, in each case
whether or not waived; (i) the filing pursuant to, prior to the effectiveness of the applicable
provisions of the Pension Act with respect to a Pension Plan, Section 412(d) of the Code or Section
303(d) of ERISA or, on and after the effectiveness of the applicable provisions of the Pension Act
with respect to the Pension Plan, Section 412(c) of the Code or Section 302(c) of ERISA, of an
application for a waiver of the minimum funding standard with respect to such Pension Plan; (j) on
and after the effectiveness of the applicable provisions of the Pension Act with respect to a
Pension Plan, a determination that the Pension Plan is, or is expected to be, in “at-risk” status
(as defined in Section 303(i)(4) of ERISA or Section 430(i)(4) of the Code).



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



-10-









 







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



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



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



     “Excluded Issuance” by any Person means an issuance and sale of an Equity Interest in
such Person or an issuance of shares of capital stock of (or other ownership or profit interests
in) such Person upon the exercise of warrants, options or other rights for the purchase of such
capital stock (or other ownership or profit interest).



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any obligation of the
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction
(or any political subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which its applicable
Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to
comply with clause (A) of Section 3.01(e)(ii), (d) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 10.13), any United
States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender
pursuant to the Laws in force at the time such Foreign Lender becomes a party hereto (or designates
a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time
of designation of a new Lending Office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 3.01(a)(i) or (ii), (e)
taxes imposed as a result of the Administrative Agent’s failure to comply with its obligations
under Section 10.06(c) of this Agreement and (f) any interest, additions to tax, or
penalties applicable to taxes described in clauses (a), (b), (c), (d) and (e) of this definition.



     “Export Control Regulations” means all regulations administered and requirements
imposed by OFAC, including compliance with the Specially Designated Nationals/Blocked Persons Lists
and the OFAC Country Sanctions Programs, and any associated Executive Orders, and U.S. Department
of Commerce regulations and requirements related to the Export Administration Regulations, Commerce
Control List, the Commerce Country Chart, and Denied Persons List, as applicable to the Borrower
and its Subsidiaries.



     “Export Violation” means any violation of any Export Control Regulation.



-11-









 





     “Extraordinary Receipt” means any cash received by or paid to or for the account of
any Person not in the ordinary course of business, including tax refunds, pension plan reversions,
proceeds of insurance (other than proceeds of business interruption insurance to the extent such
proceeds constitute compensation for lost earnings), condemnation awards (and payments in lieu
thereof), indemnity payments and any purchase price adjustments.



     “Facility” means the Term Facility or the Revolving Credit Facility, as the context
may require.



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



     “Fee Letter” means the letter agreement, dated September 30, 2008, between the
Borrower and the Administrative Agent.



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



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



     “Foreign Plan” has the meaning specified in Section 5.12(d).



     “Foreign Subsidiary” means any Subsidiary of the Borrower that is organized under the
laws of any jurisdiction other than the United States of America or the District of Columbia.



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



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



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



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



-12-









 





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



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



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



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



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



     “HIPPA” means the Health Insurance Portability and Accountability Act of 1996, as
amended.



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



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



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



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



-13-









 





     (d) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and not past due for more
than 90 days);



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



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



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



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



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



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



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



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



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



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



-14-









 





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



     (c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such
Loan was made.



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



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



     “IP Security Agreement Supplement” has the meaning specified in Section 5.1 of
the Security Agreement.



     “IRS” means the United States Internal Revenue Service.



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



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



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations (including, without limitation, HIPPA),
ordinances, codes and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged with the
enforcement, interpretation or administration thereof, and all applicable administrative orders,
directed duties, requests, licenses, authorizations and permits of, and agreements with, any
Governmental Authority, in each case whether or not having the force of law.



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



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



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



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



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



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



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



     “Letter of Credit” means any standby letter of credit issued hereunder.



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



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



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



     “Letter of Credit Sublimit” means an amount equal to $10,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.



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



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



     “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) the
Guaranty, (d) the Collateral Documents, (e) the Fee Letter, (f) each Issuer Document, (g) the
Mortgages, (h) the Securities Account Control Agreements, and (i) the Secured Hedge Agreements;
provided that for purposes of the definition of “Material Adverse Effect” and
Articles IV thorough IX, “Loan Documents” shall not include Secured Hedge
Agreements.



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



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effect or enforceability against the Borrower or any of its Subsidiaries of any Loan Document
to which it is a party.



     “Maturity Date” means (a) with respect to the Revolving Credit Facility, September 30,
2011, and (b) with respect to the Term Facility, September 30, 2013; provided,
however, that, in each case, if such date is not a Business Day, the Maturity Date shall be
the next preceding Business Day.



     “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Borrower or, if fewer than four consecutive fiscal quarters of the
Borrower have been completed since the Closing Date, the fiscal quarters of the Borrower that have
been completed since the Closing Date.



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



     “Mortgage” means (i) that certain mortgage on the Mortgaged Property delivered
pursuant to Section 4.01(a)(iv) and (ii) any mortgage delivered pursuant to Section
6.12.



     “Mortgage Policy” means (i) that certain mortgage policy delivered pursuant to
Section 4.01(a)(iv)(B) and (ii) any mortgage policy delivered pursuant to Section
6.12.



     “Mortgaged Property” means the real property located at 1 Hatley Road, Belfast, Maine
04915, the buildings and improvements thereon, the fixtures thereon and the related equipment and
which is subject to the Mortgage and a Lien in favor or the Administrative Agent and upon which no
other Liens exist.



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



     “Net Cash Proceeds” means:



     (a) with respect to any Disposition by the Borrower or any of its Subsidiaries, or any
Extraordinary Receipt received or paid to the account of the Borrower or any of its Subsidiaries,
the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such
transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant
to, or by monetization of, a note receivable or otherwise, but only as and when so received) over
(ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable
asset and that is required to be repaid in connection with such transaction (other than
Indebtedness under the Loan Documents), (B) the reasonable and customary out-of-pocket expenses
incurred by the Borrower or such Subsidiary in connection with such transaction and (C) income
taxes reasonably estimated to be actually payable within two years of the date of the relevant
transaction as a result of any gain recognized in connection therewith; provided that, if
the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually
required to be paid in cash in respect of such Disposition, the aggregate amount of such excess
shall constitute Net Cash Proceeds; and



     (b) with respect to the sale or issuance of any Equity Interest by the Borrower or any of its
Subsidiaries, or the incurrence or issuance of any Indebtedness by the Borrower or any of its
Subsidiaries, the excess of (i) the sum of the cash and Cash Equivalents received in connection
with such transaction over (ii) the underwriting discounts and commissions, and other reasonable
and customary out-of-pocket expenses, incurred by the Borrower or such Subsidiary in connection
therewith.



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     “Note” means a Term Note or a Revolving Credit Note, as the context may require.



     “NPL” means the National Priorities List under CERCLA.



     “Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Borrower or any of its Subsidiaries arising under any Loan Document to which it
is a party (including, without limitation, (x) any treasury, depository, overdraft, credit or debit
card, electronic funds transfer and other cash management services under or in respect of Secured
Cash Management Agreements and (y) all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing under
or in respect of Secured Hedge Agreements) or otherwise with respect to any Loan or Letter of
Credit, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Borrower or any of its Subsidiaries or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor
in such proceeding, regardless of whether such interest and fees are allowed claims in such
proceeding.



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



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



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



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



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



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



     “Permitted Acquisition” has the meaning specified in Section 7.03(g).



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



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



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



     “Platform” has the meaning specified in Section 6.02.



     “Pledged Debt” has the meaning specified in Section 4.1 of the
Security Agreement.



     “Pledged Equity” has the meaning given the term “Securities Collateral” under the
Securities Pledge Agreement.



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



     “Receivables” means all (a) Accounts, (b) Chattel Paper, (c) Payment Intangibles, (d)
General Intangibles, (e) Instruments (as each such term is defined in the UCC) and (f) to the
extent not otherwise covered above, all other rights to payment, whether or not earned by
performance, for goods or other property sold, leased, licensed, assigned or otherwise disposed of,
regardless of how classified under the UCC.



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



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders holding in the
aggregate at least a majority of the sum of the (a) Total Outstandings (with the aggregate amount
of each Revolving Credit Lender’s risk participation and funded participation in L/C Obligations
and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes of this
definition) and (b) aggregate



-19-









 







unused Revolving Credit Commitments; provided that the unused Revolving Credit
Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting
Lender shall be excluded for purposes of making a determination of Required Lenders.



     “Required Revolving Lenders” means, as of any date of determination, Revolving Credit
Lenders holding in the aggregate at least a majority of the sum of the (a) Total Revolving Credit
Outstandings (with the aggregate amount of each Revolving Credit Lender’s risk participation and
funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Revolving
Credit Lender for purposes of this definition) and (b) aggregate unused Revolving Credit
Commitments; provided that the unused Revolving Credit Commitment of, and the portion of
the Total Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required Revolving Lenders.



     “Required Term Lenders” means, as of any date of determination, Term Lenders holding
in the aggregate at least a majority of the Term Facility on such date; provided that the
portion of the Term Facility held by any Defaulting Lender shall be excluded for purposes of making
a determination of Required Term Lenders.



     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of the Borrower or, as the case may be, any
of its Subsidiaries and any other officer of the Borrower or, as the case may be, any of its
Subsidiaries so designated by any of the foregoing officers in a notice to the Administrative
Agent. Any document delivered hereunder that is signed by a Responsible Officer of the Borrower or
such Subsidiary shall be conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of the Borrower or such Subsidiary and such
Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower or such
Subsidiary.



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



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



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



     “Revolving Credit Facility” means, at any time, the aggregate amount of the Revolving
Credit Lenders’ Revolving Credit Commitments at such time.



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     “Revolving Credit Lender” means, at any time, any Lender that has a Revolving Credit
Commitment at such time.



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



     “Revolving Credit Note” means a promissory note made by the Borrower in favor of a
Revolving Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be,
made by such Revolving Credit Lender, substantially in the form of Exhibit C-2.



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



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



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



     “Secured Hedge Agreement” means any Swap Contract that is entered into by and between
the Borrower and any Hedge Bank.



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



     “Securities Account Control Agreement” means an agreement in form and substance
reasonably satisfactory to the Administrative Agent establishing the Administrative Agent’s
“control” (as such term is defined in Section 9-106 of the UCC) with respect to any securities
account.



     “Securities Pledge Agreement” means a securities pledge agreement, substantially in
the form of Exhibit G, with respect to any Subsidiary of the Borrower (other than any CFC
or a Subsidiary that is held directly or indirectly by a CFC) formed or acquired after the Closing
Date, in form and substance reasonably satisfactory to the Administrative Agent and as amended and
in effect from time to time.



     “Security Agreement” means, collectively, (a) that certain Security Agreement,
executed and delivered on the Closing Date, between the Borrower and the Administrative Agent, and
(b) any other Security Agreement that may be entered into after the Closing Date with respect to
any Subsidiary of the Borrower (other than any CFC or a Subsidiary that is held directly or
indirectly by a CFC) formed or acquired after the Closing Date, in each case, in form and substance
reasonably satisfactory to the Administrative Agent and as amended and in effect from time to time.



     “Security Agreement Supplement” has the meaning specified in Section
26 of the Security Agreement.



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



     “Solvent” and “Solvency” mean, with respect to any Person on any date of
determination, that on such date (a) the fair value of the property of such Person is greater than
the total amount of liabilities, including contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such



-21-









 







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



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Borrower. Unless otherwise specified herein,
notwithstanding anything to the contrary contained herein, the term “Subsidiary” shall not
include Athena India; provided, however, that Athena India shall be included in all financial
reporting and financial covenant calculations required under this Agreement.



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



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



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



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



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



-22-









 





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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $0.00 and (b) the
Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.



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



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale and leaseback transactions), in each case, creating
obligations that do not appear on the balance sheet of such Person but which, upon the application
of any Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).



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



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



     “Term Commitment” means, as to each Term Lender, its obligation to make Term Loans to
the Borrower pursuant to Section 2.01(a) in an aggregate principal amount at any one time
outstanding not to exceed the amount set forth opposite such Term Lender’s name on Schedule
2.01 under the caption “Term Commitment” or opposite such caption in the Assignment and
Assumption pursuant to which such Term Lender becomes a party hereto, as applicable, as such amount
may be adjusted from time to time in accordance with this Agreement.



     “Term Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate
amount of the Term Commitments at such time and (b) thereafter, the aggregate principal amount of
the Term Loans of all Term Lenders outstanding at such time.



     “Term Lender” means (a) at any time on or prior to the Closing Date, any Lender that
has a Term Commitment at such time and (b) at any time after the Closing Date, any Lender that
holds Term Loans at such time.



     “Term Loan” means an advance made by any Term Lender under the Term Facility.



     “Term Note” means a promissory note made by the Borrower in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit C-1.



     “Threshold Amount” means $1,000,000.



     “Total Revolving Credit Outstandings” means the aggregate Outstanding Amount of all
Revolving Credit Loans, Swing Line Loans and L/C Obligations.



-23-









 





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



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



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



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



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



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



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



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



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



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



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



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



     (c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest
Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a
Subsidiary as defined herein.



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



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



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



     1.07. Currency Equivalents Generally. Any amount specified in this Agreement (other than in
Articles II, IX and X) or any of the other Loan Documents to be in Dollars
shall also include the equivalent of such amount in any currency other than Dollars, such
equivalent amount thereof in the applicable currency to be determined by the Administrative Agent
at such time on the basis of the Spot Rate (as defined below) for the purchase of such currency
with Dollars. For purposes of this Section 1.07, the “Spot Rate” for a currency
means the rate determined by the Administrative Agent to be the rate



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quoted by the Person acting in such capacity as the spot rate for the purchase by such Person
of such currency with another currency through its principal foreign exchange trading office at
approximately 11:00 a.m. on the date two Business Days prior to the date of such determination;
provided that the Administrative Agent may obtain such spot rate from another financial
institution designated by the Administrative Agent if the Person acting in such capacity does not
have as of the date of determination a spot buying rate for any such currency.



ARTICLE II.

the COMMITMENTS and Credit Extensions




     2.01. The Loans.



     (a) The Term Borrowing. Subject to the terms and conditions set forth herein, each
Term Lender severally agrees to make a single loan to the Borrower on the Closing Date in an amount
not to exceed such Term Lender’s Term Commitment Percentage of the Term Facility. The Term
Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in accordance with
their respective Applicable Percentage of the Term Facility. Amounts borrowed under this
Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans on the Closing
Date shall be Base Rate Loans and thereafter may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.



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



     2.02. Borrowings, Conversions and Continuations of Loans.



     (a) Each Term Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans or
Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate Loans
shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative Agent not later than
(i) 11:00 a.m. three Business Days prior to the requested date of any Borrowing of, conversion to
or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate
Loans, and (ii) 11:00 a.m. on the requested date of any Borrowing of Base Rate Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Except as provided in Sections 2.03(c) and
2.04(c), each Borrowing of or conversion to Base Rate Loans shall be in a principal amount
of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Borrower is



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requesting a Term Borrowing, a Revolving Credit Borrowing, a conversion of Term Loans or
Revolving Credit Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii)
the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be
a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv)
the Type of Loans to be borrowed or to which existing Term Loans or Revolving Credit Loans are to
be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If
the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to
give a timely notice requesting a conversion or continuation, then the applicable Term Loans or
Revolving Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing
of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month. Notwithstanding anything to the contrary herein, a Swing Line Loan may not be converted to
a Eurodollar Rate Loan.



     (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the
applicable Term Loans or Revolving Credit Loans, and if no timely notice of a conversion or
continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the
details of any automatic conversion to Base Rate Loans described in Section 2.02(a). In
the case of a Term Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make
the amount of its Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section
4.01), the Administrative Agent shall make all funds so received available to the Borrower in
like funds as received by the Administrative Agent either by (i) crediting the account of the
Borrower on the books of Bank of America with the amount of such funds or (ii) wire transfer of
such funds, in each case in accordance with instructions provided to (and reasonably acceptable to)
the Administrative Agent by the Borrower; provided, however, that if, on the date a
Committed Loan Notice with respect to a Revolving Credit Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such Revolving Credit Borrowing,
first, shall be applied to the payment in full of any such L/C Borrowings, and
second, shall be made available to the Borrower as provided above.



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



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



     (e) After giving effect to all Term Borrowings, all conversions of Term Loans from one Type to
the other, and all continuations of Term Loans as the same Type, there shall not be more than 5
Interest Periods in effect in respect of the Term Facility. After giving effect to all Revolving
Credit Borrowings, all conversions of Revolving Credit Loans from one Type to the other, and all
continuations of Revolving Credit Loans as the same Type, there shall not be more than 5 Interest
Periods in effect in respect of the Revolving Credit Facility.



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     2.03. Letters of Credit.



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




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




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




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




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




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




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



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




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




     (E) such Letter of Credit contains any provisions for automatic reinstatement
of the stated amount after any drawing thereunder; or




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




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




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




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



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




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer of the Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least five
Business Days (or such later date and time as the Administrative Agent and the L/C Issuer
may agree in a particular instance in their sole discretion) prior to the proposed issuance
date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C) the expiry
date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full text of any
certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the
purpose and nature of the requested Letter of Credit; and (H) such other matters as the L/C
Issuer may require. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (1) the



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Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall
be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as
the L/C Issuer may require. Additionally, the Borrower shall furnish to the L/C Issuer and
the Administrative Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or
the Administrative Agent may require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Revolving Credit Lender, the Administrative
Agent or the Borrower or any of its Subsidiaries, at least one Business Day prior to the
requested date of issuance or amendment of the applicable Letter of Credit, that one or more
applicable conditions contained in Article IV shall not then be satisfied, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the requested date,
issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary) or
enter into the applicable amendment, as the case may be, in each case in accordance with the
L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each
Letter of Credit, each Revolving Credit Lender shall be deemed to, and hereby irrevocably
and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such
Letter of Credit in an amount equal to the product of such Revolving Credit Lender’s
Applicable Revolving Credit Percentage times the amount of such Letter of Credit.




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month
period to be agreed upon at the time such Letter of Credit is issued. Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been
issued, the Revolving Credit Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the extension of such Letter of Credit at any time to an
expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the L/C Issuer shall not permit any such extension if (A) the L/C
Issuer has determined that it would not be permitted, or would have no obligation at such
time to issue such Letter of Credit in its revised form (as extended) under the terms hereof
(by reason of the provisions of clause (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in writing) on or
before the day that is thirty Business Days before the Non-Extension Notice Date (1) from
the Administrative Agent that the Required Revolving Lenders have elected not to permit such
extension or (2) from the Administrative Agent, any Revolving Credit Lender or the Borrower
that one or more of the applicable conditions specified in Section 4.02 is not then
satisfied, and in each such case directing the L/C Issuer not to permit such extension.




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



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     (c) Drawings and Reimbursements; Funding of Participations.




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




     (ii) Each Revolving Credit Lender shall upon any notice pursuant to Section
2.03(c)(i) make funds available to the Administrative Agent for the account of the L/C
Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Revolving
Credit Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day
specified in such notice by the Administrative Agent, whereupon, subject to the provisions
of Section 2.03(c)(iii), each Revolving Credit Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.




     (iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Revolving Credit Borrowing of Base Rate Loans because the conditions set forth in
Section 4.02 cannot be satisfied or for any other reason, the Borrower shall be
deemed to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable
on demand (together with interest) and shall bear interest at the Default Rate. In such
event, each Revolving Credit Lender’s payment to the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender
in satisfaction of its participation obligation under this Section 2.03.




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




     (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C Issuer, the Borrower or
any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other



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occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Credit Lender’s obligation to make
Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the conditions
set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan
Notice ). No such making of an L/C Advance shall relieve or otherwise impair the obligation
of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C
Issuer under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the greater of the
Federal Funds Rate and a rate determined by the L/C Issuer in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar
fees customarily charged by the L/C Issuer in connection with the foregoing. If such Lender
pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute
such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in
respect of the relevant L/C Borrowing, as the case may be. A certificate of the L/C Issuer
submitted to any Revolving Credit Lender (through the Administrative Agent) with respect to
any amounts owing under this Section 2.03(c)(vi) shall be conclusive absent
demonstrable error.



     (d) Repayment of Participations.




     (i) At any time after the L/C Issuer has made a payment under any Letter of Credit and
has received from any Revolving Credit Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.03(c), if the Administrative Agent receives for
the account of the L/C Issuer any payment in respect of the related Unreimbursed Amount or
interest thereon (whether directly from the Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable Revolving Credit Percentage thereof in the same
funds as those received by the Administrative Agent.




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



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



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




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




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




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




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



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



     (f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Revolving Credit Lenders or the
Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude the Borrower’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under any other agreement.
None of the L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any
correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of
the matters described in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding, the Borrower may
have a claim against the L/C Issuer, and the L/C Issuer may be liable



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to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by the L/C Issuer’s willful misconduct or gross negligence or the L/C Issuer’s willful failure to
pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder.
For purposes of this Section 2.03, Section 2.05 and Section 8.02(c),
“Cash Collateralize” means to pledge and deposit with or deliver to the Administrative
Agent, for the benefit of the L/C Issuer and the Lenders, as collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in form and substance satisfactory to
the Administrative Agent and the L/C Issuer (which documents are hereby consented to by the
Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby grants to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security interest in all
such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash
Collateral shall be maintained in blocked, interest bearing deposit accounts at Bank of America.
If at any time the Administrative Agent determines that any funds held as Cash Collateral are
subject to any right or claim of any Person other than the Administrative Agent or that the total
amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the
Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent,
as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such
aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash
Collateral that the Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral,
such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the L/C
Issuer.



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



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit
equal to the Applicable Rate times the daily amount available to be drawn under such Letter
of Credit. For purposes of computing the daily amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section
1.06. Letter of Credit Fees shall be (i) due and payable on the last Business Day of each
September, December, March and June, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand
and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
upon the request of the



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Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall
accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily
amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the last Business Day of each September, December, March
and June in respect of the most recently-ended quarterly period (or portion thereof, in the case of
the first payment), commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand; provided,
however, that notwithstanding anything to the contrary contained in this paragraph, such
fronting fee shall not be due and payable so long as Bank of America is the sole Lender. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.06. In addition,
the Borrower shall pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the L/C
Issuer relating to letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.



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



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



     2.04. Swing Line Loans.



     (a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing
Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this
Section 2.04, to make loans (each such loan, a “Swing Line Loan”) to the Borrower
from time to time on any Business Day during the Availability Period in an aggregate amount not to
exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that
such Swing Line Loans, when aggregated with the Applicable Revolving Credit Percentage of the
Outstanding Amount of Revolving Credit Loans and L/C Obligations of the Lender acting as Swing Line
Lender, may exceed the amount of such Lender’s Revolving Credit Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total Revolving Credit
Outstandings shall not exceed the Revolving Credit Facility at such time, and (ii) the aggregate
Outstanding Amount of the Revolving Credit Loans of any Revolving Credit Lender at such time,
plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the
Outstanding Amount of all L/C Obligations at such time, plus such Revolving Credit Lender’s
Applicable Revolving Credit Percentage of the Outstanding Amount of all Swing Line Loans at such
time shall not exceed such Lender’s Revolving Credit Commitment, and provided
further that the Borrower shall not use the proceeds of any Swing Line Loan to refinance
any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Borrower may borrow under this Section 2.04, prepay under
Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall
bear interest only at a rate based on the Base Rate. Immediately upon the making of a Swing Line
Loan, each Revolving Credit Lender shall be deemed to, and hereby irrevocably and unconditionally
agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an



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amount equal to the product of such Revolving Credit Lender’s Applicable Revolving Credit
Percentage times the amount of such Swing Line Loan.



     (b) Borrowing Procedures. When applicable, each Swing Line Borrowing shall be made
upon the Borrower’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which
may be given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line
Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Promptly
after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line
Lender will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line
Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof.
Unless the Swing Line Lender has received notice (by telephone or in writing) from the
Administrative Agent (including at the request of any Revolving Credit Lender) prior to 2:00 p.m.
on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make
such Swing Line Loan as a result of the limitations set forth in the first proviso to the first
sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified
in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower.



     (c) Refinancing of Swing Line Loans.




     (i) The Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so
request on its behalf), that each Revolving Credit Lender make a Base Rate Loan in an amount
equal to such Lender’s Applicable Revolving Credit Percentage of the amount of Swing Line
Loans then outstanding. Such request shall be made in writing (which written request shall
be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the
requirements of Section 2.02, without regard to the minimum and multiples specified
therein for the principal amount of Base Rate Loans, but subject to the unutilized portion
of the Revolving Credit Facility and the conditions set forth in Section 4.02. The
Swing Line Lender shall furnish the Borrower with a copy of the applicable Committed Loan
Notice promptly after delivering such notice to the Administrative Agent. Each Revolving
Credit Lender shall make an amount equal to its Applicable Revolving Credit Percentage of
the amount specified in such Committed Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at the Administrative
Agent’s Office not later than 1:00 p.m. on the day specified in such Committed Loan Notice,
whereupon, subject to Section 2.04(c)(ii), each Revolving Credit Lender that so
makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such
amount. The Administrative Agent shall remit the funds so received to the Swing Line
Lender.




     (ii) If for any reason any Swing Line Loan cannot be refinanced by such a Revolving
Credit Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate
Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request
by the Swing Line Lender that each of the Revolving Credit Lenders fund its risk
participation in the relevant Swing Line Loan and each Revolving Credit Lender’s payment to
the Administrative Agent for the account of the Swing Line Lender pursuant to Section
2.04(c)(i) shall be deemed payment in respect of such participation.



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     (iii) If any Revolving Credit Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified
in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such
Lender (acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum equal to the
greater of the Federal Funds Rate and a rate determined by the Swing Line Lender in
accordance with banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Swing Line Lender in connection with
the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the
amount so paid shall constitute such Lender’s Committed Loan included in the relevant
Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may
be. A certificate of the Swing Line Lender submitted to any Lender (through the
Administrative Agent) with respect to any amounts owing under this clause (iii) shall be
conclusive absent demonstrable error.




     (iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, the Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing. No such
funding of risk participations shall relieve or otherwise impair the obligation of the
Borrower to repay Swing Line Loans, together with interest as provided herein.



     (d) Repayment of Participations.




     (i) At any time after any Revolving Credit Lender has purchased and funded a risk
participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account
of such Swing Line Loan, the Swing Line Lender will distribute to such Revolving Credit
Lender its Applicable Revolving Credit Percentage thereof in the same funds as those
received by the Swing Line Lender.




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



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



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



     2.05. Prepayments.



     (a) Optional.




     (i) Subject to the last sentence of this Section 2.05(a)(i), the Borrower may,
upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay
Term Loans and Revolving Credit Loans in whole or in part without premium or penalty;
provided that (A) such notice must be received by the Administrative Agent not later
than (1) 11:00 a.m. three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (2) 11:00 a.m. on any date of prepayment of Base Rate Loans; (B) any prepayment of
Eurodollar Rate Loans shall be in a principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each
case, if less, the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid and,
if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice,
and of the amount of such Lender’s ratable portion of such prepayment (based on such
Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein. Any
prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section
3.05. Each prepayment of the outstanding Term Loans pursuant to this Section
2.05(a) shall be applied to the principal repayment installments thereof in inverse
order of maturity, and each such prepayment shall be paid to the Lenders in accordance with
their respective Applicable Percentages in respect of each of the Term Loan Facility.




     (ii) The Borrower may, upon notice to the Swing Line Lender (with a copy to the
Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans
in whole or in part without premium or penalty; provided that (A) such notice must
be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (B) any such prepayment shall be in a minimum principal
amount of $100,000. Each such notice shall specify the date and amount of such prepayment.
If such notice is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified
therein.



     (b) Mandatory.




     (i) If the Borrower or any of its Subsidiaries Disposes of any property (other than any
Disposition of any property permitted by Section 7.05) which results in the
realization by such Person of Net Cash Proceeds in excess of $250,000 in the aggregate in
any fiscal year of the Borrower, the Borrower shall prepay an aggregate principal amount of
Loans equal to 100% of such Net Cash Proceeds in excess of $250,000 in the aggregate in any
fiscal year of the Borrower immediately upon receipt thereof by such Person;
provided however, that if a Default or Event of Default shall have occurred
and be continuing, the Borrower shall prepay an aggregate principal amount of Loans equal to
100% of any such Net Cash Proceeds realized by such Person with respect to any Disposition
during the continuance thereof immediately upon receipt of such Net



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Cash Proceeds by such Person (any prepayments pursuant to this Section
2.05(b)(i) to be applied as set forth in clauses (vi) and (ix) below);




     (ii) Upon any Extraordinary Receipt received by or paid to or for the account of the
Borrower or any of its Subsidiaries in excess of $250,000 in the aggregate in any fiscal
year of the Borrower, and not otherwise included in this Section 2.05(b), the
Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash
Proceeds in excess of $250,000 in the aggregate in any fiscal year of the Borrower received
therefrom immediately upon receipt thereof by the Borrower or such Subsidiary;
provided however, that if a Default or Event of Default shall have occurred
and be continuing, the Borrower shall prepay an aggregate principal amount of Loans equal to
100% of any such Net Cash Proceeds received by such Person with respect to any such
Extraordinary Receipts during the continuance thereof immediately upon receipt of such Net
Cash Proceeds by such Person (any such prepayments to be applied as set forth in clauses
(iii) and (v) below); and provided, further, however, that with
respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or
indemnity payments, at the election of the Borrower (as notified by the Borrower to the
Administrative Agent on or prior to the date of receipt of such insurance proceeds,
condemnation awards or indemnity payments), and so long as no Default shall have occurred
and be continuing, the Borrower or such Subsidiary may apply within 180 days after the
receipt of such cash proceeds to replace or repair the equipment, fixed assets or real
property in respect of which such cash proceeds were received; and provided,
further, however, that any cash proceeds not so applied shall be immediately
applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).




     (iii) Each prepayment of Loans pursuant to the foregoing provisions of this Section
2.05(b) shall be applied, first, to the Term Facility and to the principal
repayment installments thereof in inverse order of maturity and, second, to the
Revolving Credit Facility in the manner set forth in clause (v) of this Section
2.05(b).




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




     (v) Prepayments of the Revolving Credit Facility made pursuant to this Section
2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing
Line Loans, and second, shall be applied ratably to the outstanding Revolving Credit
Loans, the amount remaining, if any, after the prepayment in full of all L/C Borrowings,
Swing Line Loans and Revolving Credit Loans outstanding at such time may be retained by the
Borrower for use in the ordinary course of its business.



     2.06. Termination or Reduction of Commitments.



     (a) Optional. The Borrower may, upon notice to the Administrative Agent, terminate
the Revolving Credit Facility, the Letter of Credit Sublimit or the Swing Line Sublimit, or from
time to time permanently reduce the Revolving Credit Facility, the Letter of Credit Sublimit or the
Swing Line Sublimit; provided that (i) any such notice shall be received by the
Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination
or reduction, (ii) any such partial reduction shall be in an aggregate amount of $500,000 or any
whole multiple of $100,000 in excess thereof and (iii) the Borrower shall not terminate or reduce
(A) the Revolving Credit Facility if, after giving effect thereto and to any concurrent prepayments
hereunder, the Total Revolving Credit Outstandings would exceed the



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Revolving Credit Facility, (B) the Letter of Credit Sublimit if, after giving effect thereto,
the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the
Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect thereto and to
any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the
Letter of Credit Sublimit.



     (b) Mandatory.




     (i) The aggregate Term Commitments shall be automatically and permanently reduced to
zero on the date of the Term Borrowing.




     (ii) If after giving effect to any reduction or termination of Revolving Credit
Commitments under this Section 2.06, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the Revolving Credit Facility at such time, the Letter of Credit Sublimit
or the Swing Line Sublimit, as the case may be, shall be automatically reduced by the amount
of such excess.



     (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit,
Swing Line Sublimit or the Revolving Credit Commitment under this Section 2.06. Upon any
reduction of the Revolving Credit Commitments, the Revolving Credit Commitment of each Revolving
Credit Lender shall be reduced by such Lender’s Applicable Revolving Credit Percentage of such
reduction amount. All fees in respect of the Revolving Credit Facility accrued until the effective
date of any termination of the Revolving Credit Facility shall be paid on the effective date of
such termination.



     2.07. Repayment of Loans.



     (a) Term Loans. The Borrower shall repay to the Term Lenders a principal repayment of
the Term Loans in an aggregate amount equal to $75,000 on the last Business Day of each of
December, March, June and September of each year that principal of the Term Facility is
outstanding, commencing on December 31, 2008 and continuing until the Maturity Date for the Term
Facility, provided, however, that such amounts shall be reduced as a result of the
application of prepayments in accordance with the order of priority set forth in Section
2.06, and provided, that the final principal repayment installment of the Term
Loans shall be repaid on the Maturity Date for the Term Facility and in any event shall be in an
amount equal to the aggregate principal amount of all Term Loans outstanding on such date.



     (b) Revolving Credit Loans. The Borrower shall repay to the Revolving Credit Lenders
on the Maturity Date for the Revolving Credit Facility the aggregate principal amount of all
Revolving Credit Loans outstanding on such date.



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



     2.08. Interest.



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



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amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate
plus the Applicable Rate for the Revolving Credit Facility.



     (b)




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




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




     (iii) Upon the request of the Required Lenders, while any Event of Default exists, the
Borrower shall pay interest on the principal amount of all outstanding Obligations hereunder
at a fluctuating interest rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.




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



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



     2.09. Fees. In addition to certain fees described in Sections 2.03(i) and (j):



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



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



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     2.10. Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.



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



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



     2.11. Evidence of Debt.



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



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



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     2.12. Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable
Percentage in respect of the relevant Facility (or other applicable share as provided herein) of
such payment in like funds as received by wire transfer to such Lender’s Lending Office. All
payments received by the Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to accrue. If any
payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall
be made on the next following Business Day, and such extension of time shall be reflected on
computing interest or fees, as the case may be.



     (b)




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




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the time at which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Appropriate Lenders or the L/C Issuer,
as the case may be, the amount due. In such event, if the Borrower has not in fact made
such payment,



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then each of the Appropriate Lenders or the L/C Issuer, as the case may be, severally
agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to
such Lender or the L/C Issuer, in immediately available funds with interest thereon, for
each day from and including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.



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



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



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



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



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



     2.13. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any the
Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations in respect of the Facilities due
and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by
all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not
due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but
not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Documents at such time) of payment on account of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and



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under the other Loan Documents at such time obtained by all of the Lenders at such time then
the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such
fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations
in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as
shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably
in accordance with the aggregate amount of Obligations in respect of the Facilities then due and
payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be,
provided that:




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




     (ii) the provisions of this Section shall not be construed to apply to (A) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or subparticipations in L/C Obligations or Swing Line
Loans to any assignee or participant, other than to the Borrower or any Subsidiary thereof
(as to which the provisions of this Section shall apply).



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



     2.14. Increase in Revolving Credit Facility.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Revolving Credit Lenders), the Borrower may
from time to time, request an increase in the Revolving Credit Facility by an amount (for all such
requests) not exceeding $15,000,000; provided that any such request for an increase shall
be in a minimum amount of $5,000,000. At the time of sending such notice, the Borrower (in
consultation with the Administrative Agent) shall specify the time period within which each
Revolving Credit Lender is requested to respond (which shall in no event be less than ten Business
Days from the date of delivery of such notice to the Revolving Credit Lenders).



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



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



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



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower and
each Guarantor dated as of the Revolving Credit Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of the Borrower and each Guarantor (i) certifying and
attaching the resolutions adopted by the Borrower and such Guarantor approving or consenting to
such increase, (ii) in the case of the Borrower, certifying and attaching a Compliance Certificate
demonstrating compliance, on a pro forma basis, with the financial covenants set forth in
Section 7.11 and (iii) in the case of the Borrower, certifying that, before and after
giving effect to such increase, (A) the representations and warranties contained in Article
V and the other Loan Documents are true and correct on and as of the Revolving Credit Increase
Effective Date, except to the extent that such representations and warranties specifically refer to
an earlier date, in which case they are true and correct as of such earlier date, and except that
for purposes of this Section 2.14, the representations and warranties contained in
subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, (B) no
Default exists, and (C) the Borrower is in pro forma compliance with the financial covenants
contained in Section 7.11. The Borrower shall prepay any Revolving Credit Loans
outstanding on the Revolving Credit Increase Effective Date (and pay any additional amounts
required pursuant to Section 3.05) to the extent necessary to keep the outstanding
Revolving Credit Loans ratable with any revised Applicable Revolving Credit Percentages arising
from any nonratable increase in the Revolving Credit Commitments under this Section. The Borrower
shall pay to the Administrative Agent for the pro rata accounts of the participating Lenders a fee
(the “Expansion Fee”) in an amount to be agreed upon between the Administrative Agent and
the Borrower.



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



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01. Taxes.



     (a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes.




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




     (ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Borrower or the Administrative Agent, as
applicable, shall withhold or make such deductions as are determined by the Borrower or
Administrative Agent, as applicable, to be required based upon the information and



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documentation it has received pursuant to subsection (e) below (or lack thereof), (B)
the Borrower or the Administrative Agent shall timely pay the full amount withheld or
deducted to the relevant Governmental Authority in accordance with the Code, and (C) to the
extent that the withholding or deduction is made on account of Indemnified Taxes or Other
Taxes, the sum payable by the Borrower shall be increased as necessary so that after any
required withholding or the making of all required deductions (including deductions
applicable to additional sums payable under this Section) the Administrative Agent, Lender
or L/C Issuer, as the case may be, receives an amount equal to the sum it would have
received had no such withholding or deduction been made.



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



     (c) Tax Indemnifications.




     (i) Without limiting the provisions of subsection (a) or (b) above, the Borrower shall,
and does hereby, indemnify the Administrative Agent, each Lender and the L/C Issuer, and
shall make payment in respect thereof within 10 days after demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section) withheld or
deducted by the Borrower or the Administrative Agent or paid by the Administrative Agent,
such Lender or the L/C Issuer, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto. The Borrower shall also, and
does hereby, indemnify the Administrative Agent, and shall make payment in respect thereof
within 10 days after demand therefor, for any amount which a Lender or the L/C Issuer for
any reason fails to pay indefeasibly to the Administrative Agent as required by clause (ii)
of this subsection. A certificate (in reasonable detail) as to the amount of any such
payment 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 on its own behalf or on behalf of
a Lender or the L/C Issuer, shall be conclusive absent demonstrable error.




     (ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
the L/C Issuer shall, and does hereby, indemnify the Borrower and the Administrative Agent,
and shall make payment in respect thereof within 10 days after demand therefor, against any
and all Taxes and any and all related losses, claims, liabilities, penalties, interest and
expenses (including the fees, charges and disbursements of any counsel for the Borrower or
the Administrative Agent) incurred by or asserted against the Borrower or the Administrative
Agent by any Governmental Authority as a result of the failure by such Lender or the L/C
Issuer, as the case may be, to deliver, or as a result of the inaccuracy, inadequacy or
deficiency of, any documentation required to be delivered by such Lender or the L/C Issuer,
as the case may be, to the Borrower or the Administrative Agent pursuant to subsection (e).
Each Lender and the L/C Issuer hereby authorizes the Borrower or the Administrative Agent to
set off and apply any and all amounts at any time owing to such Lender or the L/C Issuer, as
the case may be, under this Agreement or any other Loan Document against any amount due to
the Borrower or the Administrative Agent under this clause (ii). The agreements in this
clause (ii) shall survive the resignation and/or replacement of the Administrative Agent,
any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the
termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all
other Obligations.



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



     (e) Status of Lenders; Tax Documentation.




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




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




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




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




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




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




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



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




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




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



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



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



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Loans shall be suspended until such Lender notifies the Administrative Agent and the Borrower
that the circumstances giving rise to such determination no longer exist. Upon receipt of such
notice, the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans,
either on the last day of the Interest Period therefor, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully
continue to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion, the
Borrower shall also pay accrued interest on the amount so prepaid or converted.



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



     3.04. Increased Costs; Reserves on Eurodollar Rate Loans.



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




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




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




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


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


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compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or
reduction suffered.




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



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



     (d) Delay in Requests. Failure or delay on the part of any Lender or the L/C Issuer
to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a
waiver of such Lender’s or the L/C Issuer’s right to demand such compensation, provided
that the Borrower shall not be required to compensate a Lender or the L/C Issuer pursuant to the
foregoing provisions of this Section for any increased costs incurred or reductions suffered more
than six months prior to the date that such Lender or the L/C Issuer, as the case may be, notifies
the Borrower of the Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the L/C Issuer’s intention to claim compensation therefor (except that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then the six-month period
referred to above shall be extended to include the period of retroactive effect thereof).



     (e) Reserves on Eurodollar Rate Loans. The Borrower shall pay to each Lender, as long
as such Lender shall be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan
equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by
such Lender in good faith, which determination shall be conclusive), which shall be due and payable
on each date on which interest is payable on such Loan, provided the Borrower shall have
received at least 10 days’ prior notice (with a copy to the Administrative Agent) of such
additional interest from such Lender. If a Lender fails to give notice 10 days prior to the
relevant Interest Payment Date, such additional interest shall be due and payable 10 days from
receipt of such notice.



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




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



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



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


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



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




     3.06. Mitigation Obligations; Replacement of Lenders.



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



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



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



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ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




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




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




     (iii) executed counterparts of the Security Agreement, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower, together with:




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




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




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




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




     (iv) deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages
and leasehold deeds of trust, in substantially the form of Exhibit H (with such
changes as may be satisfactory to the Administrative Agent and its counsel to account for
local law matters) and covering the Mortgaged Property (together with the Assignments of
Leases and Rents referred to therein, the “Mortgage”), duly executed by the
Borrower, together with:




     (A) evidence that counterparts of the Mortgage have been duly executed,
acknowledged and delivered and are in form suitable for filing or recording in all
filing or recording offices that the Administrative Agent may deem necessary or
desirable in order to create a valid first and subsisting Lien on the property
described therein in favor of the



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Administrative Agent for the benefit of the Secured Parties and that all
filing, documentary, stamp, intangible and recording taxes and fees have been paid,




     (B) fully paid American Land Title Association Lender’s Extended Coverage title
insurance policies (the “Mortgage Policies”), with endorsements and coverage
in an amount equal to the original principal amount of the Term Loan (i.e.,
$6,000,000), issued, coinsured and reinsured by title insurers acceptable to the
Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens
on the property described therein, free and clear of all defects (including, but not
limited to, mechanics’ and materialmen’s Liens) and encumbrances, excepting only
Permitted Encumbrances and other Liens permitted under the Loan Documents, and
providing for such other affirmative insurance (including endorsements for future
advances under the Loan Documents, for mechanics’ and materialmen’s Liens and for
zoning of the applicable property) and such coinsurance and direct access
reinsurance as the Administrative Agent may deem necessary or desirable,




     (C) American Land Title Association/American Congress on Surveying and Mapping
form surveys, for which all necessary fees (where applicable) have been paid, and
dated no more than 30 days before the day of the initial Credit Extension, certified
to the Administrative Agent and the issuer of the Mortgage Policies in a manner
satisfactory to the Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such surveys is located
and acceptable to the Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and other dimensional regulations and
the absence of encroachments, either by such improvements or on to such property,
and other defects, other than encroachments and other defects acceptable to the
Administrative Agent,




     (D) evidence of the insurance required by the terms of the Mortgage,




     (E) an appraisal of the Mortgaged Property, which appraisal shall comply with
the requirements of the Federal Financial Institutions Reform, Recovery and
Enforcement Act of 1989, which appraisal shall be from a Person acceptable to the
Administrative Agent,




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




     (I) an environmental assessment report from an environmental consulting firm,
and in form and substance, acceptable to the Administrative Agent;




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




     (vi) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of the Borrower as the Administrative Agent may



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require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which the Borrower is a party or is to be a party;




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




     (viii) a favorable opinion of Goodwin Procter LLP, counsel to the Borrower, addressed
to the Administrative Agent and each Lender, as to the matters set forth in Exhibit
J-1 and such other matters concerning the Borrower and the Loan Documents as the
Required Lenders may reasonably request;




     (ix) a favorable opinion of Pierce Atwood LLP, Maine real estate counsel to the
Borrower, addressed to the Administrative Agent and each Lender, as to the matters set forth
in Exhibit J-2 and such other matters concerning the Borrower and the Loan Documents
as the Required Lenders may reasonably request;




     (x) a certificate of a Responsible Officer of the Borrower stating that no consents,
licenses or approvals are required in connection with the execution, delivery and
performance by the Borrower and the validity against the Borrower of the Loan Documents to
which it is a party;




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




     (xii) certificates attesting to the Solvency of the Borrower as of the Closing Date,
from its chief financial officer;




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




     (xiv) evidence, including, without limitation, payoff letters and UCC termination
statements, that the Borrower’s financing arrangements with Silicon Valley Bank have been,
or concurrently with the Closing Date are being, terminated and all Liens securing
obligations under such financing arrangements have been, or concurrently with the Closing
Date are being, released; and




     (xv) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent reasonably may require.



     (b) The Administrative Agent shall have received all requested due diligence materials.



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     (c) The Administrative Agent shall be satisfied that no adverse Change in Law affecting the
Borrower, the Administrative Agent or the Lenders shall have occurred that (i) would adversely
affect the ability of the Borrower to conduct their business or any business substantially related
to or incidental thereto in substantially the same manner as they have done so prior to the date
hereof, or (ii) in the reasonable opinion of the Administrative Agent or any Lender would make it
illegal for the Administrative Agent or any such Lender to make Loans or to participate in the
issuance, extension or renewal of Letters of Credit or in the reasonable opinion of the L/C Issuer
would make it illegal for the L/C Issuer to issue, extend or renew such Letters of Credit.



     (d) On or before the Closing Date, the Borrower shall have paid (i) all fees required to be
paid to the Administrative Agent (including, without limitation, all appraisal fees and field exam
fees), (ii) all fees required to be paid to the Lenders and (iii) unless waived by the
Administrative Agent, all fees, charges and disbursements of counsel to the Administrative Agent
(directly to such counsel if requested by the Administrative Agent) to the extent invoiced prior to
or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as
shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate shall not
thereafter preclude a final settling of accounts between the Borrower and the Administrative
Agent).


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




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



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



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



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



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



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ARTICLE V.

REPRESENTATIONS AND WARRANTIES




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



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



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



     5.03. Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with (a) the execution, delivery or performance
by, or enforcement against, the Borrower or any of its Subsidiaries of this Agreement or any other
Loan Document to which it is a party, (b) the grant by the Borrower or any of its Subsidiaries of
the Liens granted by it pursuant to the Collateral Documents, (c) the perfection or maintenance of
the Liens created under the Collateral Documents (including the first priority nature thereof) or
(d) the exercise by the Administrative Agent or any Lender of its rights under the Loan Documents
or the remedies in respect of the Collateral pursuant to the Collateral Documents.



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



     5.05. Financial Statements; No Material Adverse Effect.



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



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     (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated June
30, 2008, and the related consolidated statements of income or operations, shareholders’ equity and
cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise expressly noted
therein, and (ii) fairly present the financial condition of the Borrower and its Subsidiaries as of
the date thereof and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.
Schedule 5.05 sets forth all material indebtedness and other liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the date of such financial
statements, including liabilities for taxes, material commitments and Indebtedness.



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



     (d) The consolidated forecasted balance sheets, statements of income and cash flows of the
Borrower and its Subsidiaries as delivered to the Administrative Agent on or prior to the Closing
Date or pursuant to Section 6.01(c) were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were reasonable in light of the conditions existing
at the time of delivery of such forecasts, and represented, at the time of delivery, the Borrower’s
good faith estimate of its future financial condition and performance.



     5.06. Litigation. Except as set forth on Schedule 5.06, there are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Borrower after due
investigation, overtly threatened, at law, in equity, in arbitration or before any Governmental
Authority, by or against the Borrower or any of its Subsidiaries or against any of their properties
or revenues that (a) purport to affect or pertain to this Agreement, any other Loan Document, any
Related Document or the consummation of the Transaction, or (b) either individually or in the
aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.



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



     5.08. Ownership of Property; Liens; Investments.



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



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



     (c) Schedule 5.08(c) sets forth a complete and accurate list of all real property with
a fair market value in excess of $1,000,000 owned by the Borrower and each of its Subsidiaries,
showing as of the date hereof the street address, county or other relevant jurisdiction, state,
record owner and book and



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fair value thereof. Each of the Borrower and its Subsidiaries has good, marketable and
insurable fee simple title to the real property owned by the Borrower or such Subsidiary, free and
clear of all Liens, other than Liens created or permitted by the Loan Documents.



     (d) (i) Schedule 5.08(d)(i) sets forth a complete and accurate list of all leases of
real property with a fair market value in excess of $1,000,000 under which the Borrower and its
Subsidiaries is the lessee, showing as of the date hereof the street address, county or other
relevant jurisdiction, state, lessor, lessee, expiration date and annual rental cost thereof. Each
such lease is the legal, valid and binding obligation of the lessor thereof, enforceable in
accordance with its terms.




     (ii) Schedule 5.08(d)(ii) sets forth a complete and accurate list of all leases
of real property with a fair market value in excess of $1,000,000 under which the Borrower
or any of its Subsidiaries is the lessor, showing as of the date hereof the street address,
county or other relevant jurisdiction, state, lessor, lessee, expiration date and annual
rental cost thereof. Each such lease is the legal, valid and binding obligation of the
lessee thereof, enforceable in accordance with its terms.



     (e) Schedule 5.08(e) sets forth a complete and accurate list of all Investments held
by the Borrower or any of its Subsidiaries on the date hereof, showing as of the date hereof the
amount, obligor or issuer and maturity, if any, thereof.



     5.09. Environmental Compliance.



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



     (b) None of the properties currently or formerly owned or operated by Borrower or any of its
Subsidiaries is listed or proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; there are no and never have been
any underground or above-ground storage tanks or any surface impoundments, septic tanks, pits,
sumps or lagoons in which Hazardous Materials are being or have been treated, stored or disposed on
any property currently owned or operated by the Borrower or any of its Subsidiaries or, to the
knowledge of the Borrower or any of its Subsidiaries, on any property formerly owned or operated by
the Borrower or any of its Subsidiaries; there is no asbestos or asbestos-containing material on
any property currently owned or operated by the Borrower or any of its Subsidiaries; and Hazardous
Materials have not been released, discharged or disposed of on any property currently or formerly
owned or operated by the Borrower or any of its Subsidiaries.



     (c) Neither the Borrower nor any of its Subsidiaries is undertaking, and has not completed,
either individually or together with other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any actual or threatened release, discharge
or disposal of Hazardous Materials at any site, location or operation, either voluntarily or
pursuant to the order of any Governmental Authority or the requirements of any Environmental Law;
and all Hazardous Materials generated, used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by the Borrower or any of its
Subsidiaries have been disposed of in a manner not reasonably expected to result in material
liability to the Borrower or any of its Subsidiaries.



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     5.10. Insurance. The properties of the Borrower and its Subsidiaries are insured with
companies having an A.M. Best Rating of at least A-IX and that are not Affiliates of the Borrower,
and in such amounts, with such deductibles and covering such risks as are customarily carried by
companies engaged in similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates.



     5.11. Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports required to be filed, and have paid all Federal, state and other
material taxes, assessments, fees and other governmental charges levied or imposed upon them or
their properties, income or assets otherwise due and payable, except those which are being
contested in good faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. There is no proposed tax assessment against
the Borrower or any Subsidiary that would, if made, have a Material Adverse Effect. Neither the
Borrower nor any of its Subsidiaries is party to any tax sharing agreement.



     5.12. ERISA Compliance.



     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination or opinion letter from the IRS
covering all tax law changes prior to the Economic Growth and Tax Relief Reconciliation Act of 2001
(“EGTRRA”), and has either made timely application to the IRS for a favorable determination or
opinion letter (upon which the sponsor is entitled to rely) covering tax law changes effected by
EGTRRA or remains within the applicable EGTRRA remedial amendment period under Section 401(b) of
the Code and IRS Revenue Procedure 2007-44, and, to the best knowledge of the Borrower, nothing has
occurred which would prevent, or cause the loss of, such qualification. The Borrower, each of its
Subsidiaries and each ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code or Section 302 of ERISA, and no application for a funding waiver or an
extension of any amortization period pursuant to Section 412 or 431 of the Code or Section 302 or
304 of ERISA has been made with respect to any Plan.



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



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



     (d) With respect to each scheme or arrangement mandated by a government other than the United
States (a “Foreign Government Scheme or Arrangement”) and with respect to each employee
benefit plan maintained or contributed to by the Borrower or any of its Subsidiaries that is not
subject to United States law (a “Foreign Plan”):



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




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




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



     5.13. Subsidiaries; Equity Interests. The Borrower has no Subsidiaries other than those
specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity
Interests in such Subsidiaries have been validly issued, are fully paid and non-assessable (other
than for directors’ qualifying shares of a Foreign Subsidiary to the extent required by applicable
Law) and are owned by the Borrower or its Subsidiaries in the amounts specified on Part (a) of
Schedule 5.13 free and clear of all Liens except those created under the Collateral
Documents. The Borrower has no equity investments in any other corporation or entity other than
those specifically disclosed in Part (b) of Schedule 5.13. All of the outstanding Equity
Interests in the Subsidiaries of the Borrower have been validly issued, are fully paid and
non-assessable (other than for directors’ qualifying shares of a Foreign Subsidiary to the extent
required by applicable Law) and are owned by the Borrower in the amounts specified on Part (c) of
Schedule 5.13 free and clear of all Liens except those created under the Collateral
Documents. Set forth on Part (d) of Schedule 5.13 is a complete and accurate list of the
Borrower and its Subsidiaries, showing as of the Closing Date (as to the Borrower and each
Subsidiary) the jurisdiction of its incorporation, the address of its principal place of business
and its U.S. taxpayer identification number or, in the case of any Subsidiary that does not have a
U.S. taxpayer identification number, its unique identification number issued to it by the
jurisdiction of its incorporation. The copy of the charter of the Borrower and each of its
Subsidiaries and each amendment thereto provided pursuant to Section 4.01(a)(vii) is a true
and correct copy of each such document, each of which is valid and in full force and effect.



     5.14. Margin Regulations; Investment Company Act.



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



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



     5.15. Disclosure. The Borrower has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries
is subject, and all other matters known to it, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. No written report, financial
statement, certificate or other information furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender in connection with the transactions
contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other
Loan Document (in each case as modified or supplemented by and when taken together with other
information so furnished) contains any material misstatement of fact or



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omits to state any material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.



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



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



     5.18. Solvency. The Borrower and its Subsidiaries, on a consolidated basis, are Solvent.



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



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



     5.21. Collateral Documents. The provisions of the Collateral Documents are effective to
create in favor of the Administrative Agent for the benefit of the Secured Parties a legal, valid
and enforceable first priority Lien (subject to Liens permitted by Section 7.01) on all
right, title and interest of the Borrower and its respective Subsidiaries in the Collateral
described therein. Except for filings completed prior to the Closing Date and as contemplated
hereby and by the Collateral Documents, no filing or other action will be necessary to perfect or
protect such Liens.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than Contingent Indemnity Obligations) shall remain unpaid or unsatisfied, or any
Letter



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of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the
covenants set forth in Sections 6.01, 6.02, 6.03 and 6.11) cause
each Subsidiary to:



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



     (a) as soon as available, but in any event within 90 days after the end of each fiscal year of
the Borrower (commencing with the fiscal year ended December 31, 2008), a consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, changes in shareholders’ equity, and cash flows
for such fiscal year, setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated
statements to be audited and accompanied by a report and opinion of Deloitte & Touche LLP, Ernst &
Young, PricewaterhouseCoopers, KPMG or another independent certified public accountant of
nationally recognized standing meeting the standards set forth by the Public Company Accounting
Oversight Board and reasonably acceptable to the Administrative Agent, which report and opinion
shall be prepared in accordance with generally accepted auditing standards and shall not be subject
to any “going concern” or like qualification or exception or any qualification or exception as to
the scope of such audit;



     (b) as soon as available, but in any event within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower (commencing with the fiscal quarter ended
September 30, 2008), a consolidated balance sheet of the Borrower and its Subsidiaries as at the
end of such fiscal quarter, and the related consolidated statements of income or operations,
changes in shareholders’ equity, and cash flows for such fiscal quarter and for the portion of the
Borrower’s fiscal year then ended, setting forth in each case in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the
chief executive officer, chief financial officer, treasurer or controller of the Borrower as fairly
presenting in all material respects the financial condition, results of operations, shareholders’
equity and cash flows of the Borrower and its Subsidiaries as of the date thereof in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes; and



     (c) as soon as available, but in any event at least 90 days after the end of each fiscal year
of the Borrower, an annual business plan and budget of the Borrower and its Subsidiaries on a
consolidated basis, including forecasts prepared by management of the Borrower, in form reasonably
satisfactory to the Administrative Agent and the Required Lenders, of consolidated balance sheets
and statements of income or operations and cash flows of the Borrower and its Subsidiaries on a
quarterly basis for the immediately following fiscal year (including the fiscal year in which the
Maturity Date for the Term Facility occurs).


As to any information contained in materials furnished pursuant to Section 6.02(c), the
Borrower shall not be separately required to furnish such information under Section 6.01(a)
or (b) above, but the foregoing shall not be in derogation of the obligation of the
Borrower to furnish the information and materials described in Sections 6.01(a) and
(b) above at the times specified therein.




     6.02. Certificates; Other Information. Deliver to the Administrative Agent (and, in the event
that the Administrative Agent may not use the Platform for delivery to the Lenders, deliver to the
Administrative Agent and each Lender), in form and detail reasonably satisfactory to the
Administrative Agent:



     (a) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b) (commencing with the delivery of the financial statements for the
fiscal quarter ended September



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30, 2008), a duly completed Compliance Certificate signed by the chief executive officer,
chief financial officer, treasurer or controller of the Borrower;


     (b) promptly after any request by the Administrative Agent, copies of any detailed audit
reports or recommendations submitted to the board of directors (or the audit committee of the board
of directors) of the Borrower by independent accountants in connection with the accounts or books
of the Borrower and its Subsidiaries, or any audit of any of them;



     (c) promptly after the same are available, copies of each annual report, proxy or financial
statement, management letter or other report or communication sent to the stockholders of the
Borrower, and copies of all annual, regular, periodic and special reports and registration
statements which the Borrower may file or be required to file with the SEC under Section 13 or
15(d) of the Securities Exchange Act of 1934, or with any national securities exchange, and in any
case not otherwise required to be delivered to the Administrative Agent pursuant hereto;



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



     (e) as soon as available, but in any event within 10 days after the end of each fiscal year of
the Borrower (or earlier if such insurance coverage expires and is renewed prior thereto), the
current insurance binders in respect of the insurance coverage (specifying type, amount, carrier
and naming the Administrative Agent, on behalf of the Lenders, as an additional insured or loss
payee, as the case may be) in effect for the Borrower and each of its Subsidiaries and containing
such additional information as the Administrative Agent, or any Lender through the Administrative
Agent, may reasonably specify;



     (f) promptly, and in any event within five Business Days after receipt thereof by the Borrower
or any of its Subsidiaries thereof, copies of each notice or other correspondence received from the
SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or
other inquiry by such agency regarding financial or other operational results of the Borrower or
any of its Subsidiaries and where the nature or results of such investigation or other inquiry is
likely to result in a Material Adverse Effect;



     (g) not later than five Business Days after receipt thereof by the Borrower or any of its
Subsidiaries, copies of all notices, requests and other documents (including amendments, waivers
and other modifications) so received under or pursuant to any instrument, indenture, loan or credit
or similar agreement;



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



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



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered



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



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



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



     (a) of the occurrence of any Default;



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



     (c) of the occurrence of any ERISA Event;



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     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any of its Subsidiaries, including any determination by the Borrower referred to in
Section 2.10(b); and



     (e) of the (i) occurrence of any Disposition of property or assets for which the Borrower is
required to make a mandatory prepayment pursuant to Section 2.05(b)(i) and (ii) receipt of
any Extraordinary Receipt for which the Borrower is required to make a mandatory prepayment
pursuant to Section 2.05(b)(ii).



     Each notice pursuant to Section 6.03 (other than Section 6.03(e)) shall be
accompanied by a statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken and proposes to take
with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with
particularity any and all provisions of this Agreement and any other Loan Document that have been
breached.



     6.04. Payment of Obligations. Pay and discharge as the same shall become due and payable, all
its obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness.



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



     6.06. Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and
replacements thereof except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation
and maintenance of its facilities.



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



     6.08. Compliance with Laws. Comply in all material respects with the requirements of all Laws
and all orders, writs, injunctions and decrees applicable to it or to its business or property,
except in such instances in which (a) such requirement of Law or order, writ, injunction or decree
is being



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contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to
comply therewith could not reasonably be expected to have a Material Adverse Effect.



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



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



     6.11. Use of Proceeds. (a) Use the proceeds of the Revolving Credit Facility to refinance
existing Indebtedness, consummate Permitted Acquisitions and for working capital and other general
corporate purposes not in contravention of any Law or of any Loan Document and (b) use the proceeds
of the Term Facility for (i) reimbursement of the Borrower for the purchase price paid by the
Borrower for the acquisition of the Mortgaged Property and (ii) related Capital Expenditures in
connection with improvements thereon.



     6.12. Covenant to Guarantee Obligations and Give Security.



     (a) Upon the formation or acquisition of any new direct or indirect Subsidiary (other than any
CFC or a Subsidiary that is held directly or indirectly by a CFC), by the Borrower or any of its
Domestic Subsidiaries, which, in each case, shall be wholly-owned by the Borrower or any of its
Domestic Subsidiaries, then the Borrower shall, at the Borrower’s expense:




     (i) within 20 days after such formation or acquisition, cause such Subsidiary, and
cause each direct and indirect parent of such Subsidiary (if it has not already done so), to
duly execute and deliver to the Administrative Agent a guaranty or guaranty supplement, in
form and substance reasonably satisfactory to the Administrative Agent, guaranteeing the
Borrower’s and other Subsidiaries’ obligations under the Loan Documents,




     (ii) within 20 days after such formation or acquisition, furnish to the Administrative
Agent a description of the real and personal properties of such Subsidiary, in detail
reasonably satisfactory to the Administrative Agent,




     (iii) within 30 days after such formation or acquisition, cause such Subsidiary and
each direct and indirect parent of such Subsidiary (if it has not already done so) to duly
execute and deliver to the Administrative Agent deeds of trust, trust deeds, deeds to secure
debt, Mortgages, leasehold Mortgages, leasehold deeds of trust, Security Agreement
Supplements, IP Security Agreement Supplements, subordination agreements and other security
and pledge agreements, as reasonably specified by and in form and substance reasonably
satisfactory to the Administrative Agent (including delivery of all certificates or
instruments representing Pledged Equity and Pledged Debt, as applicable, in and of such
Subsidiary, accompanied by undated stock



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powers executed in blank and instruments evidencing the Pledged Debt indorsed in
blank), securing payment of all the Obligations of such Subsidiary or such parent, as the
case may be, under the Loan Documents and constituting Liens on all such real and personal
properties,




     (iv) within 45 days after such formation or acquisition, cause such Subsidiary and each
direct and indirect parent of such Subsidiary (if it has not already done so) to take
whatever action (including the recording of Mortgages, the filing of Uniform Commercial Code
financing statements, the giving of notices and the endorsement of notices on title
documents) may be necessary in the opinion of the Administrative Agent to vest in the
Administrative Agent (or in any representative of the Administrative Agent designated by it)
valid and subsisting Liens on the properties purported to be subject to the deeds of trust,
trust deeds, deeds to secure debt, Mortgages, leasehold Mortgages, leasehold deeds of trust,
Security Agreement Supplements, IP Security Agreement Supplements and security and pledge
agreements delivered pursuant to this Section 6.12, enforceable against all third
parties in accordance with their terms,




     (v) within 60 days after such formation or acquisition, deliver to the Administrative
Agent, upon the request of the Administrative Agent in its sole discretion, a signed copy of
a favorable opinion, addressed to the Administrative Agent and the other Secured Parties, of
counsel for the Borrower and its Subsidiaries identified in Sections 4.01(a)(viii)
or (ix) or otherwise reasonably acceptable to the Administrative Agent as to the
matters contained in clauses (i), (iii) and (iv) above, and as to such other matters as the
Administrative Agent may reasonably request, and




     (vi) as promptly as practicable after such formation or acquisition, deliver, upon the
request of the Administrative Agent in its sole discretion, to the Administrative Agent with
respect to each parcel of real property owned or held by the entity that is the subject of
such formation or acquisition appraisals, title reports, surveys and engineering, soils and
other reports, and environmental assessment reports, each in scope, form and substance
satisfactory to the Administrative Agent, provided, however, that to the
extent that the Borrower or any of its Subsidiaries shall have otherwise received any of the
foregoing items with respect to such real property, such items shall, promptly after the
receipt thereof, be delivered to the Administrative Agent.



     Notwithstanding anything to the contrary contained in this Agreement, (w) only sixty-five
percent (65%) of the capital stock of any CFC shall be required to be pledged to the Administrative
Agent on behalf of the Lenders under this Agreement or the Security Agreement and (x) the formation
or acquisition of any new direct or indirect Subsidiary that is or will become a Foreign
Subsidiary, by the Borrower or any of its Domestic Subsidiaries, shall require the written consent
of the Administrative Agent and the Required Lenders. Subject to any relevant restrictions or
limitations imposed by applicable Law, upon (y) the receipt of such written consent by the
Administrative Agent and the Required Lenders and (z) the request of the Administrative Agent, the
Borrower shall execute and deliver, and shall cause such Foreign Subsidiary to execute and deliver,
any and all further instruments and documents and take all such other action as the Administrative
Agent may deem necessary or desirable under this Section 6.12(a) in order to secure all the
Obligations.



     (b) Upon the acquisition of any property by the Borrower or any of its Subsidiaries, if such
property, in the judgment of the Administrative Agent, shall not already be subject to a perfected
first priority security interest in favor of the Administrative Agent for the benefit of the
Secured Parties, then the Borrower shall, at the Borrower’s expense:



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     (i) within 20 days after such acquisition, furnish to the Administrative Agent a
description of the property so acquired in detail reasonably satisfactory to the
Administrative Agent,




     (ii) within 30 days after such acquisition, duly execute and deliver, or cause the
applicable Subsidiary to duly execute and deliver, to the Administrative Agent deeds of
trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of
trust, Security Agreement Supplements, IP Security Agreement Supplements. subordination
agreements and other security and pledge agreements, as reasonably specified by and in form
and substance reasonably satisfactory to the Administrative Agent, securing payment of all
the Obligations of the Borrower or the applicable Subsidiary under the Loan Documents and
constituting Liens on all such properties,




     (iii) within 45 days after such acquisition, take, or cause the applicable Subsidiary
to take, whatever action (including the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the endorsement of notices
on title documents) may be necessary in the opinion of the Administrative Agent to vest in
the Administrative Agent (or in any representative of the Administrative Agent designated by
it) valid and subsisting Liens on such property, enforceable against all third parties,




     (iv) within 60 days after such acquisition, deliver to the Administrative Agent, upon
the request of the Administrative Agent in its sole discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for
the Borrower and its Subsidiaries identified in Sections 4.01(a)(viii) or
(ix) or otherwise reasonably acceptable to the Administrative Agent as to the
matters contained in clauses (ii) and (iii) above and as to such other matters as the
Administrative Agent may reasonably request, and




     (v) as promptly as practicable after any acquisition of a real property, deliver, upon
the request of the Administrative Agent in its sole discretion, to the Administrative Agent
with respect to such real property appraisals, title reports, surveys and engineering, soils
and other reports, and environmental assessment reports, each in scope, form and substance
satisfactory to the Administrative Agent, provided, however, that to the
extent that the Borrower or any of its Subsidiaries shall have otherwise received any of the
foregoing items with respect to such real property, such items shall, promptly after the
receipt thereof, be delivered to the Administrative Agent,



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




     (i) within 15 days after such request, furnish to the Administrative Agent a
description of the real and personal properties of the Borrower and its Subsidiaries in
detail satisfactory to the Administrative Agent,




     (ii) within 20 days after such request, duly execute and deliver, and cause each
Subsidiary (other than any CFC or a Subsidiary that is held directly or indirectly by a CFC)
of the Borrower (if it has not already done so) to duly execute and deliver, to the
Administrative Agent deeds of trust, trust deeds, deeds to secure debt, mortgages, leasehold
mortgages, leasehold deeds of trust, Security Agreement Supplements, IP Security Agreement
Supplements, subordination agreements and other security and pledge agreements, as specified
by and in form and substance satisfactory to the Administrative Agent (including delivery of
all Pledged Equity and Pledged Debt in and of such Subsidiary, accompanied by undated stock
powers executed in blank and



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instruments evidencing the Pledged Debt indorsed in blank), securing payment of all the
Obligations of such Subsidiary under the Loan Documents and constituting Liens on all such
properties,




     (iii) within 30 days after such request, take, and cause each Subsidiary (other than
any CFC or a Subsidiary that is held directly or indirectly by a CFC) of the Borrower to
take, whatever action (including the recording of mortgages, the filing of Uniform
Commercial Code financing statements, the giving of notices and the endorsement of notices
on title documents) may be necessary in the opinion of the Administrative Agent to vest in
the Administrative Agent (or in any representative of the Administrative Agent designated by
it) valid and subsisting Liens on the properties purported to be subject to the deeds of
trust, trust deeds, deeds to secure debt, mortgages, leasehold mortgages, leasehold deeds of
trust, Security Agreement Supplements, IP Security Agreement Supplements and security and
pledge agreements delivered pursuant to this Section 6.12, enforceable against all
third parties in accordance with their terms,




     (iv) within 60 days after such request, deliver to the Administrative Agent, upon the
request of the Administrative Agent in its sole discretion, a signed copy of a favorable
opinion, addressed to the Administrative Agent and the other Secured Parties, of counsel for
the Borrower and its Subsidiaries identified in Sections 4.01(a)(viii) or
(ix) or otherwise reasonably acceptable to the Administrative Agent as to the
matters contained in clauses (ii) and (iii) above, and as to such other matters as the
Administrative Agent may reasonably request, and




     (v) as promptly as practicable after such request, deliver, upon the request of the
Administrative Agent in its sole discretion, to the Administrative Agent with respect to
each parcel of real property owned or held by the Borrower and its Subsidiaries, appraisals,
title reports, surveys and engineering, soils and other reports, and environmental
assessment reports, each in scope, form and substance satisfactory to the Administrative
Agent, provided, however, that to the extent that the Borrower or any of its
Subsidiaries shall have otherwise received any of the foregoing items with respect to such
real property, such items shall, promptly after the receipt thereof, be delivered to the
Administrative Agent.



     (d) At any time upon request of the Administrative Agent, promptly execute and deliver any and
all further instruments and documents and take all such other action as the Administrative Agent
may deem necessary or desirable in obtaining the full benefits of, or (as applicable) in perfecting
and preserving the Liens of, such guaranties, deeds of trust, trust deeds, deeds to secure debt,
mortgages, leasehold mortgages, leasehold deeds of trust, Security Agreement Supplements, IP
Security Agreement Supplements and other security and pledge agreements consistent with the prior
provisions of this Section 6.12.



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



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     6.14. Preparation of Environmental Reports. At the request of the Required Lenders from time
to time, provide to the Lenders within 60 days after such request, at the expense of the Borrower,
an environmental site assessment report for any of its properties described in such request,
prepared by an environmental consulting firm acceptable to the Administrative Agent, indicating the
presence or absence of Hazardous Materials and the estimated cost of any compliance, removal or
remedial action in connection with any Hazardous Materials on such properties; without limiting the
generality of the foregoing, if the Administrative Agent determines at any time that a material
risk exists that any such report will not be provided within the time referred to above, the
Administrative Agent may retain an environmental consulting firm to prepare such report at the
expense of the Borrower, and the Borrower hereby grants and agrees to cause any Subsidiary that
owns any property described in such request to grant at the time of such request to the
Administrative Agent, the Lenders, such firm and any agents or representatives thereof an
irrevocable non-exclusive license, subject to the rights of tenants, to enter onto their respective
properties to undertake such an assessment.



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



     6.16. Compliance with Terms of Leaseholds. Make all payments and otherwise perform all
obligations in respect of all leases of real property to which the Borrower or any of its
Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not be reasonably likely to have a Material Adverse Effect.



     6.17. Interest Rate Hedging. No later than a date that is 90 days after the Closing Date,
enter into and maintain at all times thereafter, interest rate Swap Contracts with Persons
acceptable to the Administrative Agent, covering a notional amount of not less than 50% of the
aggregate outstanding amount of the Term Loans, on terms reasonably satisfactory to the
Administrative Agent.



     6.18. Access Agreement; Landlord Waiver and Consent Agreements. No later than a date that is
thirty (30) days after the Closing Date, enter into an access agreement or a landlord waiver and
consent agreement, in form and substance satisfactory to the Administrative Agent, with respect to
real property leased by the Borrower located at 311 Arsenal Street, Watertown, Massachusetts 02472,
duly executed by each lessor of such real property. The Borrower shall, and shall cause each of
its Subsidiaries to, obtain landlords’ and bailees’ waiver and consent agreements and/or access
agreements, in each case, in form and substance satisfactory and at the discretion of the
Administrative Agent, with



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respect to all other real property leased by the Borrower or any of its Subsidiaries, duly
executed by each lessor of such real property.



     6.19. Cash Management.



     (a) No later than a date that is 180 days after the Closing Date, maintain, and, if
applicable, cause each of its Subsidiaries to maintain, with Bank of America, each of its principal
domestic accounts (including, without limitation, its concentration accounts) for operation,
administration, cash management, and the conduct of the Borrower’s and such Subsidiary’s business.



     (b) Deposit all Net Cash Proceeds received by the Borrower or any of its Subsidiaries from
any Disposition (other than any Disposition of any property permitted by Section 7.05) in
a deposit account that is a Control Account maintained at Bank of America. Such Net Cash Proceeds
shall be applied to prepay the Outstanding Amount of Loans in accordance with Section
2.05(b).



     (c) From and after the occurrence and during the continuance of an Event of Default and the
receipt of a notice (an “Activation Notice”) from the Administrative Agent, (i) pursuant
to each Deposit Account Control Agreement, require wire transfer at the request and option of the
Administrative Agent, no less frequently than once per Business Day of all available cash balances
and cash receipts of each Control Account to an account maintained with the Administrative Agent
(the “Collection Account”), and (ii) the Borrower shall, at the request and option of the
Administrative Agent, enter into a lockbox arrangement with the Administrative Agent (reasonably
satisfactory to the Administrative Agent) and notify each account debtor and other persons
obligated on any Receivables that payment thereof is to be made directly to a lockbox under the
sole control of the Administrative Agent or any other financial institution designated by the
Administrative Agent as the Administrative Agent’s agent therefor. All amounts received by the
Administrative Agent pursuant to this Section 6.19(c) shall be applied to prepay the
Obligations in accordance with Section 8.03. The Borrower shall not, and shall not permit
any of their Subsidiaries to, cause proceeds of any Control Account or any Receivables, as the
case may be, to be otherwise redirected.



     6.20. Securities Account Control Agreement. No later than a date that is seven (7) days after
the Closing Date, deliver to the Administrative Agent a fully executed Securities Account Control
Agreement by and among the Borrower, the Administrative Agent, Capital Advisors Group, Inc., as
investment manager, and State Street Bank and Trust Company, as securities intermediary.



     6.21. Pro Forma Compliance Certificate. Not later than October 17, 2008, the Borrower shall
deliver to the Administrative Agent a duly completed pro forma Compliance Certificate dated as of
such date, signed by the chief executive officer, chief financial officer, treasurer or controller
of the Borrower demonstrating (A) the Consolidated Fixed Charge Coverage Ratio of the Borrower for
the Measurement Period ended September 30, 2008 is greater than or equal to 1.35 : 1.00 and (B) the
Consolidated Leverage Ratio of the Borrower for the Measurement Period ended September 30, 2008 is
less than or equal to 0.50 : 1.00. Notwithstanding the definition of Applicable Rate, the delivery
of the pro forma Compliance Certificate on such date may require adjustment based on the table set
forth in the definition of Applicable Rate.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder (other than Contingent Indemnity Obligations) shall remain
unpaid or unsatisfied, or any Letter



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of Credit shall remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary
to, directly or indirectly:



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



     (a) Liens pursuant to any Loan Document;



     (b) Liens existing on the date hereof and listed on Schedule 5.08(b) and any renewals
or extensions thereof, provided that (i) the property covered thereby is not changed, (ii)
the amount secured or benefited thereby is not increased except as contemplated by Section
7.02(d), (iii) the direct or any contingent obligor with respect thereto is not changed, and
(iv) any renewal or extension of the obligations secured or benefited thereby is permitted by
Section 7.02(d);



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



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



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



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



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



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



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



     (j) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Borrower or any Subsidiary of the Borrower or becomes a Subsidiary of the
Borrower; provided that such Liens were not created in contemplation of such merger,
consolidation or Investment and do not extend to any assets other than those of the Person merged
into or consolidated with the Borrower or such Subsidiary or acquired by the Borrower or such
Subsidiary;



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     (k) Liens securing Indebtedness permitted under Section 7.02(i); and



     (l) Liens securing Indebtedness permitted under Section 7.02(g).



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



     (a) obligations (contingent or otherwise) existing or arising under any Swap Contract,
provided that (i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks associated with
fluctuations in interest rates or foreign exchange rates and (ii) such Swap Contract does not
contain any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;



     (b) Indebtedness of a Subsidiary of the Borrower owed to the Borrower or a wholly-owned
Subsidiary of the Borrower, which Indebtedness shall (i) be evidenced by a promissory note, (ii)
constitute “Pledged Debt” under the Security Agreement, (iii) be on terms (including subordination
terms) reasonably acceptable to the Administrative Agent and (iv) be otherwise permitted under the
provisions of Section 7.03;



     (c) Indebtedness under the Loan Documents;



     (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.02 and any
refinancings, refundings, renewals or extensions thereof; provided that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder and the direct or any contingent obligor with respect
thereto is not changed, as a result of or in connection with such refinancing, refunding, renewal
or extension; and provided, still further, that the terms relating to
principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other
material terms taken as a whole, of any such refinancing, refunding, renewing or extending
Indebtedness, and of any agreement entered into and of any instrument issued in connection
therewith, are no less favorable in any material respect to the Borrower or the applicable
Subsidiary(ies) or the Lenders than the terms of any agreement or instrument governing the
Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to
any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then
applicable market interest rate;



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



     (f) Indebtedness in respect of Capitalized Leases, Synthetic Lease Obligations, purchase money
obligations and equipment lines of credit (other than equipment lines of credit provided to the
Borrower and its Subsidiaries by Bank of America) for fixed or capital assets within the
limitations set forth in Section 7.01(i); provided, however, that the
aggregate amount of all such Indebtedness at any one time outstanding shall not exceed $5,000,000;



     (g) Indebtedness under any seller notes and/or subordinated Indebtedness incurred in
connection with a Permitted Acquisition; provided that (i) the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $5,000,000 and (ii) the terms and
conditions of which (including any subordination terms) shall be reasonably satisfactory to the
Administrative Agent;



     (h) Unsecured Indebtedness of the Borrower, provided that, (i) immediately
before and immediately after giving pro forma effect to the incurrence of such unsecured
Indebtedness, the Borrower



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shall be in compliance with the Consolidated Leverage Ratio covenant set forth in Section
7.11(a), (ii) no Default shall have occurred and be continuing, (iii) such Indebtedness shall
be on terms (including with respect to subordination, interest rate and maturity) reasonably
satisfactory to the Administrative Agent; and



     (i) Any other Indebtedness owing to Bank of America or any of its Affiliates.



     7.03. Investments. Make or hold any Investments, except:



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



     (b) advances to officers, directors and employees of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $250,000 at any time outstanding, for travel, entertainment,
relocation and analogous ordinary business purposes;



     (c) (i) Investments by the Borrower and its Subsidiaries in their respective Subsidiaries that
are Guarantors and (ii) Investments by Subsidiaries of the Borrower that are not Guarantors in
other Subsidiaries that are not Guarantors;



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



     (e) Guarantees permitted by Section 7.02;



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



     (g) the purchase or other acquisition of all of the Equity Interests in, or all or
substantially all of the property of, any Person that, upon the consummation thereof, will be
wholly-owned directly by the Borrower or one or more of its wholly-owned Domestic Subsidiaries
(including as a result of a merger or consolidation); provided that, with respect to each
purchase or other acquisition made pursuant to this Section 7.03(g):




     (i) any such newly-created or acquired Subsidiary shall comply with the requirements of
Section 6.12;




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




     (iii) the board of directors or shareholders (or equivalent thereof) of the Person to
be (or the property of which is to be) so purchased or otherwise acquired shall have agreed
to the contemplated purchase or acquisition thereof;




     (iv) such purchase or other acquisition shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the business, financial
condition or operations of the Borrower and its Subsidiaries, taken as a whole (as
determined in good faith by the board of directors (or the persons performing similar
functions) of the Borrower or such



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Subsidiary if the board of directors is otherwise approving such transaction and, in
each other case, by a Responsible Officer);




     (v) the total cash and noncash consideration (including the fair market value of all
Equity Interests issued or transferred to the sellers thereof, all indemnities, earnouts and
other contingent payment obligations to, and the aggregate amounts paid or to be paid under
noncompete, consulting and other affiliated agreements (other than employment agreements for
services actually rendered to the Borrower or any of its Subsidiaries after the date
thereof) with, the sellers thereof, all write-downs of property and reserves for liabilities
with respect thereto and all assumptions of Indebtedness, liabilities and other obligations
in connection therewith) paid by or on behalf of the Borrower and its Subsidiaries for any
such purchase or other acquisition, when aggregated with the total cash and noncash
consideration paid by or on behalf of the Borrower and its Subsidiaries for all other
purchases and other acquisitions made by the Borrower and its Subsidiaries pursuant to this
Section 7.03(g), so long as any Loans or Commitments are outstanding, shall not
exceed (A) $30,000,000 for any single acquisition or purchase and (B) $30,000,000 on a
cumulative basis for all such acquisitions or purchases;




     (vi) Earnings before interest, taxes, deductions and amortization (“EBITDA”)
set forth on the most recent income statement, for the four fiscal quarter period then ended
(which shall be no more than 60 days prior to the proposed acquisition date), delivered to
the Administrative Agent with respect to such Person to be purchased or acquired shall be
greater than $0.00;




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




     (viii) the pro forma capital structure of the Borrower shall be reasonably satisfactory
to the Administrative Agent;




     (ix) the Borrower shall have delivered to the Administrative Agent and each Lender
written notice of such proposed purchase or acquisition at least 25 days prior to the date
on which such purchase or other acquisition is to be consummated, together with a
description of the proposed acquisition or purchase, all diligence materials (including,
without limitation, a certificate of a Responsible Officer, in form and substance reasonably
satisfactory to the Administrative Agent certifying that, as of the date thereof, the
proposed purchase or acquisition is in compliance with Section 7.03(g)(vi) hereof and
accompanied by calculations in support thereof) and other documents and information
reasonably requested by the Administrative Agent, each of which shall be in form and
substance reasonably satisfactory to the Administrative Agent; and




     (x) the Borrower shall have delivered to the Administrative Agent and each Lender, at
least five Business Days prior to the date on which any such purchase or other acquisition
is to be consummated, copies of the final purchase or acquisition documents and a
certificate of a Responsible Officer, in form and substance reasonably satisfactory to the
Administrative Agent



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certifying that all of the requirements set forth in this Section 7.03(g) have
been satisfied or will be satisfied on or prior to the consummation of such purchase or
other acquisition;



     Each purchase or other acquisition made pursuant to and in accordance with this Section
7.03(g) shall be a “Permitted Acquisition”;



     (h) so long as no Default has occurred and is continuing or would result after giving effect
to such Investments, Investments by the Borrower in Maria Health Inc, provided that all
such Investments together with all existing Investments in Maria Health Inc. set forth on Schedule
5.08(e) shall not exceed $2,000,000 in the aggregate at any time;



     (i) so long as immediately prior to and after giving effect to any such Investment, the
Borrower and its Subsidiaries shall be in pro forma compliance with all of the covenants set forth
in Section 7.11 (except that with respect to Section 7.11(a), the Consolidated
Leverage Ratio for purposes of determining compliance with this Section 7.03(i) shall not
be greater than 2.75:1.00) and no Default has occurred and is continuing or would result after
giving effect to such Investments, Investments by the Borrower in Athena India, provided
that all such Investments together with all existing Investments in Athena India set forth on
Schedule 5.08(e) shall not exceed $7,500,000 in the aggregate at any time; and



     (j) so long as no Default has occurred and is continuing or would result after giving effect
to such Investment, additional Investments by the Borrower or any of its Subsidiaries in
wholly-owned (other than for directors’ qualifying shares of a Foreign Subsidiary to the extent
required by applicable Law) Subsidiaries that are not Guarantors, provided that all such
Investments shall not exceed $1,000,000 in the aggregate in any fiscal year of the Borrower.



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



     (a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any Guarantor, provided that the Guarantor
shall be the continuing or surviving Person;



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



     (c) any Subsidiary that is not a Guarantor may dispose of all or substantially all its assets
(including any Disposition that is in the nature of a liquidation) to the Borrower or any
Guarantor;



     (d) in connection with any acquisition permitted under Section 7.03, any Guarantor may
merge into or consolidate with any other Person or permit any other Person to merge into or
consolidate with it; provided that the Person surviving such merger shall be such
Guarantor; and



     (e) so long as no Default has occurred and is continuing or would result therefrom, each of
the Borrower and any Guarantor may merge into or consolidate with any other Person or permit any
other Person to merge into or consolidate with it; provided, however, that in each
case, immediately after giving effect thereto (i) in the case of any such merger to which the
Borrower is a party, the Borrower is the surviving corporation and (ii) in the case of any such
merger to which the Guarantor is a party, such Guarantor is the surviving Person.



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



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



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



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



     (d) Dispositions of property by any Subsidiary to the Borrower or to any Guarantor;



     (e) Dispositions permitted by Section 7.04; and



     (f) licenses of IP Rights in the ordinary course of business and substantially consistent with
past practice that (i) are non-exclusive or (ii) grant exclusive rights to a specified product in a
specified territory for a limited term;


provided, however, that any Disposition pursuant to Section 7.05(a) through
Section 7.05(f) shall be for fair market value.




     7.06. Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests
or accept any capital contributions, except that, so long as no Default shall have occurred and be
continuing at the time of any action described below or would result therefrom:



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



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



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



     (d) the Borrower may make Restricted Payments to repurchase or redeem common stock of the
Borrower held by:




     (i) its present or former officers, directors or employees, upon their death,
disability, retirement, severance or termination of employment or service, provided that the
aggregate cash consideration paid for all such repurchases or redemptions shall not exceed
$250,000 in any fiscal year; and




     (ii) its public stockholders, provided that both immediately before and after making
such Restricted Payments, the Borrower and its Subsidiaries shall be in pro forma compliance
with all of the covenants set forth in Section 7.11, and the Borrower shall have
delivered to the



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Administrative Agent, at least five (5) Business Days prior to the making of such
Restricted Payment, a certificate from a Responsible Officer of the Borrower (A) certifying
that no Default has occurred and is continuing at the time of any such Restricted Payment or
would result therefrom and (B) demonstrating (in detail reasonably satisfactory to the
Administrative Agent) compliance with the requirements of this Section 7.06(d)(ii);
and



     (e) the Borrower may issue or sell any Equity Interests of the Borrower and the Borrower may
accept any capital contributions.



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



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



     7.09. Burdensome Agreements. Enter into or permit to exist any Contractual Obligation (other
than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Subsidiary
to make Restricted Payments to the Borrower or any Guarantor or to otherwise transfer property to
or invest in the Borrower or any Guarantor, except for any agreement in effect (A) on the date
hereof and set forth on Schedule 7.09 or (B) at the time any Subsidiary becomes a
Subsidiary of the Borrower, so long as such agreement was not entered into solely in contemplation
of such Person becoming a Subsidiary of the Borrower, (ii) of any Subsidiary to Guarantee the
Indebtedness of the Borrower or (iii) of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist Liens on property of such Person; provided, however, that this
clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under Section 7.02(f) solely to the extent any such negative pledge
relates to the property financed by or the subject of such Indebtedness; or (b) requires the grant
of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation
of such Person.



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



     7.11. Financial Covenants.



     (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio, as of the
end of any fiscal quarter of the Borrower, for the Measurement Period ending on such date, to be
greater than 3.00 : 1.00.



     (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio as of the end of any fiscal quarter of the Borrower, for the Measurement Period
ending on the date set forth below, to be less than the ratio set forth below opposite such date:



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	 	 	Minimum
	 	 	Consolidated Fixed
	 	 	Charge Coverage
	    
     
Measurement Period Ending	 	Ratio
	September 30, 2008 - December 31, 2008
	 	1.35 : 1.00
	March 31, 2009
	 	1.50 : 1.00
	June 30, 2009 - September 30, 2009
	 	1.75 : 1.00
	December 31, 2009 - March 31, 2010
	 	2.00 : 1.00
	June 30, 2010 and thereafter
	 	2.50 : 1.00






     7.12. Capital Expenditures. Make or become legally obligated to make any Capital Expenditure,
except for Capital Expenditures in the ordinary course of business not exceeding, in the aggregate
for the Borrower and it Subsidiaries during each fiscal year set forth below, the amount set forth
opposite such fiscal year:



	 	 	 	 	 
	Fiscal Year	 	Amount
	2008
	 	$	14,500,000	 
	2009
	 	$	13,500,000	 
	2010
	 	$	13,500,000	 
	2011
	 	$	17,500,000	 
	2012
	 	$	23,500,000	 






     7.13. Amendments of Organization Documents. Amend any of its Organization Documents in any
material respect.



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



     7.15. Prepayments, Etc. of Indebtedness. Prepay, redeem, purchase, defease or otherwise
satisfy prior to the scheduled maturity thereof in any manner, or make any payment in violation of
any subordination terms of, any Indebtedness, except (a) the prepayment of the Credit Extensions in
accordance with the terms of this Agreement and (b) regularly scheduled or required repayments or
redemptions of Indebtedness set forth in Schedule 7.02 and refinancings and refundings of
such Indebtedness in compliance with Section 7.02(d).



     7.16. Amendment, Etc. of Indebtedness. Amend, modify or change in any manner any term or
condition of any Indebtedness set forth in Schedule 7.02, except for any refinancing,
refunding, renewal or extension thereof permitted by Section 7.02(d).



     7.17. OFAC. (a) Become a Person whose property or interests in property are blocked or
subject to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support
Terrorism (66 Fed. Reg. 49079 (2001)), (b) directly or indirectly conduct any business or engage in
any dealings or transactions that violate in any material respect Section 2 of such Executive
Order, or be otherwise associated with any such Person in any manner that violates in any material
respect Section 2, (c) directly or indirectly engage in any dealings or transactions that violate
in any material respect the OFAC Country Sanctions Programs or otherwise involving operations,
facilities or any Governmental Authority in countries in which such conduct would be a material
Export Violation, (d) directly or indirectly engage in or conspire to engage in any dealings or
transactions that evade or avoid, or has the purpose of evading or avoiding, or attempts to violate
in any material respect any of the prohibitions set



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forth in Executive Order 13224 of September 23,
2001, or (e) otherwise become a Person on OFAC’s list of Specially Designated Nationals and Blocked
Persons. Neither the Borrower nor any of its Subsidiaries will use any portion of the proceeds of
the Loans directly or indirectly in violation of the OFAC Country Sanctions Programs or otherwise
to support any operations or facilities or any Governmental Authority in countries in which such
conduct would be an Export Violation.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




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



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



     (b) Specific Covenants. (i) The Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03,
6.05, 6.10, 6.11, 6.12, 6.14, 6.17, 6.18,
6.19, or Article VII, or Section 6.2(c) of the Mortgage; or



     (c) Other Defaults. The Borrower or any of its Subsidiaries fails to perform or
observe any other covenant or agreement (not specified in Section 8.01(a) or (b)
above) contained in any Loan Document on its part to be performed or observed and such failure
continues for 30 days; or



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



     (e) Cross-Default. (i) The Borrower or any of its Subsidiaries (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment, acceleration, demand, or
otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn
committed or available amounts and including amounts owing to all creditors under any combined or
syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or
perform any other agreement or condition relating to any such Indebtedness or Guarantee or
contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the
giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded or (C) fails to
observe or perform any other agreement or condition contained in any instrument or agreement
entered into with Bank of America or any of its Affiliates evidencing, securing or relating to any
Indebtedness; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which
the Borrower or any of its Subsidiaries is the Defaulting Party (as defined in such Swap Contract)
or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or
any of its Subsidiaries is an Affected




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Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or
such Subsidiary as a result thereof is greater than the Threshold Amount; or




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



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



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



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



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



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



     (l) Collateral Documents. Any Collateral Document after delivery thereof pursuant to
Section 4.01 or 6.12 shall for any reason (other than pursuant to the terms
thereof) cease to create a valid



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and perfected first priority Lien (subject to Liens permitted by Section 7.01) on the
Collateral purported to be covered thereby; or



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



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



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



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



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


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




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



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



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer) arising under the Loan Documents and amounts payable under Article III,
ratably among them in proportion to the respective amounts described in this clause Second
payable to them;



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



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     Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans, L/C Borrowings and Obligations then owing, ratably among the Lenders and the L/C Issuer
in proportion to the respective amounts described in this clause Fourth held by them;



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit;



     Sixth, to the payment of that portion of the Obligations then owing under Secured Cash
Management Agreements and Secured Hedge Agreements, ratably among the Cash Management Banks and the
Hedge Banks; and



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


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



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




ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01. Appointment and Authority.



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



     (b) The Administrative Agent shall also act as the “collateral agent” under the Loan
Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a
potential Cash Management Bank) and the L/C Issuer hereby irrevocably appoints and authorizes the
Administrative Agent to act as the agent of such Lender and the L/C Issuer for purposes of
acquiring, holding and enforcing any and all Liens on Collateral granted by the Borrower or any of
its Subsidiaries to secure any of the Obligations, together with such powers and discretion as are
reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent”
and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant
to Section 9.05 for purposes of holding or enforcing any Lien on the Collateral (or any
portion thereof) granted under the Collateral



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



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



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



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



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



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



     (d) The Administrative Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number or percentage of
the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall
be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or
(ii) in the absence of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.



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



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Collateral, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.



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



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



     9.06. Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any
such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an
Affiliate of any such bank with an office in the United States. If no such successor shall have
been so appointed by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided that if the
Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (a) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents (except that in the case of any collateral
security held by the Administrative Agent on behalf of the Lenders or the L/C Issuer under any of
the Loan Documents, the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and (b) all payments,
communications and determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Administrative Agent as provided for above in this Section.
Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from all of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the retiring



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Administrative Agent’s resignation hereunder and under the other Loan Documents, the
provisions of this Article and Section 10.04 shall continue in effect for the benefit of
such retiring Administrative Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent
was acting as Administrative Agent.



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



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



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



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



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


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




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



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



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



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



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



     Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release or subordinate its interest in particular
types or items of property, or to release any Guarantor from its obligations under the Guaranty
pursuant to this Section 9.10. In each case as specified in this Section 9.09, the
Administrative Agent will, at the Borrower’s expense, execute and deliver to the Borrower or the
applicable Subsidiary such documents as the Borrower or the applicable Subsidiary may reasonably
request to evidence the release of such item of Collateral from the assignment and security
interest granted under the Collateral Documents or to subordinate its interest in such item, or to
release such Guarantor from its obligations under the Guaranty, in each case in accordance with the
terms of the Loan Documents and this Section 9.09.



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



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ARTICLE X.

MISCELLANEOUS




     10.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or any
other Loan Document, and no consent to any departure by the Borrower or any of its Subsidiaries
therefrom, shall be effective unless in writing signed by the Required Lenders and the Borrower or
the applicable Subsidiary, as the case may be, and acknowledged by the Administrative Agent, and
each such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:



     (a) waive any condition set forth in Section 4.01 (other than Section
4.01(d)), or, in the case of the initial Credit Extension, Section 4.02, without the
written consent of each Lender; provided, however, in the sole discretion of the
Administrative Agent, only a waiver by the Administrative Agent shall be required with respect to
ministerial maters or items specified in Section 4.01(a)(vii) with respect to which the
Borrower has given written assurances satisfactory to the Administrative Agent that such items
shall be delivered promptly following the Closing Date;



     (b) without limiting the generality of clause (a) above, waive any condition set forth in
Section 4.02 as to any Credit Extension under the Revolving Credit Facility without the
written consent of the Required Revolving Lenders;



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



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



     (e) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees
or other amounts payable hereunder or under any other Loan Document, or change the manner of
computation of any financial ratio (including any change in any applicable defined term) used in
determining the Applicable Rate that would result in a reduction of any interest rate on any Loan
or any fee payable hereunder without the written consent of each Lender entitled to such amount;
provided, however, that only the consent of the Required Lenders shall be necessary
to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate;



     (f) change (i) Section 8.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender or (ii) the order of
application of any reduction in the Commitments or any prepayment of Loans among the Facilities
from the application thereof set forth in the applicable provisions of Section 2.05(b) or
2.06(b), respectively, in any manner that materially and adversely affects the Lenders
under a Facility without the written consent of (i) if such Facility is the Term Facility, the
Required Term Lenders and (ii) if such Facility is the Revolving Credit Facility, the Required
Revolving Lenders;



     (g) change (i) any provision of this Section 10.01 or the definition of “Required
Lenders” or any other provision hereof specifying the number or percentage of Lenders required to
amend, waive or otherwise modify any rights hereunder or make any determination or grant any
consent hereunder (other than the definitions specified in clause (ii) of this Section
10.01(g)), without the written consent of each



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Lender or (ii) the definition of “Required Revolving Lenders” or “Required Term Lenders”
without the written consent of each Lender under the applicable Facility;



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



     (i) release all or substantially all of the value of the Guaranty, without the written consent
of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted
pursuant to Section 9.09 (in which case such release may be made by the Administrative
Agent acting alone); or



     (j) impose any greater restriction on the ability of any Lender under a Facility to assign any
of its rights or obligations hereunder without the written consent of (i) if such Facility is the
Term Facility, the Required Term Lenders and (ii) if such Facility is the Revolving Credit
Facility, the Required Revolving Lenders;



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



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




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




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


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




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



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



     (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its
Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any
Lender, 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 of Borrower Materials through the Internet, except to the
extent that such losses, claims, damages, liabilities or expenses are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Agent Party; provided, however, that in no
event shall any Agent Party have any liability to the Borrower, any Lender, 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 Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United



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



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



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



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



     10.04. Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its
Affiliates (including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent), in connection with the syndication of the credit facilities provided for
herein, the preparation, negotiation, execution, delivery and administration of this Agreement and
the other Loan Documents or any



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amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable
out-of-pocket expenses incurred by the L/C Issuer in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the L/C Issuer
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the L/C Issuer), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.



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



     (c) Authorization for Borrowings and Payment of Interest and Fees. At the election of
the Administrative Agent, all payments of interest, fees, premiums, reimbursable expenses
(including, without limitation, all reimbursement for fees and expenses pursuant to Section
10.04), and other sums payable under the Loan Documents, may be paid from the proceeds of
Borrowings made hereunder, whether made following a request by the Borrower pursuant to Section
2.02 or a deemed request as provided in this Section 2.12, or may be deducted from any
Control Account of the Borrower maintained with Bank of America, including without limitation,
Control Account #004625100022 held at Bank of America or any other account designated by the
Borrower. The Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a
Borrowing for the purpose of paying each payment of interest and fees as it becomes due hereunder
or any other amount due under the Loan Documents and agrees that all such amounts charged shall
constitute Loans and that all such Borrowings shall be deemed to have been requested pursuant to
Section 2.02, and (ii) the Administrative Agent to charge any Control Account of



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the Borrower maintained with Bank of America, including without limitation, Control Account
#004625100022 held at Bank of America or any other account designated by the Borrower, for each
payment of interest and fees as it becomes due hereunder or any other amount due under the Loan
Documents.



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



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



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



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



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



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to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the
L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.



     10.06. Successors and Assigns. (a) Successors and Assigns Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
Section 10.06(b), (ii) by way of participation in accordance with the provisions of
Section 10.06(d), or (iii) by way of pledge or assignment of a security interest subject to
the restrictions of Section 10.06(f) (and any other attempted assignment or transfer by any
party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



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




     (i) Minimum Amounts.




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




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $3,500,000, in the case of any assignment in respect of the Revolving Credit
Facility, or $1,000,000, in the case of any assignment in respect of either Term
Facility, unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement



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with respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not (A) apply to the Swing Line Lender’s rights and obligations in respect of Swing
Line Loans or (B) prohibit any Lender from assigning all or a portion of its rights and
obligations among separate Facilities on a non-pro rata basis;




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




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




     (B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
(1) any Term Commitment or Revolving Credit Commitment if such assignment is to a
Person that is not a Lender with a Commitment in respect of the applicable Facility,
an Affiliate of such Lender or an Approved Fund with respect to such Lender or (2)
any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an
Approved Fund;




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




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




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




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04
with respect to facts and circumstances occurring prior to the effective date of such


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




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



     (d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this
Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s
participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i)
such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve
any amendment, modification or waiver of any provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the benefits of
Sections 3.01, 3.04 and 3.05 to the same extent as if it were a Lender and
had acquired its interest by assignment pursuant to Section 10.06(b). To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.08
as though it were a Lender, provided such Participant agrees to be subject to Section
2.13 as though it were a Lender.



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



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



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



     10.07. Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.15(c) or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.



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



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its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.



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



     10.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, after obtaining the prior written consent of the Administrative Agent, to the
fullest extent permitted by applicable law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final, in whatever currency, but excluding payroll
accounts) at any time held and other obligations (in whatever currency) at any time owing by such
Lender, the L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower (other than Contingent Indemnity
Obligations) now or hereafter existing under this Agreement or any other Loan Document to such
Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C Issuer shall have
made any demand under this Agreement or any other Loan Document and although such obligations of
the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or the
L/C Issuer different from the branch or office holding such deposit or obligated on such
indebtedness. The rights of each Lender, the L/C Issuer and their respective Affiliates under this
Section are in addition to other rights and remedies (including other rights of setoff) that such
Lender, the L/C Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer
agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and
application, provided that the failure to give such notice shall not affect the validity of
such setoff and application.



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



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



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



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



     10.13. Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 10.06), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:



     (a) the Borrower shall have paid to the Administrative Agent the assignment fee specified in
Section 10.06(b);



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



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



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



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



     10.14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF
LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE DOMESTIC SUBSTANTIVE LAWS OF ANY
OTHER STATE).



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     10.15. Dispute Resolution. This paragraph, including the subparagraphs below, is referred to
as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement
for each of the parties entering into this Agreement.



     (a) This Dispute Resolution Provision concerns the resolution of any controversies or claims
between any of the parties hereto, whether arising in contract, tort or by statute, including but
not limited to controversies or claims that arise out of or relate to: (i) this Agreement or any
other Loan Documents (including any renewals, extensions or modifications thereof); or (ii) any
document related to the Loan Documents (collectively a “Claim”). For the purposes of this
Dispute Resolution Provision only, the term “parties” shall include any Affiliate of the
Administrative Agent or any Lender involved in the servicing, management or administration of any
of the Obligations under this Agreement or the other Loan Documents.



     (b) At the request of any affected party to this Agreement, any Claim shall be resolved by
binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the
“Act”). The Act will apply even though this Agreement provides that it is governed by the
law of the Commonwealth of Massachusetts.



     (c) Arbitration proceedings will be determined in accordance with the Act, the then-current
rules and procedures for the arbitration of financial services disputes of the American Arbitration
Association or any successor thereof (“AAA”), and the terms of this Dispute Resolution
Provision. In the event of any inconsistency, the terms of this Dispute Resolution Provision shall
control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce
any provision of this arbitration clause, the Administrative Agent may designate another
arbitration organization with similar procedures to serve as the provider of arbitration.



     (d) The arbitration shall be administered by AAA and conducted, unless otherwise required by
Law, in any U.S. state where Collateral for the Revolving Credit Facility is located or if there is
no such Collateral, in the Commonwealth of Massachusetts. All Claims shall be determined by one
arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon the request of any
affected party hereto, the Claims shall be decided by three arbitrators. All arbitration hearings
shall commence within ninety (90) days of the demand for arbitration and close within ninety (90)
days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of
the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the
commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall
provide a concise written statement of reasons for the award. The arbitration award may be
submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.



     (e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and
may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application
of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim
is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or
whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at
subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to
award legal fees pursuant to the terms of this Agreement.



     (f) This paragraph does not limit the right of any party hereto to: (i) exercise self-help
remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure
against any Collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court
of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of
possession or appointment of a receiver, or additional or supplementary remedies.



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     (g) The filing of a court action is not intended to constitute a waiver of the right of any
party, including the suing party, thereafter to require submittal of the Claim to arbitration.



     (h) Any arbitration or trial by a judge of any Claim will take place on an individual basis
without resort to any form of class or representative action (the “Class Action Waiver”).
Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the
Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to
this Agreement acknowledge that the Class Action Waiver is material and essential to the
arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate
Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’
agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right
to appeal the limitation or invalidation of the Class Action Waiver. The parties hereto
acknowledge and agree that under no circumstances will a class action be arbitrated.



     (i) By agreeing to binding arbitration, the parties hereto irrevocably and voluntarily waive
any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending
in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the
parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of
such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is
limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY
A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING
UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.



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



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



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Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.



     10.18. USA PATRIOT Act. Each Lender that is subject to the Act (as hereinafter defined) and
the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that
identifies the Borrower and each Guarantor, which information includes the name and address of the
Borrower and each Guarantor and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower and each Guarantor in accordance with the Act. The
Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all
documentation and other information that the Administrative Agent or such Lender requests in order
to comply with its ongoing obligations under applicable “know your customer” an anti-money
laundering rules and regulations, including the Act.



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



	 	 	 	 	 	 	 
	 	 	ATHENAHEALTH, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Jonathan Bush
 

	 	 
	 	 	Name: Jonathan Bush	 	 
	 	 	Title: President & CEO	 	 






 









 






	 	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as 


Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Linda E.C. Alto	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Linda E.C. Alto	 	 
	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer 
and
Swing Line Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Linda E.C. Alto	 	 
	 

	 	 	 	 	 	 
	 	 	Name: Linda E.C. Alto	 	 
	 	 	Title: Senior Vice President