EXHIBIT 10.1




 





 


$250,000,000


 


CREDIT AGREEMENT


 


among


 


OSI SYSTEMS, INC.,


as Borrower,


 


CERTAIN DOMESTIC
SUBSIDIARIES OF THE BORROWER


FROM TIME TO TIME PARTY
HERETO,


as Guarantors,


 


THE LENDERS PARTY HERETO,


 


WELLS FARGO BANK, NATIONAL
ASSOCIATION,


as Administrative Agent,


 


BANK OF AMERICA, N.A.,


as Syndication Agent,


 


U.S. BANK N.A.,


as Joint Documentation Agent


 


and


 


HSBC BANK USA, N.A.,


as Joint Documentation Agent


 


Dated as of October 15,
2010


 


WELLS FARGO SECURITIES, LLC,


as Joint Lead Arranger and Joint Bookrunner


 


and


 


BANC OF AMERICA SECURITIES LLC


as Joint Lead Arranger and Joint Bookrunner


 




 





Prepared
by:





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
  ARTICLE I  DEFINITIONS

  	
  1

  
	
  Section 1.1

  	
  Defined
  Terms

  	
  1

  
	
  Section 1.2

  	
  Other
  Definitional Provisions

  	
  32

  
	
  Section 1.3

  	
  Accounting
  Terms

  	
  33

  
	
  Section 1.4

  	
  Time
  References

  	
  34

  
	
  Section 1.5

  	
  Execution
  of Documents

  	
  34

  
	
  ARTICLE II THE LOANS; AMOUNT AND TERMS

  	
  34

  
	
  Section 2.1

  	
  Revolving
  Loans and Incremental Revolving Loans

  	
  34

  
	
  Section 2.2

  	
  Reserved

  	
  38

  
	
  Section 2.4

  	
  Swingline
  Loan Subfacility

  	
  43

  
	
  Section 2.5

  	
  Fees

  	
  45

  
	
  Section 2.6

  	
  Commitment
  Reductions

  	
  46

  
	
  Section 2.7

  	
  Prepayments

  	
  46

  
	
  Section 2.8

  	
  Default
  Rate and Payment Dates

  	
  47

  
	
  Section 2.9

  	
  Conversion
  Options

  	
  48

  
	
  Section 2.10

  	
  Computation
  of Interest and Fees; Usury

  	
  48

  
	
  Section 2.11

  	
  Pro
  Rata Treatment and Payments

  	
  50

  
	
  Section 2.12

  	
  Non-Receipt
  of Funds by the Administrative Agent

  	
  52

  
	
  Section 2.13

  	
  Inability
  to Determine Interest Rate

  	
  53

  
	
  Section 2.14

  	
  Yield
  Protection

  	
  54

  
	
  Section 2.15

  	
  Compensation for Losses; Eurocurrency Liabilities

  	
  55

  
	
  Section 2.16

  	
  Taxes

  	
  56

  
	
  Section 2.17

  	
  Indemnification;
  Nature of Issuing Lender’s Duties

  	
  58

  
	
  Section 2.18

  	
  Illegality

  	
  60

  
	
  Section 2.19

  	
  Replacement
  of Lenders

  	
  60

  
	
  Section 2.20

  	
  Cash Collateral

  	
  62

  
	
  Section 2.21

  	
  Defaulting Lenders

  	
  63

  
	
  ARTICLE III REPRESENTATIONS AND WARRANTIES

  	
  65

  
	
  Section 3.1

  	
  Financial
  Condition

  	
  65

  
	
  Section 3.2

  	
  No
  Material Adverse Effect; Internal Control Event

  	
  66

  
	
  Section 3.3

  	
  Corporate
  Existence; Compliance with Law

  	
  66

  
	
  Section 3.4

  	
  Corporate
  Power; Authorization; Enforceable Obligations

  	
  67

  
	
  Section 3.5

  	
  No
  Legal Bar; No Default

  	
  67

  
	
  Section 3.6

  	
  No
  Material Litigation

  	
  67

  
	
  Section 3.7

  	
  Investment
  Company Act; etc.

  	
  68

  
	
  Section 3.8

  	
  Margin
  Regulations

  	
  68

  
	
  Section 3.9

  	
  ERISA

  	
  68

  
	
  Section 3.10

  	
  Environmental
  Matters

  	
  68

  
	
  Section 3.11

  	
  Use
  of Proceeds

  	
  70

  
	
  Section 3.12

  	
  Subsidiaries;
  Joint Ventures; Partnerships

  	
  70

  
	
  Section 3.13

  	
  Ownership

  	
  70

  
	
  Section 3.14

  	
  Indebtedness

  	
  70

  
	
  Section 3.15

  	
  Taxes

  	
  71

  



 


i

















 


	
  Section 3.16

  	
  Intellectual
  Property Rights

  	
  71

  
	
  Section 3.17

  	
  Solvency

  	
  72

  
	
  Section 3.18

  	
  Investments

  	
  72

  
	
  Section 3.19

  	
  Location
  of Collateral

  	
  72

  
	
  Section 3.20

  	
  No
  Burdensome Restrictions

  	
  72

  
	
  Section 3.21

  	
  Brokers’
  Fees

  	
  72

  
	
  Section 3.22

  	
  Labor
  Matters

  	
  73

  
	
  Section 3.23

  	
  Accuracy
  and Completeness of Information

  	
  73

  
	
  Section 3.24

  	
  Material
  Contracts

  	
  73

  
	
  Section 3.25

  	
  Insurance

  	
  73

  
	
  Section 3.26

  	
  Security
  Documents

  	
  74

  
	
  Section 3.27

  	
  Regulation
  H

  	
  74

  
	
  Section 3.28

  	
  Classification
  of Senior Indebtedness

  	
  74

  
	
  Section 3.29

  	
  Anti-Terrorism
  Laws

  	
  74

  
	
  Section 3.30

  	
  Compliance
  with OFAC Rules and Regulations

  	
  74

  
	
  Section 3.31

  	
  Compliance
  with FCPA

  	
  75

  
	
  Section 3.32

  	
  Consent;
  Governmental Authorizations

  	
  75

  
	
  Section 3.33

  	
  Government
  Contracts

  	
  75

  
	
  Section 3.34

  	
  Assignment
  of Payments

  	
  75

  
	
  ARTICLE IV CONDITIONS PRECEDENT

  	
  76

  
	
  Section 4.1

  	
  Conditions
  to Closing Date

  	
  76

  
	
  Section 4.2

  	
  Conditions
  to All Extensions of Credit

  	
  81

  
	
  ARTICLE V AFFIRMATIVE COVENANTS

  	
  82

  
	
  Section 5.1

  	
  Financial
  Statements

  	
  82

  
	
  Section 5.2

  	
  Certificates;
  Other Information

  	
  83

  
	
  Section 5.3

  	
  Payment
  of Taxes and Other Obligations

  	
  84

  
	
  Section 5.4

  	
  Conduct
  of Business and Maintenance of Existence

  	
  84

  
	
  Section 5.5

  	
  Maintenance
  of Property; Insurance

  	
  85

  
	
  Section 5.6

  	
  Inspection
  of Property; Books and Records; Discussions

  	
  85

  
	
  Section 5.7

  	
  Notices

  	
  86

  
	
  Section 5.8

  	
  Environmental
  Laws

  	
  87

  
	
  Section 5.9

  	
  Financial
  Covenants

  	
  88

  
	
  Section 5.10

  	
  Additional
  Guarantors

  	
  88

  
	
  Section 5.11

  	
  Compliance
  with Law

  	
  89

  
	
  Section 5.12

  	
  Pledged
  Assets

  	
  89

  
	
  Section 5.13

  	
  Covenants
  Regarding Patents, Trademarks and Copyrights

  	
  90

  
	
  Section 5.14

  	
  Landlord
  Waivers

  	
  91

  
	
  Section 5.15

  	
  Federal
  Assignment of Claims Act

  	
  91

  
	
  Section 5.16

  	
  Further
  Assurances

  	
  92

  
	
  ARTICLE VI NEGATIVE COVENANTS

  	
  93

  
	
  Section 6.1

  	
  Indebtedness

  	
  93

  
	
  Section 6.2

  	
  Liens

  	
  94

  
	
  Section 6.3

  	
  Nature
  of Business

  	
  95

  
	
  Section 6.4

  	
  Consolidation,
  Merger, Sale or Purchase of Assets, etc.

  	
  95

  
	
  Section 6.5

  	
  Advances, Investments
  and Loans

  	
  96

  



 


ii

















 


	
  Section 6.6

  	
  Transactions
  with Affiliates

  	
  96

  
	
  Section 6.7

  	
  Ownership
  of Subsidiaries; Restrictions

  	
  96

  
	
  Section 6.8

  	
  Corporate
  Changes; Material Contracts

  	
  97

  
	
  Section 6.9

  	
  Limitation
  on Restricted Actions

  	
  97

  
	
  Section 6.10

  	
  Restricted
  Payments

  	
  97

  
	
  Section 6.11

  	
  Amendment
  of Subordinated Debt

  	
  98

  
	
  Section 6.12

  	
  Sale
  Leasebacks

  	
  98

  
	
  Section 6.13

  	
  No
  Further Negative Pledges

  	
  98

  
	
  Section 6.14

  	
  Bank
  Accounts

  	
  99

  
	
  ARTICLE VII EVENTS OF DEFAULT

  	
  99

  
	
  Section 7.1

  	
  Events
  of Default

  	
  99

  
	
  Section 7.2

  	
  Acceleration;
  Remedies

  	
  102

  
	
  ARTICLE VIII THE ADMINISTRATIVE AGENT

  	
  103

  
	
  Section 8.1

  	
  Appointment
  and Authority

  	
  103

  
	
  Section 8.2

  	
  Nature
  of Duties

  	
  103

  
	
  Section 8.3

  	
  Exculpatory
  Provisions

  	
  104

  
	
  Section 8.4

  	
  Reliance
  by Administrative Agent

  	
  105

  
	
  Section 8.5

  	
  Notice
  of Default

  	
  105

  
	
  Section 8.6

  	
  Non-Reliance
  on Administrative Agent and Other Lenders

  	
  105

  
	
  Section 8.7

  	
  Indemnification

  	
  106

  
	
  Section 8.8

  	
  Administrative
  Agent in Its Individual Capacity

  	
  106

  
	
  Section 8.9

  	
  Successor
  Administrative Agent

  	
  106

  
	
  Section  8.10

  	
  Collateral
  and Guaranty Matters

  	
  107

  
	
  ARTICLE IX MISCELLANEOUS

  	
  108

  
	
  Section 9.1

  	
  Amendments,
  Waivers and Release of Collateral

  	
  108

  
	
  Section 9.2

  	
  Notices

  	
  111

  
	
  Section 9.3

  	
  No
  Waiver; Cumulative Remedies

  	
  112

  
	
  Section 9.4

  	
  Survival
  of Representations and Warranties

  	
  113

  
	
  Section 9.5

  	
  Payment
  of Expenses and Taxes; Indemnity

  	
  113

  
	
  Section 9.6

  	
  Successors
  and Assigns; Participations

  	
  115

  
	
  Section 9.7

  	
  Right
  of Set-off; Sharing of Payments

  	
  119

  
	
  Section 9.8

  	
  Table
  of Contents and Section Headings

  	
  120

  
	
  Section 9.9

  	
  Counterparts;
  Integration; Effectiveness; Electronic Execution

  	
  120

  
	
  Section 9.10

  	
  Severability

  	
  121

  
	
  Section 9.11

  	
  Integration

  	
  121

  
	
  Section 9.12

  	
  Governing
  Law

  	
  121

  
	
  Section 9.13

  	
  Consent
  to Jurisdiction; Service of Process and Venue

  	
  121

  
	
  Section 9.14

  	
  Confidentiality

  	
  122

  
	
  Section 9.15

  	
  Acknowledgments

  	
  123

  
	
  Section 9.16

  	
  Waivers
  of Jury Trial; Waiver of Consequential Damages

  	
  123

  
	
  Section 9.17

  	
  Patriot
  Act Notice

  	
  124

  
	
  Section 9.18

  	
  Resolution
  of Drafting Ambiguities

  	
  124

  
	
  Section 9.19

  	
  Continuing
  Agreement

  	
  124

  
	
  Section 9.20

  	
  Lender
  Consent

  	
  124

  
	
  Section 9.22

  	
  Press Releases and Related Matters

  	
  125

  



 


iii

















 


	
  Section 9.23

  	
  No Advisory or Fiduciary Responsibility

  	
  125

  
	
  ARTICLE X GUARANTY

  	
  126

  
	
  Section 10.1

  	
  The
  Guaranty

  	
  126

  
	
  Section 10.2

  	
  Bankruptcy

  	
  127

  
	
  Section 10.3

  	
  Nature
  of Liability

  	
  127

  
	
  Section 10.4

  	
  Independent
  Obligation

  	
  128

  
	
  Section 10.5

  	
  Authorization

  	
  128

  
	
  Section 10.6

  	
  Reliance

  	
  128

  
	
  Section 10.7

  	
  Waiver

  	
  128

  
	
  Section 10.8

  	
  Limitation
  on Enforcement

  	
  130

  
	
  Section 10.9

  	
  Confirmation
  of Payment

  	
  130

  



 


iv

















 


	
  Schedules

  	
   

  
	
   

  	
   

  
	
  Schedule
  1.1(a)

  	
  Investments

  
	
  Schedule
  1.1(b)

  	
  Liens

  
	
  Schedule
  3.3

  	
  Jurisdictions
  of Organization and Qualification

  
	
  Schedule
  3.12

  	
  Subsidiaries

  
	
  Schedule
  3.16

  	
  Intellectual
  Property

  
	
  Schedule
  3.19(a)

  	
  Location
  of Real Property

  
	
  Schedule
  3.19(b)

  	
  Location
  of Collateral

  
	
  Schedule
  3.19(c)

  	
  Chief
  Executive Offices

  
	
  Schedule
  3.19(d)

  	
  Mortgaged
  Properties

  
	
  Schedule
  3.22

  	
  Labor
  Matters

  
	
   

  	
   

  
	
  Exhibits

  	
   

  
	
   

  	
   

  
	
  Exhibit 1.1(a)

  	
  Form of
  Account Designation Notice

  
	
  Exhibit 1.1(b)

  	
  Form of
  Assignment and Assumption

  
	
  Exhibit 1.1(c)

  	
  Form of
  Joinder Agreement

  
	
  Exhibit 1.1(d)

  	
  Form of
  Notice of Borrowing

  
	
  Exhibit 1.1(e)

  	
  Form of
  Notice of Conversion/Extension

  
	
  Exhibit 1.1(f)

  	
  Form of
  Permitted Acquisition Certificate

  
	
  Exhibit 2.1(a)

  	
  Form of
  Funding Indemnity Letter

  
	
  Exhibit 2.1(e)

  	
  Form of
  Revolving Note

  
	
  Exhibit 2.4(d)

  	
  Form of
  Swingline Note

  
	
  Exhibit 4.1(a)

  	
  Form of
  Lender Consent

  
	
  Exhibit 4.1(b)

  	
  Form of
  Officer’s Certificate

  
	
  Exhibit 4.1(d)

  	
  Form of
  Landlord Waiver

  
	
  Exhibit 4.1(g)

  	
  Form of
  Solvency Certificate

  
	
  Exhibit 4.1(p)

  	
  Form of
  Financial Condition Certificate

  
	
  Exhibit 4.1(q)

  	
  Form of
  Patriot Act Certificate

  
	
  Exhibit 5.2(b)

  	
  Form of
  Officer’s Compliance Certificate

  



 


v
















 


CREDIT AGREEMENT, dated as of October 15, 2010 among OSI SYSTEMS, INC., a Delaware corporation (the “Borrower”),
each of those  Domestic Subsidiaries of the
Borrower identified as a “Guarantor” on the signature pages hereto and
such other Domestic Subsidiaries of the Borrower as may from time to time
become a party hereto (such Subsidiaries, each a “Guarantor” and
collectively, the “Guarantors”), the several banks and other financial
institutions as are, or may from time to time become parties to this Agreement
(each a “Lender” and, collectively, the “Lenders”), and WELLS FARGO BANK, NATIONAL ASSOCIATION (successor-by-merger
to Wachovia Bank, National Association), a national banking association, as
administrative agent for the Lenders hereunder (in such capacity, the “Administrative
Agent”).


 


W  I
T  N  E  S  S  E  T  H:


 


WHEREAS, the Credit Parties (as hereinafter defined) have
requested that the Lenders make loans and other financial accommodations to the
Credit Parties in an aggregate amount of up to $250,000,000, as more
particularly described herein; and


 


WHEREAS, the Lenders have agreed to make such loans and
other financial accommodations to the Credit Parties on the terms and
conditions contained herein.


 


NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
such parties hereby agree as follows:


 


ARTICLE I


 


DEFINITIONS


 


Section 1.1            Defined
Terms.


 


As used in this Agreement, terms defined in the preamble to this
Agreement have the meanings therein indicated, and the following terms have the
following meanings:


 


“ABR Default Rate” shall have the meaning set forth in Section 2.8.


 


 “Account Designation Notice”
shall mean the Account Designation Notice dated as of the Closing Date from the
Borrower to the Administrative Agent in substantially the form attached hereto
as Exhibit 1.1(a).


 


“Additional Credit Party” shall mean each Person that becomes a
Guarantor by execution of a Joinder Agreement in accordance with Section 5.10.


 


“Additional Revolving Loan” shall have the meaning set forth in Section 2.1(f).


 


“Administrative Agent” or “Agent” shall have the meaning
set forth in the first paragraph of this Agreement and shall include any
successors in such capacity.


 

















 


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


 


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


 


“Agreement” or “Credit Agreement” shall mean this
Agreement, as amended, modified, extended, restated, replaced, or supplemented
from time to time in accordance with its terms.


 


“Alternate Base Rate” shall mean, for any day, a rate per annum
equal to the greater of (a) the
Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1% and (c) the
sum of (i) LIBOR (as determined pursuant to the definition of LIBOR), for
an Interest Period of one (1) month commencing on such day plus (ii) 1.00%.  For purposes hereof:
“Prime Rate” shall mean, at any time, the rate of interest per annum
publicly announced or otherwise identified from time to time by Wells Fargo at
its principal office in Charlotte, North Carolina as its prime rate.  Each change in the Prime Rate shall be
effective as of the opening of business on the day such change in the Prime
Rate occurs.  The parties hereto
acknowledge that the rate announced publicly by Wells Fargo as its Prime Rate
is an index or base rate and shall not necessarily be its lowest or best rate
charged to its customers or other banks; and “Federal Funds Effective Rate”
shall mean, for any day, the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published on the next succeeding Business Day by the
Federal Reserve Bank of New York, or, if such rate is not so published on the
next succeeding Business Day, the average of the quotations for the day of such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by it. 
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive in the absence of manifest error) that it is
unable to ascertain the Federal Funds Effective Rate, for any reason, including
the inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms above, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition, as appropriate, until the circumstances giving rise to such
inability no longer exist.  Any change in
the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective on the opening of business on the date of
such change.


 


“Alternate Base Rate Loans” shall mean Loans that bear interest
at an interest rate based on the Alternate Base Rate.


 


“Applicable Percentage” shall mean, for any day, the rate per
annum set forth below opposite the applicable level then in effect (based on
the Consolidated Leverage Ratio), it being understood that the Applicable
Percentage for (a) Revolving Loans
that are Alternate Base Rate Loans shall be the percentage set forth under the
column “Base Rate Margin”, (b) Revolving
Loans that are LIBOR Rate Loans shall be the percentage set forth under the
column “LIBOR Margin & Letter of Credit Fee”, (c) the Letter of
Credit Fee shall be the percentage set forth


 


2

















 


under the column “LIBOR Margin & Letter of Credit Fee”, and (d) the Commitment Fee shall be the
percentage set forth under the column “Commitment Fee”:


 


Applicable Percentage


 


	
  Level

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  LIBOR

  Margin

  & Letter of

  Credit Fee

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Commitment

  Fee

  	
   

  
	
  I

  	
   

  	
  < 2.00 to 1.0

  	
   

  	
  2.00

  	
  %

  	
  1.00

  	
  %

  	
  0.375

  	
  %

  
	
  II

  	
   

  	
  <2.75 to 1.0 but >2.00 to 1.0

  	
   

  	
  2.25

  	
  %

  	
  1.25

  	
  %

  	
  0.375

  	
  %

  
	
  III

  	
   

  	
  > 2.75 to 1.0

  	
   

  	
  2.50 

  	
  %

  	
  1.50

  	
  %

  	
  0.500

  	
  %

  



 


The Applicable Percentage shall, in each case, be determined and
adjusted quarterly on the date five (5) Business Days after the date on
which the Administrative Agent has received from the Borrower the quarterly
financial information (in the case of the first three fiscal quarters of the
Borrower’s fiscal year), the annual financial information (in the case of the
fourth fiscal quarter of the Borrower’s fiscal year) and the certifications
required to be delivered to the Administrative Agent and the Lenders in
accordance with the provisions of Sections 5.1(a), 5.1(b) and 5.2(b) (each
an “Interest Determination Date”). 
Such Applicable Percentage shall be effective from such Interest
Determination Date until the next such Interest Determination Date.  Notwithstanding the foregoing, the initial
Applicable Percentages shall be set at Level I until the applicable financial
information and certificates required to be delivered pursuant to Section 5.1
and 5.2 for the fiscal quarter ending March 31, 2011 have been delivered
to the Administrative Agent.  After the
Closing Date, if the Credit Parties shall fail to provide the financial
information or certifications in accordance with the provisions of Sections 5.1(a),
5.1(b) and 5.2(b), the Applicable Percentage shall, on the date five (5) Business
Days after the date by which the Credit Parties were so required to provide
such financial information or certifications to the Administrative Agent and
the Lenders, be based on Level  III until such
time as such information or certifications or corrected information or
corrected certificates are provided, whereupon the Level shall be determined by
the then current Consolidated Leverage Ratio. 
In the event that any financial statement or certification delivered
pursuant to Section 5.1 is shown to be inaccurate (regardless of whether
this Agreement or the Commitments are in effect when such inaccuracy is
discovered), and such inaccuracy, if corrected, would have led to the
application of a higher Applicable Percentage for any period (an “Applicable
Period”) than the Applicable Percentage applied for such Applicable Period,
then for so long as this Agreement shall be in effect the Borrower shall
immediately (i) deliver to the Administrative Agent a corrected compliance
certificate for such Applicable Period, (ii) determine the Applicable
Percentage for such Applicable Period based upon the corrected compliance
certificate, and (iii) pay to the Administrative Agent the accrued
additional interest owing as a result of such increased Applicable Percentage
for such Applicable Period, which payment shall be promptly applied by the
Administrative Agent in accordance with Section 2.11.  It is acknowledged and agreed that


 


3

















 


nothing contained herein shall limit the rights of the Administrative
Agent and the Lenders under the Credit Documents, including their rights under
Sections 2.8 and 7.1 and other of their respective rights under this Agreement.


 


“Approved Bank” shall have the meaning set forth in the
definition of “Cash Equivalents.”


 


“Approved Fund” shall mean any Fund that is administered,
managed or underwritten 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.


 


“Arrangers” shall mean Wells Fargo Securities, LLC, together
with its successors and assigns, and Banc of America Securities LLC, together
with its successors and assigns.


 


“Assignment and Assumption” shall mean an assignment and
assumption entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by the definition of Eligible Assignee
and Section 9.6), and accepted by the Administrative Agent, in
substantially the form of Exhibit 1.1(b) or any other form
approved by the Administrative Agent.


 


“Availability” shall mean, as of any date of determination, an
amount equal to the sum of (a) the
Revolver Availability plus (b) cash
and Cash Equivalents on hand.


 


“Bankruptcy Code” shall mean the Bankruptcy Code in Title 11 of
the United States Code, as amended, modified, succeeded or replaced from time
to time.


 


“Bankruptcy
Event” shall mean any of the events described in Section 7.1(f).


 


“Bankruptcy
Event of Default” shall mean an Event of Default specified in Section 7.1(f).


 


“Borrower” shall have the meaning set forth in the first
paragraph of this Agreement.


 


“Borrowing Date” shall mean, in respect of any Loan, the date
such Loan is made.


 


“Business”
shall have the meaning set forth in Section 3.10.


 


“Business Day” shall mean any day other than a Saturday, Sunday
or other day on which commercial banks in Charlotte, North Carolina, New York,
New York or Los Angeles, California are authorized or required by law to close;
provided, however, that when used in connection with a rate
determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business
Day” shall also exclude any day on which banks in London, England are not open
for dealings in Dollar deposits in the London interbank market.


 


“Canadian Dollars” or “CAD” shall mean dollars in the
lawful currency of Canada.


 


4

















 


“Capital Lease” shall mean any lease of property, real or
personal, the obligations with respect to which are required to be capitalized
on a balance sheet of the lessee in accordance with GAAP.


 


“Capital Lease Obligations” shall mean the capitalized lease
obligations relating to a Capital Lease determined in accordance with GAAP.


 


“Cash
Collateralize” shall mean to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the Issuing
Lender or Swingline Lender (as applicable) and the Lenders, as collateral for
LOC Obligations, obligations in respect of Swingline Loans, or obligations of
Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the Issuing Lender or
Swingline Lender benefiting from such collateral shall agree in its sole
discretion, other credit support, in each case pursuant to documentation in
form and substance satisfactory to (a) the Administrative Agent and (b) the
applicable Issuing Lender or the Swingline Lender.  “Cash Collateral” shall have a meaning
correlative to the foregoing and shall include the proceeds of such cash
collateral and other credit support.


 


“Cash Equivalents” shall mean (a) securities
issued or directly and fully guaranteed or insured by the United States of America
or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of acquisition (“Government
Obligations”), (b) Dollar
denominated time deposits, certificates of deposit, Eurodollar time deposits
and Eurodollar certificates of deposit of (i) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $250,000,000 or (ii) any
bank whose short-term commercial paper rating at the time of the acquisition
thereof is at least A-1 or the equivalent thereof from S&P or from Moody’s
is at least P-1 or the equivalent thereof from Moody’s (any such bank being an “Approved
Bank”), in each case with maturities of not more than 364 days from the
date of acquisition, (c) commercial
paper and variable or fixed rate notes issued by any Approved Bank (or by the
parent company thereof) or any variable rate notes issued by, or guaranteed by
any domestic corporation rated A-1 (or the equivalent thereof) or better by
S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing
within six months of the date of acquisition, (d) repurchase
agreements with a bank or trust company (including a Lender) or a recognized
securities dealer having capital and surplus in excess of $500,000,000 for
direct obligations issued by or fully guaranteed by the United States of
America, (e) obligations of any
state of the United States or any political subdivision thereof for the payment
of the principal and redemption price of and interest on which there shall have
been irrevocably deposited Government Obligations maturing as to principal and
interest at times and in amounts sufficient to provide such payment, (f) auction preferred stock rated in the
highest short-term credit rating category by S&P or Moody’s, (g) money market accounts subject to Rule 2a-7
of the Exchange Act (“SEC Rule 2a-7”) which consist primarily of
cash and cash equivalents set forth in clauses (a) through (f) above
and of which 95% shall at all times be comprised of First Tier Securities (as
defined in SEC Rule 2a-7) and any remaining amount shall at all times be
comprised of Second Tier Securities (as defined in SEC Rule 2a-7) and (h) shares of any so-called “money market
fund,” provided that such fund is registered under the


 


5

















 


Investment Company Act of 1940, has net assets of at least $100,000,000
and has an investment portfolio with an average maturity of 365 days or less.


 


“Change in Law” shall mean 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” shall mean at any time the occurrence of any of the following
events:  (a) any
“person” or “group” (as such terms are used in Section 13(d) and 14(d) of
the Exchange Act), is or becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a person shall be deemed to have “beneficial
ownership” of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of thirty-five percent (35%) or more of the then
outstanding Voting Stock of the Borrower; or (b) the
replacement of a majority of the Board of Directors of the Borrower over a
two-year period from the directors who constituted the Board of Directors at the
beginning of such period, and such replacement shall not have been approved by
a vote of at least a majority of the Board of Directors of the Borrower then
still in office who either were members of such Board of Directors at the
beginning of such period or whose election as a member of such Board of
Directors was previously so approved.


 


“Closing Date” shall mean the date of this Agreement.


 


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


 


“Collateral” shall mean a collective reference to the collateral
which is identified in, and at any time will be covered by, the Security
Documents and any other property or assets of a Credit Party, whether tangible
or intangible and whether real or personal, that may from time to time secure
the Credit Party Obligations; provided that there shall be excluded from
the Collateral (a) any account, instrument, chattel paper or other
obligation or property of any kind due from, owed by, or belonging to, a
Sanctioned Person or Sanctioned Entity or (b) any lease in which
the lessee is a Sanctioned Person or Sanctioned Entity.


 


“Committed
Funded Exposure” shall mean, as to any Lender at any time, the aggregate
principal amount at such time of its outstanding Loans, LOC Obligations and
Swingline Obligations at such time.


 


“Commitment” shall mean the Revolving Commitments, the LOC
Commitment and the Swingline Commitment, individually or collectively, as
appropriate.


 


“Commitment Fee” shall have the meaning set forth in Section 2.5(a).


 


“Commitment
Percentage” shall mean, for each Lender, the percentage identified as its
Commitment Percentage in its Lender Commitment Letter or in the Assignment and
Assumption 


 


6

















 


pursuant
to which such Lender became a Lender hereunder, as such percentage may be
modified in connection with any assignment made in accordance with the
provisions of Section 9.6(c).


 


“Commitment Period” shall mean (a) with
respect to Revolving Loans and Swingline Loans, the period from and including
the Closing Date to but excluding the Maturity Date and (b) with respect to Letters of Credit, the
period from and including the Closing Date to but excluding the date that is
thirty (30) days prior to the Maturity Date.


 


“Commonly Controlled Entity”
shall mean an entity, whether or not incorporated, which is under common
control with the Borrower within the meaning of Section 4001(b)(1) of
ERISA or is part of a group which includes the Borrower and which is treated as
a single employer under Section 414(b) or 414(c) of the Code or,
solely for purposes of Section 412 of the Code to the extent required by
such section, Section 414(m) or 414(o) of the Code.


 


“Consolidated”
shall mean, when used with reference to financial statements or financial statement
items of the Borrower and its Subsidiaries or any other Person, such statements
or items on a consolidated basis in accordance with the consolidation
principles of GAAP.


 


“Consolidated
Capital Expenditures” shall mean, as of any date of determination for the
four consecutive fiscal quarter period ending on such date, all expenditures of
the Borrower and its Subsidiaries on a Consolidated basis for such period that
in accordance with GAAP would be classified as capital expenditures, including,
without limitation, Capital Lease Obligations. 
The term “Consolidated Capital Expenditures” shall not include (a) any
Permitted Acquisition or (b) capital expenditures in respect of the
reinvestment of proceeds from Extraordinary Receipts.


 


“Consolidated
EBITDA” shall mean, as of any date of determination for the four consecutive
fiscal quarter period ending on such date, without duplication, (a) Consolidated Net Income for such period
plus (b) the sum of the
following to the extent deducted in calculating Consolidated Net Income:  (i) Consolidated
Interest Expense for such period, (ii) tax
expense (including, without limitation, any federal, state, local and foreign
income and similar taxes) of the Borrower and its Subsidiaries for such period,
(iii) non-cash amounts attributed to
any third party’s minority interest in any Credit Party or any Subsidiary
thereof, (iv) depreciation and
amortization expense of the Borrower and its Subsidiaries for such period, (v) non-cash stock based compensation
expense, (vi) (A) non-recurring cash charges for such
period in an aggregate amount not to exceed five (5%) percent of Consolidated
EBITDA for such period and (B) non-recurring
cash charges for such period not otherwise permitted under clause (vi)(A) as
approved by the Administrative Agent and (vii) other
non-cash charges (excluding reserves for future cash charges) of the Borrower
and its Subsidiaries for such period minus (c) non-cash charges previously added back to Consolidated Net
Income in determining Consolidated EBITDA to the extent such non-cash charges
have become cash charges during such period except to the extent such cash
charges are permitted as an add-back under clause (b)(vi) above minus
(d) extraordinary losses and gains
and all non-cash income, interest income and tax credits, rebates and other
benefits to the extent otherwise included in Consolidated Net Income minus
(e) unusual or non-recurring gains
to the extent otherwise included in Consolidated Net Income including, without
limitation, gains in connection with material litigation.


 


7

















 


“Consolidated Funded Debt” shall mean, as of any date of
determination, Funded Debt of the Borrower and its Subsidiaries on a
Consolidated basis.


 


“Consolidated Interest Expense” shall mean, as of any date of
determination for the four consecutive fiscal quarter period ending on such
date, all interest expense (excluding amortization of debt discount and
premium, but including the interest component under Capital Leases and synthetic
leases, tax retention operating leases, off-balance sheet loans and similar
off-balance sheet financing products) for such period of the Borrower and its
Subsidiaries on a Consolidated basis.


 


“Consolidated Leverage Ratio” shall mean, as of the last day of
any fiscal quarter of the Borrower, for the Borrower and its Subsidiaries on a
Consolidated basis, the ratio of (a) Consolidated Funded Debt of the
Borrower and its Subsidiaries on such date less the outstanding amount
of all Performance Letters of Credit (including Letters of Credit issued
hereunder that are Performance Letters of Credit) to the extent undrawn to
(b) Consolidated EBITDA.


 


“Consolidated Net Income” shall mean, as of any date of
determination for the four consecutive fiscal quarter period ending on such
date, the net income of the Borrower and its Subsidiaries on a Consolidated
basis for such period, all as determined in accordance with GAAP.


 


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


 


“Control” shall mean 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.


 


“Copyright
Licenses” shall mean any agreement, whether written or oral, providing for
the grant by or to a Person of any right under any Copyright, including,
without limitation, any thereof referred to in Schedule 3.16.


 


“Copyrights” shall mean all copyrights of the Credit Parties and
their Subsidiaries in all Works, now existing or hereafter created or acquired,
all registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Copyright Office or in any similar office or
agency of the United States, any state thereof or any other country or any
political subdivision thereof, or otherwise, including, without limitation, any
thereof referred to in Schedule 3.16 and all renewals thereof.


 


“Credit Documents” shall mean this Agreement, each of the Notes,
any Joinder Agreement, the Letters of Credit, LOC Documents, Disclosure Letter
and the Security Documents and all other agreements, documents, certificates
and instruments delivered to the


 


8

















 


Administrative Agent or any Lender by any Credit Party in connection
therewith (other than any agreement, document, certificate or instrument
related to a Hedging Agreement).


 


“Credit
Exposure” shall mean, as to any Lender at any time (a) if its Commitment is in existence at such time, the amount
of its Commitment and (b) if its
Commitment is not in existence at such time, the amount of its Committed Funded
Exposure.


 


“Credit Party” shall mean any of the Borrower or the Guarantors.


 


“Credit Party Obligations” shall mean, without duplication, (a) all of the obligations, indebtedness
and liabilities of the Credit Parties to the Lenders (including the Issuing
Lender) and the Administrative Agent, whenever arising, under this Agreement,
the Notes or any of the other Credit Documents, including principal, interest,
fees, reimbursements and indemnification obligations and other amounts
(including, but not limited to, any interest accruing after the occurrence of a
filing of a petition of bankruptcy under the Bankruptcy Code with respect to
any Credit Party, regardless of whether such interest is an allowed claim under
the Bankruptcy Code) and (b) all
liabilities and obligations, whenever arising, owing from any Credit Party or
any of their Subsidiaries to any Hedging Agreement Provider arising under any
Secured Hedging Agreement.


 


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


 


“Default” shall mean any of the events specified in Section 7.1,
whether or not any requirement for the giving of notice or the lapse of time,
or both, or any other condition, has been satisfied.


 


“Defaulting
Lender” shall mean, subject to Section 2.21(b) any Lender that,
as determined by the Administrative Agent (with notice to the Borrower of such
determination), (a) has failed to
perform any of its funding obligations hereunder,  including in respect of its Loans or
participations in Letters of Credit or Swingline Loans, within three Business
Days of the date required to be funded by it hereunder, unless such obligation
is the subject of a good faith dispute, (b) has
notified the Borrower or the Administrative Agent that it does not intend to
comply with its funding obligations or has made a public statement to that
effect with respect to its funding obligations hereunder or, except in
connection with a good faith dispute, under other agreements in which it
commits to extend credit, (c) has
failed, within three Business Days after request by the Administrative Agent,
to confirm in a manner satisfactory to the Administrative Agent that it will
comply with its funding obligations, or (d) has,
or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief
Law, or (ii) had appointed for it a
receiver, custodian, conservator, trustee, administrator, assignee for the
benefit of creditors or similar Person charged with reorganization or
liquidation of its business or assets, including the Federal Deposit Insurance
Corporation or any other state or federal regulatory authority acting in such a
capacity; provided that a Lender shall not be a Defaulting


 


9

















 


Lender
solely by virtue of the ownership or acquisition of any equity interest in that
Lender or any direct or indirect parent company thereof by a Governmental
Authority.


 


“Disclosure Letter” shall mean that certain side letter dated as
of the date hereof between the Borrower and the Administrative Agent, for the
benefit of the Lenders, pursuant to which the Borrower has attached (a) as Schedule 1 thereto, a
complete and accurate list of all Material Contracts of the Credit Parties and
their Subsidiaries in effect as of the Closing Date, (b) as Schedule 2 thereto, the federal tax
identification number for each Credit Party as of the Closing Date, (c) as Schedule 3 thereto, the
Existing Letters of Credit, (d) as Schedule
4 thereto, the insurance coverage of the Credit Parties and their
Subsidiaries as of the Closing Date, setting forth the carrier, policy number,
expiration date, type and amount, (e) as
Schedule 5 thereto, the Indebtedness of the Credit Parties and their
Subsidiaries existing as of the Closing Date as referenced in the financial
statements referenced in Section 3.1 hereof and (f) as Schedule 6 thereto, a complete and accurate list
of all checking, savings or other accounts (including securities accounts) of
the Credit Parties at any bank or other financial institution, or any other
account where money is or may be deposited or maintained with any Person as of
the Closing Date.


 


“Documentation Agents” shall mean U.S. Bank N.A., together with
its successors and assigns, and HSBC Bank USA, N.A., together with its
successors and assigns, in their capacity as documentation agents hereunder.


 


“Dollar Equivalent” shall mean, at any time, (a) with
respect to Dollars or an amount denominated in Dollars, such amount and
(b) with respect to an amount in Foreign Currency or an amount denominated
in any Foreign Currency, the equivalent amount thereof in Dollars as determined
by the Administrative Agent or the applicable Issuing Lender, as the case may
be, at such time on the basis of the Spot Rate (determined by the
Administrative Agent or such Issuing Lender as of the most recent Revaluation
Date) for the purchase of Dollars with such Foreign Currency.


 


“Dollars” and “$” shall mean dollars in lawful currency
of the United States of America.


 


“Domestic Lending Office” shall mean, initially, the office of
each Lender designated as such Lender’s Domestic Lending Office shown in such
Lender’s Administrative Questionnaire; and thereafter, such other office of
such Lender as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office of such Lender at which Alternate Base
Rate Loans of such Lender are to be made.


 


“Domestic Subsidiary” shall mean any Subsidiary that is
organized and existing under the laws of the United States or any state or
commonwealth thereof or under the laws of the District of Columbia.


 


“Eligible Assignee” shall mean (a) a Lender, (b) an
Affiliate of a Lender, (c) an Approved Fund, and (d) any other Person
(other than a natural person) approved by (i) the Administrative Agent, (ii) in
the case of any assignment of a Revolving Commitment, the Issuing Lender, and (iii) unless
an Event of Default has occurred and is continuing and so long as the primary
syndication of the Loans has been completed as determined by Wells Fargo, the


 


10
















 


Borrower (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, “Eligible
Assignee” shall not include the Borrower or any of the Borrower’s Affiliates or
Subsidiaries.


 


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


 


“Environmental Laws” shall mean any and all applicable foreign,
federal, state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirement of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the
environment, as now or may at any time be in effect during the term of this
Agreement.


 


“Equity
Interest” shall mean (a) in the
case of a corporation, capital stock, (b) in
the case of an association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company, membership
interests and (e) any other interest
or participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.


 


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


 


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


 


“Event of Default” shall mean any of the events specified in Section 7.1;
provided, however, that any requirement for the giving of notice
or the lapse of time, or both, or any other condition, has been satisfied.


 


“Exchange Act” shall mean the Securities Exchange Act of 1934,
as amended.


 


“Excluded Taxes” shall mean, with respect to the Administrative
Agent, any Lender, the Issuing Lender 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 of America or
any similar tax imposed by any other jurisdiction in which the Borrower is
located and (c) in the case of a Foreign Lender, any withholding tax that
is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new lending office) or is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with Section 2.16, 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


 


11

















 


assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.16.


 


“Existing Credit Facility” shall mean the credit facility of the
Borrower existing immediately prior to the closing date as evidenced by that
certain Credit Agreement dated as of July 27, 2007 by and among the
Borrower, the Administrative Agent and the lenders from time to time party
thereto.


 


“Existing Letter of Credit” shall mean each of the letters of
credit described by applicant, date of issuance, letter of credit number,
amount, beneficiary and date of expiry on Schedule 3 to the Disclosure Letter.


 


“Exposed LOC Obligations” shall have the meaning set forth in Section 2.21(a)(iii)(B).


 


“Extension of Credit” shall mean, as to any Lender, the making
of a Loan by such Lender, any conversion of a Loan from one Type to another
Type, any extension of any Loan or the issuance of, or participation in, a
Letter of Credit or Swingline Loan by such Lender.


 


“Extraordinary
Receipt” shall mean any cash received by or paid to or for the account of
any Person not in the ordinary course of business, including 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.


 


“Federal Funds Effective Rate” shall have the meaning set forth
in the definition of “Alternate Base Rate”.


 


“Fee
Letter” shall mean the letter agreement dated September 1, 2010,
addressed to the Borrower from Wells Fargo and WFS, as amended, modified,
extended, restated, replaced, or supplemented from time to time.


 


“Fixed
Charge Coverage Ratio” shall mean, as of the last day of any fiscal quarter
of the Borrower, for the Borrower and its Subsidiaries on a Consolidated basis,
the ratio of (a)  Consolidated EBITDA minus Consolidated Capital
Expenditures to (b) the sum of (i) Consolidated Interest Expense to
the extent paid or payable in cash during such period, (ii) all cash
income taxes paid during such period and (iii) Scheduled Funded Debt
Payments for such period.


 


“Flood Hazard Property” shall mean any Mortgaged Property that
is in an area designated by the Federal Emergency Management Agency as having
special flood or mudslide hazards.


 


“Foreign
Currency” shall mean any of the following: 
(a) Euro, Sterling and
Canadian Dollars and (b) any other
currency that is freely tradable and convertible into Dollars that is approved
by the applicable Issuing Lender and the Administrative Agent.


 


“Foreign
Currency Letter of Credit” shall have the meaning set forth in Section 2.3(j).


 


12

















 


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


 


“Foreign
Mortgage Indebtedness” shall mean all Indebtedness incurred by (a) any Foreign Subsidiary (including
Capital Lease Obligations) to finance the purchase of real estate to the extent
such Indebtedness is secured only by such real estate so purchased and (b) all Guaranty Obligations of the
Borrower with respect to Indebtedness of the type described in clause (a) hereof
to the extent such guaranty is permitted hereunder.


 


“Foreign Subsidiary” shall mean any Subsidiary that is not a
Domestic Subsidiary.


 


“Foreign Subsidiary Indebtedness” shall mean, as of any date of
determination, the sum of the outstanding amount of all Indebtedness of Foreign
Subsidiaries (other than Foreign Mortgage Indebtedness).


 


“Fronting
Exposure” shall mean, at any time there is a Defaulting Lender, (a) with respect to any Issuing Lender, such
Defaulting Lender’s Applicable Percentage of the outstanding LOC Obligations
with respect to Letters of Credit issued by such Issuing Lender other than LOC
Obligations as to which such Defaulting Lender’s participation obligation has
been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect
to any Swingline Lender, such Defaulting Lender’s Applicable Percentage of
outstanding Swingline Loans made by such Swingline Lender other than Swingline
Loans as to which such Defaulting Lender’s participation obligation has been
reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof.


 


“Fund” shall mean 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 business.


 


“Funded Debt” shall mean, with respect to any Person, without
duplication with respect to any items which might be categorized as more than
one of the following, (a) all
obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business),  (d) all
obligations (including, without limitation, earnout obligations) of such Person
incurred, issued or assumed as the deferred purchase price of property or
services purchased by such Person (other than trade debt incurred in the
ordinary course of business and due within nine (9) months of the
incurrence thereof) which would appear as liabilities on a balance sheet of
such Person prepared in accordance with GAAP, (e) the
principal portion of all obligations of such Person under Capital Leases, (f) the maximum amount of all letters of
credit issued or bankers’ acceptances facilities created for the account of
such Person and, without duplication, all drafts drawn thereunder (to the
extent unreimbursed), (g) all
preferred Equity Interest or other equity interests issued by such Person and


 


13

















 


which by the terms thereof could be (at the request of the holders
thereof or otherwise) subject to mandatory sinking fund payments, redemption or
other acceleration, (h) the
principal balance outstanding under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet financing
product, (i) obligations of such
Person under non-compete agreements to the extent such obligations are
quantified contingent obligations of such Person, (j) all obligations of such Person under Hedging Agreements,
excluding any portion thereof which would be accounted for as interest expense
under GAAP, (k) all Indebtedness of
others of the type described in clauses (a) through (j) hereof
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed, (l) all Guaranty Obligations of such Person
with respect to Indebtedness of another Person of the type described in
clauses (a) through (j) hereof, only to the extent of the amount
of the underlying obligation and (m) all
Indebtedness of the type described in clauses (a) through (j) hereof
of any partnership or unincorporated joint venture in which such Person is a
general partner or a joint venturer to the extent such Indebtedness is recourse
to such Person.


 


“GAAP” shall mean generally accepted accounting principles in
effect in the United States of America applied on a consistent basis, subject,
however, to the provisions of Section 1.3.


 


“Government Acts” shall have the meaning set forth in Section 2.17.


 


“Government Contract” shall mean any contract entered into
between the Borrower or any of its Subsidiaries and the government of the
United States of America, or any department, agency, public corporation, or
other instrumentality or any state government or any department, agency or
instrumentality providing for the sale of products or services to a
Governmental Authority.


 


“Government Obligations” shall have the meaning set forth in the
definition of “Cash Equivalents.”


 


“Governmental Authority” shall mean the government of the United
States of America 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).


 


“Guarantor” shall mean each Domestic Subsidiary of the Borrower
from time to time party hereto.


 


“Guaranty” shall mean the guaranty of the Guarantors set forth
in Article X.


 


“Guaranty Obligations” shall mean, with respect to any Person,
without duplication with respect to any items which might be categorized as
more than one of the following, any obligations


 


14

















 


of such Person (other than endorsements in the ordinary course of
business of negotiable instruments for deposit or collection) guaranteeing or
intended to guarantee any Indebtedness of any other Person in any manner,
whether direct or indirect, and including without limitation any obligation,
whether or not contingent, (a) to
purchase any such Indebtedness or any property constituting security therefor, (b) to advance or provide funds or other
support for the payment or purchase of any such Indebtedness or to maintain
working capital, solvency or other balance sheet condition of such other Person
(including without limitation keep well agreements, maintenance agreements,
comfort letters or similar agreements or arrangements) for the benefit of any
holder of Indebtedness of such other Person, (c) to
lease or purchase property, securities or services primarily for the purpose of
assuring the holder of such Indebtedness, or (d) to
otherwise assure or hold harmless the holder of such Indebtedness against loss
in respect thereof.  The amount of any
Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount
(or maximum principal amount, if larger) of the Indebtedness in respect of
which such Guaranty Obligation is made.


 


“Hawthorne Property” shall mean the real property owned by the
Borrower which is located in Hawthorne, California.


 


“Hedging Agreement Provider” shall mean any Person that enters
into a Secured Hedging Agreement with a Credit Party or any of its Subsidiaries
that is permitted by Section 6.1(e) to the extent such Person is a
Lender, an Affiliate of a Lender or any other Person that was a Lender (or an
Affiliate of a Lender) at any time (or whose Affiliate has ceased to be a
Lender) under the Credit Agreement; provided, in the case of a Secured
Hedging Agreement with a Person who is no longer a Lender, such Person shall be
considered a Hedging Agreement Provider only through the stated maturity date
(without extension or renewal) of such Secured Hedging Agreement.


 


“Hedging Agreements” shall mean, with respect to any Person, any
agreement entered into to protect such Person against fluctuations in interest
rates, or currency or raw materials values, including, without limitation, any
interest rate swap, cap or collar agreement or similar arrangement between such
Person and one or more counterparties, any foreign currency exchange agreement,
currency protection agreements, commodity purchase or option agreements or
other interest or exchange rate hedging agreements.


 


“Incremental Revolving Facility” shall have the meaning set
forth in  Section 2.1(f).


 


“Indebtedness” shall mean, with respect to any Person, without
duplication with respect to any items which might be categorized as more than
one of the following, (a) all
obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all obligations of such Person under
conditional sale or other title retention agreements relating to property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business), (d) all obligations
(including, without limitation, earnout obligations) of such Person incurred,
issued or assumed as the deferred purchase price of property or services
purchased by such Person (other than trade debt incurred in the ordinary course
of business and due within nine (9) months of the incurrence thereof)
which would appear as liabilities on a balance sheet of such Person, (e) all obligations of


 


15

















 


such Person under take-or-pay or similar arrangements or under
commodities agreements, (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on,
or payable out of the proceeds of production from, property owned or acquired
by such Person, whether or not the obligations secured thereby have been
assumed, (g) the principal portion
of all Capital Lease Obligations plus any accrued interest thereon, (h) all obligations of such Person under
Hedging Agreements, excluding any portion thereof which would be accounted for
as interest expense under GAAP, (i) the
maximum amount of all letters of credit issued or bankers’ acceptances
facilities created for the account of such Person and, without duplication, all
drafts drawn thereunder (to the extent unreimbursed), (j) all preferred Equity Interest issued by such Person and
which by the terms thereof could be (at the request of the holders thereof or
otherwise) subject to mandatory sinking fund payments, redemption or other
acceleration, (k) the principal
balance outstanding under any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product plus
any accrued interest thereon, (l) obligations
of such Person under non-compete agreements to the extent such obligations are
quantified contingent obligations of such Person, (m) all Guaranty Obligations of such Person with respect to
Indebtedness of another Person of the type described in clauses (a) through
(l) hereof, only to the extent of the amount of the underlying obligation,
and (n) all indebtedness of the type
described in clauses (a) through (l) of any partnership or
unincorporated joint venture in which such Person is a general partner or a
joint venturer to the extent such Indebtedness is recourse to such Person.


 


“Indemnified
Taxes” shall mean Taxes other than Excluded Taxes.


 


“Indemnitee”
shall have the meaning set forth in Section 9.5(b).


 


“Insolvency” shall mean, with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of such term as
used in Section 4245 of ERISA.


 


“Intellectual Property” shall mean, collectively, all
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks and
Trademark Licenses of the Credit Parties and their Subsidiaries, all goodwill
associated therewith and all rights to sue for infringement thereof.


 


“Interest Determination Date” shall have the meaning specified
in the definition of “Applicable Percentage”.


 


“Interest Payment Date” shall mean (a) as to any Alternate Base Rate Loan, the last Business Day
of each March, June, September and December and on the applicable
Maturity Date, (b) as to any LIBOR
Rate Loan having an Interest Period of three months or less, the last day of
such Interest Period, (c) as to any
LIBOR Rate Loan having an Interest Period longer than three months, (i) each three (3) month anniversary
following the first day of such Interest Period and (ii) the last day of such Interest Period and (d) as to any Loan which is the subject of
a mandatory prepayment required pursuant to Section 2.7(b), the date on
which such mandatory prepayment is due.


 


16

















 


“Interest Period” shall mean, with respect to any LIBOR Rate
Loan,


 


(a)           initially, the period commencing on the Borrowing
Date or conversion date, as the case may be, with respect to such LIBOR Rate
Loan and ending one, two, three or six months thereafter, subject to
availability to all applicable Lenders, as selected by the Borrower in the
Notice of Borrowing or Notice of Conversion given with respect thereto; and


 


(b)           thereafter, each period commencing on the last day
of the immediately preceding Interest Period applicable to such LIBOR Rate Loan
and ending one, two, three or six months thereafter, subject to availability to
all applicable Lenders, as selected by the Borrower by irrevocable notice to
the Administrative Agent not less than three Business Days prior to the last
day of the then current Interest Period with respect thereto; provided
that the foregoing provisions are subject to the following:


 


(i)            if any Interest Period
pertaining to a LIBOR Rate Loan would otherwise end on a day that is not a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;


 


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


 


(iii)          if the Borrower shall fail
to give notice as provided above, the Borrower shall be deemed to have selected
an Alternate Base Rate Loan to replace the affected LIBOR Rate Loan;


 


(iv)          no Interest Period in
respect of any Loan shall extend beyond the Maturity Date; and


 


(v)           no more than six (6) LIBOR
Rate Loans may be in effect at any time. 
For purposes hereof, LIBOR Rate Loans with different Interest Periods
shall be considered as separate LIBOR Rate Loans, even if they shall begin on
the same date and have the same duration, although borrowings, extensions and
conversions may, in accordance with the provisions hereof, be combined at the
end of existing Interest Periods to constitute a new LIBOR Rate Loan with a
single Interest Period.


 


“Internal Control Event” shall mean a material weakness in, or
fraud that involves management or other employees who have a significant role
in, any Credit Party’s internal controls over financial reporting, in each case
as described in the Securities Laws.


 


17

















 


“Investment” shall mean (a) the
acquisition (whether for cash, property, services, assumption of Indebtedness,
securities or otherwise) of shares of Equity Interest, other ownership
interests or other securities of any Person or bonds, notes, debentures or all
or substantially all of the assets of any Person, (b) any deposit with, or advance, loan or other extension of
credit to, any Person (other than deposits made in the ordinary course of
business) or (c) any other capital
contribution to or investment in any Person, including, without limitation, any
Guaranty Obligation, only to the extent of the amount of the underlying
obligation (including any support for a letter of credit issued on behalf of
such Person, but excluding Guaranty Obligations relating to the guaranty of Subsidiaries’
performance under real property leases or product sales or service agreements)
incurred for the benefit of such Person.


 


“Issuing Lender” shall mean Wells Fargo or any other Lender
agreed to by the Borrower and the Administrative Agent, together with any
successor to any such issuing lender hereunder.


 


“Issuing Lender Fees” shall have the meaning set forth in Section 2.5(c).


 


“Joinder Agreement” shall mean a Joinder Agreement in
substantially the form of Exhibit 1.1(c), executed and delivered by
an Additional Credit Party in accordance with the provisions of Section 5.10.


 


“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.


 


“Lender” shall have the meaning set forth in the first paragraph
of this Agreement and shall include the Revolving Lenders, the Issuing Lender
and the Swingline Lender.


 


“Lender Commitment Letter” shall mean, with respect to any
Lender, the letter (or other correspondence) to such Lender from the
Administrative Agent notifying such Lender of its LOC Commitment and/or
Commitment Percentage.


 


“Lender Consent” shall mean any lender consent delivered by a
Lender on the Closing Date in the form of Exhibit 4.1(a).


 


“Letter of Credit” shall mean any letter of credit issued by the
Issuing Lender pursuant to the terms hereof, as such letter of credit may be
amended, modified, restated, extended, renewed, increased, replaced or
supplemented from time to time.  A Letter
of Credit may be issued in Dollars or in a Foreign Currency, in accordance with
Section 2.3.


 


“Letter of Credit Facing Fee” shall have the meaning set forth
in Section 2.5(c).


 


“Letter of Credit Fee” shall have the meaning set forth in Section 2.5(b).


 


“LIBOR” shall mean, for any LIBOR Rate Loan for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBOR01 Page (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest


 


18

















 


Period for a term comparable to such Interest Period.  If for any reason such rate is not available,
then “LIBOR” shall mean the rate per annum at which, as determined by the
Administrative Agent in accordance with its customary practices, Dollars in an
amount comparable to the Loans then requested are being offered to leading
banks at approximately 11:00 A.M. London time, two (2) Business Days
prior to the commencement of the applicable Interest Period for settlement in
immediately available funds by leading banks in the London interbank market for
a period equal to the Interest Period selected.


 


“LIBOR Lending Office” shall mean, initially, the office(s) of
each Lender designated as such Lender’s LIBOR Lending Office in such Lender’s
Administrative Questionnaire; and thereafter, such other office of such Lender
as such Lender may from time to time specify to the Administrative Agent and
the Borrower as the office of such Lender at which the LIBOR Rate Loans of such
Lender are to be made.


 


“LIBOR Rate” shall mean a LIBOR rate per annum (rounded upwards,
if necessary, to the next higher 1/100th of 1%) determined by the
Administrative Agent in accordance with the definition of “LIBOR”.


 


“LIBOR Rate Loan” shall mean Loans the rate of interest
applicable to which is based on the LIBOR Rate.


 


“Lien” shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge
or other security interest or any preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement and any Capital Lease having substantially the same economic effect
as any of the foregoing).


 


“Loan” shall mean a Revolving Loan and/or a Swingline Loan, as
appropriate.


 


“LOC Commitment” shall mean the commitment of the Issuing Lender
to issue Letters of Credit and with respect to each Revolving Lender, the
commitment of such Revolving Lender to purchase Participation Interests in the
Letters of Credit up to such Lender’s Commitment Percentage as specified in the
Lender Commitment Letter or in the Register, or in the applicable Assignment
and Assumption, as such amount may be reduced from time to time in accordance
with the provisions hereof.


 


“LOC Committed Amount” shall have the meaning set forth in Section 2.3(a).


 


“LOC Documents” shall mean, with respect to each Letter of
Credit, such Letter of Credit, any amendments thereto, any documents delivered
in connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application or
applicable only to such Letter of Credit) governing or providing for (a) the rights and obligations of the
parties concerned or (b) any
Collateral for such obligations.


 


“LOC Obligations” shall mean, at any date of determination, the
sum of (a) with respect to all
Letters of Credit issued in Dollars, the Dollar Equivalent of the maximum
amount which is,


 


19

















 


or at any time thereafter may become, available to be drawn under such
Letters of Credit then outstanding, assuming compliance with all requirements
for drawings referred to in such Letters of Credit, (b) with respect to all Letters of Credit issued in a Foreign
Currency, the Dollar Equivalent of the maximum amount which is, or at any time
thereafter may become, available to be drawn under such Letter of Credit then
outstanding, assuming compliance with all requirements for drawings referred to
in such Letters of Credit and (c) the
aggregate amount of all drawings under Letters of Credit honored by the Issuing
Lender but not theretofore reimbursed.


 


“Mandatory LOC Borrowing” shall have the meaning set forth in Section 2.3(e).


 


“Mandatory Swingline Borrowing” shall have the meaning set forth
in Section 2.4(b)(ii).


 


“Material Adverse Effect” shall mean a material adverse effect
on (a) the business, operations,
property, assets, condition (financial or otherwise) or prospects  of the Borrower or of the Borrower and its Subsidiaries
taken as a whole, (b) the ability of
the Borrower or any Guarantor to perform its obligations, when such obligations
are required to be performed, under this Agreement, any of the Notes or any
other Credit Document or (c) the
validity or enforceability of this Agreement, any of the Notes or any of the
other Credit Documents or the rights or remedies of the Administrative Agent or
the Lenders hereunder or thereunder.


 


“Material
Contract” shall mean (a) any
contract or other agreement listed on Schedule 1 of the Disclosure
Letter, (b) any contract or other
agreement, written or oral, of the Borrower or any of its Subsidiaries
representing at least 10.0% of the total Consolidated revenues of the Borrower
and its Subsidiaries for any fiscal year and (c) any
other contract, agreement, permit or license, written or oral, of the Borrower
or any of its Subsidiaries as to which the breach, nonperformance, cancellation
or failure to renew by any party thereto, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.


 


“Material
Government Contract” shall mean a Government Contract with potential
payment obligations by a Governmental Authority to the Borrower or any of its
Subsidiaries representing at least 10.0% of the total Consolidated revenues of
the Borrower and its Subsidiaries for any fiscal year.


 


“Materials
of Environmental Concern” shall mean any gasoline or petroleum (including
crude oil or any extraction thereof) or petroleum products or any hazardous or
toxic substances, materials or wastes, defined or regulated as such in or under
any Environmental Law, including, without limitation, asbestos, perchlorate,
polychlorinated biphenyls and urea-formaldehyde insulation.


 


“Maturity
Date” shall mean the date that is five (5) years following the Closing
Date.


 


“Moody’s” shall mean Moody’s Investors Service, Inc.


 


“Mortgage
Instrument” shall mean any mortgage, deed of trust or deed to secure debt
executed by a Credit Party in favor of the Administrative Agent, for the
benefit of the Secured


 


20
















 


Parties,
pursuant to the terms of Section 5.10 or 5.12, as the same may be amended,
modified, extended, restated, replaced, or supplemented from time to time.


 


“Mortgage Policy” shall mean, with respect to any Mortgage
Instrument, an ALTA mortgagee title insurance policy issued by a title
insurance company (the “Title Insurance Company”) selected by the
Administrative Agent in an amount satisfactory to the Administrative Agent, in
form and substance satisfactory to the Administrative Agent.


 


“Mortgaged
Property” shall mean any owned real property of a Credit Party listed on Schedule
3.19(d).


 


“Multiemployer Plan” shall mean a Plan that is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.


 


“Non-Defaulting
Lender” shall mean, at any time, each Lender that is not a Defaulting
Lender at such time.


 


“Note” or “Notes” shall mean the Revolving Notes and/or
the Swingline Note, collectively, separately or individually, as appropriate.


 


“Notice of Borrowing” shall mean a request for a Revolving Loan
borrowing pursuant to Section 2.1(b)(i) or a request for a Swingline
Loan borrowing pursuant to Section 2.4(b)(i), as appropriate.  A Form of Notice of Borrowing is
attached as Exhibit 1.1(d).


 


“Notice of Conversion/Extension” shall mean the written notice
of conversion of a LIBOR Rate Loan to an Alternate Base Rate Loan or an
Alternate Base Rate Loan to a LIBOR Rate Loan, or extension of a LIBOR Rate
Loan, in each case substantially in the form of Exhibit 1.1(e).


 


“Obligations” shall mean, collectively, Loans, LOC Obligations,
and all other obligations of the Credit Parties to the Administrative Agent and
the Lenders under the Credit Documents.


 


“OFAC”
shall mean the U.S. Department of the Treasury’s Office of Foreign Assets
Control.


 


“Operating Lease” shall mean, as applied to any Person, any
lease (including, without limitation, leases which may be terminated by the
lessee at any time) of any property (whether real, personal or mixed) which is
not a Capital Lease other than any such lease in which that Person is the
lessor.


 


“Other Taxes” shall mean 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 Credit
Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Credit Document.


 


“Participant”
has the meaning assigned to such term in clause (d) of Section 9.6.


 


21

















 


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


 


“Participation Interest” shall mean a participation interest
purchased by a Revolving Lender in LOC Obligations as provided in Section 2.3(c) and
in Swingline Loans as provided in Section 2.4.


 


“Patent Licenses” shall mean all agreements, whether written or
oral, providing for the grant by or to a Person of any right to manufacture,
use or sell any invention covered by a Patent, including, without limitation,
any thereof referred to in Schedule 3.16.


 


“Patents” shall mean (a) all
letters patent of the United States or any other country, now existing or
hereafter arising, and all improvement patents, reissues, reexaminations,
patents of additions, renewals and extensions thereof, including, without
limitation, any thereof referred to in Schedule 3.16, and (b) all applications for letters patent of
the United States or any other country, now existing or hereafter arising, and
all provisionals, divisions, continuations and continuations-in-part and
substitutes thereof, including, without limitation, any thereof referred to in Schedule
3.16.


 


“Patriot Act” shall mean The Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001 (Title III of Pub. L. No. 107-56 (signed into law
October 26, 2001)), as amended or modified from time to time.


 


“PBGC” shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.


 


“Performance Letter of Credit” means a
standby letter of credit issued to ensure or otherwise support the performance
of services and/or delivery of goods (including, without limitation, standby
letters of credit issued (a) in
connection with bids for the performance of services and/or delivery of goods
or (b) in connection with advance
payments for the performance of services and/or delivery of goods) by or on
behalf of the Borrower or any of its Subsidiaries.


 


“Permitted Acquisition” shall mean an acquisition or any series
of related acquisitions by the Borrower or its Subsidiaries of (a) all or substantially all of the assets
or a majority of the outstanding Voting Stock or economic interests of a Person
or (b) any division, line of business or other business unit of a Person
(such Person or such division, line of business or other business unit of such
Person shall be referred to herein as the “Target”), in each case that
is a type of business (or assets used in a type of business) permitted to be
engaged in by the Credit Parties and their Subsidiaries pursuant to
Section 6.3, in each case so long as:


 


(i) no Default or Event of Default shall then exist or would
exist after giving effect thereto;


 


22

















 


(ii) the Credit Parties shall demonstrate to the reasonable
satisfaction of the Administrative Agent that, after giving effect to the
acquisition on a Pro Forma Basis the Consolidated Leverage Ratio is less than
or equal to 2.75 to 1.0;


 


(iii) the Administrative Agent, on behalf of the Secured Parties,
shall have received (or shall receive within thirty (30) days of the closing of
such acquisition) a first priority perfected security interest in all property
(including, without limitation, Equity Interest) acquired with respect to the
Target to the extent required pursuant to the terms of Sections 5.10 and 5.12
and the Target, if a Person, shall have executed a Joinder Agreement to the
extent required pursuant to the terms of Section 5.10;


 


(iv) for any Permitted Acquisition with total consideration in
excess of $35,000,000, the Administrative Agent and the Lenders shall have
received (A) a description of the
material terms of such acquisition (B) audited
financial statements (or, if unavailable, management-prepared financial
statements) of the Target for its two most recent fiscal years and for any
fiscal quarters ended within the fiscal year to date, (C) Consolidated projected income statements of the Borrower
and its Consolidated Subsidiaries (giving effect to such acquisition), and (D) not less than five (5) Business
Days prior to the consummation of any such acquisition, a certificate
substantially in the form of Exhibit 1.1(f), executed by a
Responsible Officer of the Borrower certifying that such Permitted Acquisition
complies with the requirements of this Agreement;


 


(v) such acquisition shall not be a “hostile” acquisition and
shall have been approved by the Board of Directors (or equivalent) and/or
shareholders (or equivalent) of the applicable Credit Party, to the extent
required, and the Target;


 


(vi) after giving effect to such acquisition, there shall be at
least $15,000,000 of Revolver Availability; and


 


(vii) the aggregate cash consideration (including without
limitation earn outs or deferred compensation or non-competition arrangements
and the amount of Indebtedness and other liabilities incurred or assumed by the
Borrower and its Subsidiaries) paid by the Borrower and its Subsidiaries in
connection with any single acquisition shall not exceed $75,000,000.


 


“Permitted Investments” shall mean:


 


(a)                                  cash and Cash
Equivalents;


 


(b)                                 Investments
existing as of the Closing Date as set forth on Schedule 1.1(a);


 


(c)                                  receivables
owing to the Credit Parties or any of their Subsidiaries or any receivables and
advances to suppliers and advances to vendors, in each case if created,
acquired or made in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;


 


23

















 


(d)                                 Investments in
and loans to any Credit Party;


 


(e)                                  loans and
advances to officers, directors and employees in an aggregate amount not to
exceed $500,000 at any time outstanding; provided that such loans and
advances shall comply with all applicable Requirements of Law (including
Sarbanes-Oxley);


 


(f)                                    Investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;


 


(g)                                 Investments,
acquisitions or transactions permitted under Section 6.4(b);


 


(h)                                 Permitted
Acquisitions;


 


(i)                                     Hedging
Agreements to the extent permitted hereunder;


 


(j)                                     Investments in
and loans to Foreign Subsidiaries including those created or acquired after the
Closing Date in an aggregate amount for all such investments and loans not to
exceed $10,000,000 in any fiscal year of the Borrower;


 


(k)                                  additional loan
advances and/or Investments of a nature not contemplated by the foregoing
clauses hereof; provided that such loans, advances and/or Investments
made after the Closing Date pursuant to this clause shall not exceed an
aggregate amount of $10,000,000  at any one
time outstanding; and


 


(l)                                     Investments
made in the ordinary course of business in any deferred compensation plans
maintained by the Borrower or its Subsidiaries


 


“Permitted Liens” shall mean:


 


(a)                                  Liens created
by or otherwise existing under or in connection with this Agreement or the
other Credit Documents in favor of the Administrative Agent on behalf of the
Secured Parties or in favor of the Issuing Lender with respect to Letters of
Credit;


 


(b)                                 Liens in favor
of a Hedging Agreement Provider in connection with a Secured Hedging Agreement;
provided that such Liens shall secure the Credit Party Obligations and
the obligations under such Secured Hedging Agreement on a pari passu basis;


 


(c)                                  Liens securing
purchase money Indebtedness and Capital Lease Obligations to the extent
permitted under Section 6.1(c); provided, that (i) any such
Lien attaches to such property concurrently with or within thirty (30) days
after the acquisition thereof and (ii) such Lien attaches solely to the
property so acquired in such transaction;


 


24

















 


(d)                                 Liens for
taxes, assessments, charges or other governmental levies not yet due or as to
which the period of grace (not to exceed sixty (60) days), if any, related
thereto has not expired or which are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect
thereto are maintained on the books of any Credit Party or its Subsidiaries, as
the case may be, in conformity with GAAP;


 


(e)                                  statutory Liens
such as carriers’, warehousemen’s, mechanics’, materialmen’s, landlords’,
repairmen’s or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than thirty (30) days or which are
being contested in good faith by appropriate proceedings; provided that
a reserve or other appropriate provision shall have been made therefor;


 


(f)                                    pledges or
deposits in connection with workers’ compensation, unemployment insurance and
other social security legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;


 


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


 


(h)                                 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;


 


(i)                                     Liens existing
on the Closing Date and set forth on Schedule 1.1(b); provided
that (i) no such Lien shall at any time be extended to cover property or
assets other than the property or assets subject thereto on the Closing Date
and improvements thereon and (ii) the principal amount of the Indebtedness
secured by such Lien shall not be extended, renewed, refunded or refinanced;


 


(j)                                     any extension,
renewal or replacement (or successive extensions, renewals or replacements), in
whole or in part, of any Lien referred to in this definition (other than Liens
set forth on Schedule 1.1(b)); provided that such extension,
renewal or replacement Lien shall be limited to all or a part of the property
which secured the Lien so extended, renewed or replaced (plus improvements on
such property);


 


(k)                                  Liens arising
in the ordinary course of business by virtue of any contractual, statutory or
common law provision relating to banker’s Liens, rights of set-off or similar
rights and remedies covering deposit or securities accounts (including funds or
other assets credited thereto) or other funds maintained with a depository
institution or securities intermediary;


 


25

















 


(l)                                     any zoning,
building or similar laws or rights reserved to or vested in any Governmental
Authority;


 


(m)                               restrictions on
transfers of securities imposed by applicable Securities Laws;


 


(n)                                 Liens arising
out of judgments or awards not resulting in an Event of Default; provided
that the applicable Credit Party or Subsidiary shall in good faith be
prosecuting an appeal or proceedings for review;


 


(o)                                 Liens on the
property of a Person existing at the time such Person becomes a Subsidiary of a
Credit Party in a transaction permitted hereunder securing Indebtedness
permitted under Section 6.1(f) consisting of letters of credit (which
must be either terminated or replaced with Letters of Credit within ninety (90)
days after such acquisition), Indebtedness incurred to provide all or a portion
of the purchase price or cost of construction of an asset, Capital Leases and
mortgages, in each case only to the extent existing at the time of such
acquisition and not incurred in contemplation thereof; provided, however,
that any such Lien may not extend to any other property of any Credit Party or
any other Subsidiary that is not a Subsidiary of such Person;


 


(p)                                 any interest or
title of a lessor, licensor or sublessor under any lease, license or sublease
entered into by any Credit Party or any Subsidiary thereof in the ordinary
course of its business and covering only the assets so leased, licensed or
subleased;


 


(q)                                 assignments of
insurance or condemnation proceeds provided to landlords (or their mortgagees)
pursuant to the terms of any lease and Liens or rights reserved in any lease
for rent or for compliance with the terms of such lease;


 


(r)                                    cash collateral
securing letters of credit permitted to the extent permitted under Section 6.1(j) in
an aggregate amount not to exceed $50,000,000 at any time outstanding;


 


(s)                                  Liens securing
obligations in respect of export/import bank financing arrangements of the
Borrower, so long as the principal amount of Indebtedness and other obligations
secured thereby does not exceed $10,000,000 in the aggregate; and


 


(t)                                    additional
Liens so long as the principal amount of Indebtedness and other obligations
secured thereby does not exceed $2,500,000  in the
aggregate and in no event shall such Liens extend to the Hawthorne Property.


 


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


 


“Plan” shall mean, as of any date of determination, any employee
benefit plan which is covered by Title IV of ERISA and in respect of which any
Credit Party or a Commonly


 


26

















 


Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.


 


“Pledge Agreement” shall mean that certain Pledge Agreement
dated as of the Closing Date executed by the Credit Parties in favor of the
Administrative Agent, for the benefit of the Secured Parties, as the same may
from time to time be amended, modified, extended, restated, replaced, or
supplemented from time to time in accordance with the terms hereof and thereof.


 


“Prime Rate” shall have the meaning set forth in the definition
of Alternate Base Rate.


 


“Pro
Forma Basis” shall mean, with respect to any transaction, that such
transaction shall be deemed to have occurred as of the first day of the
year-to-date period ending as of the most recent quarter end preceding the date
of such transaction.


 


“Properties” shall have the meaning set forth in Section 3.10(a).


 


“Register” shall have the meaning set forth in Section 9.6(c).


 


“Reimbursement Obligation” shall mean the obligation of the
Borrower to reimburse the Issuing Lender pursuant to Section 2.3(d) for
amounts drawn under Letters of Credit.


 


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


 


“Reorganization” shall mean, with respect to any Multiemployer
Plan, the condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.


 


“Reportable Event” shall mean any of the events set forth in Section 4043(c) of
ERISA, other than those events as to which the thirty-day notice period is
waived under PBGC Reg. §4043.


 


“Required
Lenders” shall mean, as of any date of determination, Lenders having Credit
Exposures representing more than 50% of the Credit Exposures of all Lenders.
The Credit Exposure of any Defaulting Lender shall be disregarded in
determining Required Lenders at any time.


 


“Requirement
of Law” shall mean, as to any Person, (a) the articles or
certificate of incorporation, by-laws or other organizational or governing
documents of such Person, and (b) all international, foreign,
Federal, state and local statutes, treaties, rules, guidelines, regulations,
ordinances, codes, executive orders, 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 


 


27

















 


law);
in each case applicable to or binding upon such Person or any of its property
or to which such Person or any of its property is subject.


 


“Responsible Officer” shall mean, for any Credit Party, any duly
authorized officer thereof and in which the Administrative Agent has an
incumbency certificate indicating such officer is a duly authorized officer
thereof.


 


“Restricted
Payment” shall mean (a) any
dividend or other distribution, direct or indirect, on account of any shares
(or equivalent) of any class of Equity Interest of any Credit Party or any of
its Subsidiaries, now or hereafter outstanding, (b) any redemption, retirement, sinking fund or similar
payment, purchase or other acquisition for value, direct or indirect, of any
shares (or equivalent) of any class of Equity Interest of any Credit Party or
any of its Subsidiaries, now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any
class of Equity Interest of any Credit Party or any of its Subsidiaries, now or
hereafter outstanding, (d) any
payment with respect to any earnout obligation, (e) any payment or prepayment of principal of, premium, if any,
or interest on, redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to, any Subordinated Debt of any Credit Party or
any of its Subsidiaries and (f) the
payment by any Credit Party or any of its Subsidiaries of any extraordinary
salary, bonus or other form of compensation to any Person who is directly or
indirectly a significant partner, shareholder, owner or executive officer of
any such Person, to the extent such extraordinary salary, bonus or other form
of compensation is not included in the corporate overhead of such Credit Party
or such Subsidiary.


 


“Revaluation Date” shall mean each of the following:  (a) each date a Loan is borrowed or a
Letter of Credit is issued; (b) each date there is a drawing under any
Foreign Currency Letter of Credit; (c) the last Business Day of each
calendar month; and (d) such additional dates as the Administrative Agent,
the Issuing Lender, the Required Lenders or the Borrower shall specify.


 


“Revolver Availability” shall mean, as of any date of
determination, the amount that the Borrower is able to borrow on such date
under the Revolving Committed Amount without a Default or Event of Default
occurring or existing after giving pro forma effect to such borrowing.


 


“Revolving
Commitment” shall mean, with respect to each Revolving Lender, the
commitment of such Revolving Lender to make Revolving Loans in an aggregate
principal amount at any time outstanding up to an amount equal to such
Revolving Lender’s Commitment Percentage of the Revolving Committed Amount.


 


“Revolving
Committed Amount” shall have the meaning set forth in Section 2.1(a).


 


“Revolving
Lender” shall mean, as of any date of determination, a Lender holding a
Revolving Commitment, a Revolving Loan or a Participation Interest on such
date.


 


“Revolving
Loan” shall have the meaning set forth in Section 2.1.


 


28

















 


“Revolving
Note” or “Revolving Notes” shall mean the promissory notes of the
Borrower provided pursuant to Section 2.1(e) in favor of any of the
Revolving Lenders evidencing the Revolving Loan provided by any such Revolving
Lender pursuant to Section 2.1(a), individually or collectively, as
appropriate, as such promissory notes may be amended, modified, extended,
restated, replaced, or supplemented from time to time.


 


“S&P” shall mean Standard & Poor’s Ratings
Services, a division of The McGraw Hill Companies, Inc.


 


“Sanctioned
Entity” shall mean (a) a country or a government of a
country, (b) an agency of the government of a country, (c) an
organization directly or indirectly controlled by a country or its government,
or (d) a
person or entity resident in or determined to be resident in a country, that is
subject to a country sanctions program administered and enforced by OFAC.


 


“Sanctioned
Person” shall mean a person named on the list of Specially Designated
Nationals maintained by OFAC.


 


“Sarbanes-Oxley” shall mean the Sarbanes-Oxley Act of 2002.


 


“Scheduled Funded Debt Payments” shall mean, as of any date of
determination for the Borrower and its Subsidiaries, the sum of all scheduled
payments of principal on Funded Debt for the applicable period ending on the
date of determination (including payments due on Capital Leases and mortgaged
real properties (including any Mortgaged Properties) during the applicable
period ending on the date of determination).


 


“SEC” shall mean the Securities and Exchange Commission or any
successor Governmental Authority.


 


“Secured Hedging Agreement” shall mean any Hedging Agreement
between a Credit Party and a Hedging Agreement Provider, as amended, modified,
extended, restated, replaced, or supplemented from time to time.


 


“Secured Parties” shall mean the Administrative Agent, the
Lenders and the Hedging Agreement Providers.


 


“Securities Act” shall mean the Securities Act of 1933, together
with any amendment thereto or replacement thereof and any rules or
regulations promulgated thereunder.


 


“Securities Laws” shall mean the Securities Act, the Exchange
Act, Sarbanes-Oxley and the applicable accounting and auditing principles,
rules, standards and practices promulgated, approved or incorporated by the SEC
or the Public Company Accounting Oversight Board, as each of the foregoing may
be amended and in effect on any applicable date hereunder.


 


“Security Agreement” shall mean that certain Security Agreement
dated as of the Closing Date executed by the Credit Parties in favor of the
Administrative Agent, for the benefit of the


 


29

















 


Secured Parties, as amended, modified, extended, restated, replaced, or
supplemented from time to time in accordance with its terms.


 


“Security Documents” shall mean the Security Agreement, the
Pledge Agreement, the Mortgage Instruments and all other agreements, documents
and instruments relating to, arising out of, or in any way connected with any
of the foregoing documents or granting to the Administrative Agent, Liens or
security interests to secure, inter alia, the Credit Party Obligations whether
now or hereafter executed and/or filed, each as may be amended from time to
time in accordance with the terms hereof, executed and delivered in connection
with the granting, attachment and perfection of the Administrative Agent’s
security interests and liens arising thereunder, including, without limitation,
UCC financing statements.


 


“Single Employer Plan” shall mean any Plan that is not a
Multiemployer Plan.


 


“Spot Rate” for any Foreign Currency on
any date means the rate determined by the Administrative Agent or the
applicable Issuing Lender, as applicable, to be the rate quoted by the Person
acting in such capacity as the spot rate for
the purchase by such Person of such currency with another currency through its
principal foreign exchange trading office at approximately 11:00 a.m. on
the date two (2) Business Days prior to the date as of which the foreign
exchange computation is made; provided that the Administrative Agent or the
applicable Issuing Lender may obtain
such spot rate from another financial institution designated by the Administrative
Agent or the applicable Issuing Lender
if the Person acting in such
capacity does not have as of the date of determination a spot buying rate for
any such currency; and provided further that the Issuing Lender may use such spot rate quoted on the date as of which the foreign
exchange computation is made in the case of any Letter of Credit denominated in
a Foreign Currency.


 


“Sterling”
and “£” mean the lawful currency of the United Kingdom.


 


“Subordinated Debt” shall mean any Indebtedness incurred by
any Credit Party which by its terms is specifically subordinated in right of
payment to the prior payment of the Credit Party Obligations and contains
subordination and other terms acceptable to the Administrative Agent.


 


“Subsidiary” shall mean, as to any Person, a corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, limited liability company, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.  Unless otherwise
qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.


 


“Swingline Commitment” shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal amount at
any time outstanding up to the Swingline Committed Amount, and the commitment
of the Revolving Lenders to purchase participation


 


30
















 


interests in the Swingline Loans as provided in
Section 2.4(b)(ii), as such amounts may be reduced from time to time in
accordance with the provisions hereof.


 


“Swingline Committed Amount” shall mean the amount of the
Swingline Lender’s Swingline Commitment as specified in Section 2.4(a).


 


“Swingline Lender” shall mean Wells Fargo and any successor
swingline lender.


 


“Swingline Loan” shall have the meaning set forth in
Section 2.4(a).


 


“Swingline Note” shall mean the promissory note of the Borrower
in favor of the Swingline Lender evidencing the Swingline Loans provided
pursuant to Section 2.4(d), as such promissory note may be amended,
modified, extended, restated, replaced, or supplemented from time to time.


 


“Syndication Agent” shall mean Bank of America, N.A., together
with its successors and assigns, in its capacity as syndication agent
hereunder.


 


“Target” shall have the meaning set forth in the definition of “Permitted
Acquisition”.


 


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


 


“Title
Insurance Company” shall have the meaning set forth in the definition of “Mortgage
Policy”.


 


“Trademark License” shall mean any agreement, whether written or
oral, providing for the grant by or to a Person of any right to use any
Trademark, including, without limitation, any thereof referred to in Schedule
3.16.


 


“Trademarks” shall mean (a) all
trademarks, trade names, corporate names, company names, business names,
fictitious business names, service marks, elements of package or trade dress of
goods or services, logos and other source or business identifiers, together
with the goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark Office
or in any similar office or agency of the United States, any State thereof or
any other country or any political subdivision thereof, including, without
limitation, any thereof referred to in Schedule 3.16 and (b) all renewals thereof including, without
limitation, any thereof referred to in Schedule 3.16.


 


“Tranche” shall mean the collective reference to (a) LIBOR Rate Loans whose Interest Periods
begin and end on the same day and (b) Alternate
Base Rate Loans made on the same day.


 


31

















 


“Transactions” shall mean the closing of this Agreement, the
other Credit Documents and the other transactions contemplated hereby to occur
in connection with such closing (including, without limitation, the initial
borrowings under the Credit Documents and the payment of fees and expenses in
connection with all of the foregoing).


 


“Transfer Effective Date” shall have the meaning set forth in
each Assignment and Assumption.


 


“Type” shall mean, as to any Loan, its nature as an Alternate
Base Rate Loan or LIBOR Rate Loan, as the case may be.


 


“UCC” shall mean the Uniform Commercial Code from time to time
in effect in any applicable jurisdiction.


 


“Voting Stock” shall mean, with respect to any Person, Equity
Interest issued by such Person the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even though the right so
to vote may be or have been suspended by the happening of such a contingency.


 


“Wells Fargo” shall mean Wells Fargo Bank, National Association,
a national banking association, together with its successors and/or assigns.


 


“WFS” shall mean Wells Fargo Securities, LLC, together with its
successors and assigns.


 


“Withholding
Agent” shall mean a Credit Party, the Administrative Agent, or, in the case of any Lender that is treated as a partnership for U.S. federal
income tax purposes, such Lender or any partnership for U.S. federal income tax
purposes that is a direct or indirect (through a chain of entities treated as
flow-through entities for U.S. federal income tax purposes) beneficial owner of
such Lender, or any of their respective agents, that is required under
applicable law to deduct or withhold any Tax from a payment by or on account of
any obligation of any Credit Party under any Credit Document.


 


“Works” shall mean all works which are subject to copyright
protection pursuant to Title 17 of the United States Code.


 


Section 1.2                                   Other
Definitional Provisions.


 


The definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. 
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms.  The words “include,” “includes” and “including”
shall be deemed to be followed by the phrase “without limitation.”  The word “will” shall be construed to have
the same meaning and effect as the word “shall.”  Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person
shall be


 


32

















 


construed to include such Person’s successors and assigns, (c) the
words “herein,” “hereof” and “hereunder,” and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement, (e) any reference to any
law or regulation herein shall, unless otherwise specified, refer to such law
or regulation as amended, modified or supplemented from time to time and
(f) the words “asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


Section 1.3                                   Accounting
Terms.


 


Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and all financial statements required to be delivered hereunder shall be
prepared in accordance with GAAP applied on a basis consistent with the most
recent audited Consolidated financial statements of the Borrower delivered to
the Lenders.  It is acknowledged and
agreed that if at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in the Credit Agreement, 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, which approval
shall not be unreasonably withheld); 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 the Credit Agreement or as reasonably requested thereunder
setting forth a reconciliation between calculations of such ratio or requirement
made before and after giving effect to such change in GAAP.


 


Notwithstanding the foregoing, (a) all
references to leases of any kind in this Agreement or the other Credit
Documents, including without limitation the determination of Capital Leases, Operating
Leases and Capital Lease Obligations, shall be determined in accordance with
GAAP as in effect as of the Closing Date for all purposes, including without
limitation the calculation of any covenant in this Agreement or the calculation
of the Consolidated Leverage Ratio, Consolidated Funded Debt or Indebtedness;
irrespective of whether there occurs after the Closing Date any change in GAAP
that would otherwise affect any such calculation or covenant and (b) the Borrower shall not be required to
provide a reconciliation between calculations concerning the changes in GAAP
referenced in the above clause (a), but will be required to provide any
additional financial information reasonably requested by the Administrative
Agent in connection with such calculations.


 


For purposes of computing the financial covenants set forth in Section 5.9
for any applicable test period, any Permitted Acquisition or permitted sale of
assets (including a stock sale) shall be given pro forma effect as if such
transaction had taken place as of the first day of such applicable test period.


 


33

















 


Section 1.4                                   Time
References.


 


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


 


Section 1.5                                   Execution
of Documents.


 


Unless
otherwise specified, all Credit Documents and all other certificates executed
in connection therewith must be signed by a Responsible Officer.


 


Section 1.6                                   Foreign
Currency.


 


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


 


(b)                                 Any request for
a Letter of Credit in a currency other than Dollars shall be made to the
Administrative Agent and the applicable Issuing Lender, not later than
11:00 A.M., five (5) Business Days prior to the date of the desired
L/C Credit Extension (or such other time or date as may be agreed by the
Administrative Agent and the applicable Issuing Lender, in their sole
discretion). The Administrative Agent and the applicable Issuing Lender shall
promptly notify the Borrower of the response to any request pursuant to this
Section.


 


(c)                                  At the Borrower’s
request, the Administrative Agent shall advise the Borrower of the outstanding
LOC Obligations as of the last Revaluation Date.


 


ARTICLE II


 


THE LOANS; AMOUNT AND TERMS


 


Section 2.1                                   Revolving
Loans and Incremental Revolving Loans.


 


(a)                                 Revolving
Commitment.  During the
Commitment Period, subject to the terms and conditions hereof, each Revolving
Lender severally, but not jointly, agrees to make revolving credit loans in
Dollars (“Revolving Loans”) to the Borrower from time to time in an
aggregate principal amount of up to TWO HUNDRED FIFTY MILLION
DOLLARS  ($250,000,000) (as
increased from time to time as provided in Section 2.1(f) and as such
aggregate maximum amount may be reduced from time to time as provided in Section 2.6,
the “Revolving Committed Amount”) for the purposes hereinafter set


 


34

















 


forth; provided, however, that (i) with regard to each Revolving Lender individually, the sum
of such Revolving Lender’s Commitment Percentage of the aggregate principal
amount of outstanding Revolving Loans plus such Revolving Lender’s
Commitment Percentage of outstanding Swingline Loans plus such Revolving
Lender’s Commitment Percentage of outstanding LOC Obligations shall not exceed
such Revolving Lender’s Revolving Commitment and (ii) with regard to the Revolving Lenders collectively, the sum
of the aggregate principal amount of outstanding Revolving Loans plus
outstanding Swingline Loans plus outstanding LOC Obligations shall not
exceed the Revolving Committed Amount then in effect.  Revolving Loans may consist of Alternate Base
Rate Loans or LIBOR Rate Loans, or a combination thereof, as the Borrower may
request, and may be repaid and reborrowed in accordance with the provisions
hereof; provided, however, the Revolving Loans made on the
Closing Date or any of the three (3) Business Days following the Closing
Date, may only consist of Alternate Base Rate Loans unless the Borrower
delivers a funding indemnity letter, substantially in the form of Exhibit 2.1(a),
reasonably acceptable to the Administrative Agent not less than three (3) Business
Days prior to the Closing Date.  LIBOR
Rate Loans shall be made by each Revolving Lender at its LIBOR Lending Office
and Alternate Base Rate Loans at its Domestic Lending Office.


 


(b)                                 Revolving Loan
Borrowings.


 


(i)                                     Notice of
Borrowing.  The
Borrower shall request a Revolving Loan borrowing by delivering a written
Notice of Borrowing (or telephone notice promptly confirmed in writing by
delivery of a written Notice of Borrowing, which delivery may be by fax) to the
Administrative Agent not later than 1:00 P.M. on the Business Day of the
requested borrowing in the case of Alternate Base Rate Loans, and on the third Business
Day prior to the date of the requested borrowing in the case of LIBOR Rate
Loans.  Each such Notice of Borrowing
shall be irrevocable and shall specify (A) that
a Revolving Loan is requested, (B) the
date of the requested borrowing (which shall be a Business Day), (C) the aggregate principal amount to be
borrowed and (D) whether the
borrowing shall be comprised of Alternate Base Rate Loans, LIBOR Rate Loans or
a combination thereof, and if LIBOR Rate Loans are requested, the Interest
Period(s) therefor.  If the Borrower
shall fail to specify in any such Notice of Borrowing (1) an applicable
Interest Period in the case of a LIBOR Rate Loan, then such notice shall be
deemed to be a request for an Interest Period of one month, or (2) the
Type of Revolving Loan requested, then such notice shall be deemed to be a
request for an Alternate Base Rate Loan hereunder.  The Administrative Agent shall give notice to
each Revolving Lender promptly upon receipt of each Notice of Borrowing, the
contents thereof and each such Revolving Lender’s share thereof.


 


(ii)                                  Minimum Amounts.  Each Revolving Loan that is made as an
Alternate Base Rate Loan shall be in a minimum aggregate amount of $500,000  and in integral multiples of $100,000 in excess thereof (or
the remaining amount of the Revolving Committed Amount, if less).  Each Revolving Loan that is made


 


35

















 


as a LIBOR Rate Loan shall be in a minimum aggregate amount of $500,000
and in integral multiples of $100,000 in excess thereof (or the remaining
amount of the Revolving Committed Amount, if less).


 


(iii)                               Advances.  Each Revolving Lender will make its
Commitment Percentage of each Revolving Loan borrowing available to the
Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 9.2, or at such other office as
the Administrative Agent may designate in writing, by 3:00 P.M. on the
date specified in the applicable Notice of Borrowing, in Dollars and in funds
immediately available to the Administrative Agent.  Such borrowing will then be made available to
the Borrower by the Administrative Agent by crediting the account of the
Borrower on the books of such office (or such other account that the Borrower
may designate in writing to the Administrative Agent) with the aggregate of the
amounts made available to the Administrative Agent by the Revolving Lenders and
in like funds as received by the Administrative Agent.


 


(c)                                  Repayment.  Subject to the terms of this Agreement,
Revolving Loans may be borrowed, repaid and reborrowed during the Commitment
Period.  The principal amount of all
Revolving Loans shall be due and payable in full on the Maturity Date, unless
accelerated sooner pursuant to Section 7.2.  The Borrower shall have the right to repay
Revolving Loans in whole or in part from time to time; provided, however;
that each partial repayment of a Revolving Loan shall be in a minimum principal
amount of $500,000 and integral multiples of $100,000 in excess thereof (or the
remaining outstanding principal amount).


 


(d)                                 Interest.  Subject to the provisions of Section 2.8,
Revolving Loans shall bear interest as follows:


 


(i)                                     Alternate Base
Rate Loans.  During such
periods as any Revolving Loans shall be comprised of Alternate Base Rate Loans,
each such Alternate Base Rate Loan shall bear interest at a per annum rate
equal to the sum of the Alternate Base Rate plus the Applicable
Percentage; and


 


(ii)                                  LIBOR Rate
Loans.  During such periods as
Revolving Loans shall be comprised of LIBOR Rate Loans, each such LIBOR Rate
Loan shall bear interest at a per annum rate equal to the sum of the LIBOR Rate
plus the Applicable Percentage.


 


Interest on Revolving Loans
shall be payable in arrears on each Interest Payment Date.


 


(e)                                  Revolving
Notes; Covenant to Pay.  The
Borrower’s obligation to pay each Revolving Lender shall be evidenced by this
Agreement and, upon such Revolving Lender’s request, by a duly executed
promissory note of the Borrower to such Revolving


 


36

















 


Lender in substantially the form of Exhibit 2.1(e).  The Borrower covenants and agrees to pay the
Revolving Loans in accordance with the terms of this Agreement.


 


(f)                                   Incremental
Revolving Loans.  Subject to
the terms and conditions set forth herein, the Borrower shall have the right,
at any time and from time to time after the Closing Date and prior to the
Maturity Date, to incur additional Indebtedness under this Credit Agreement in
the form of an increase to the Revolving Committed Amount (each an “Incremental
Revolving Facility”) by an aggregate amount of up to $100,000,000.  The following terms and conditions shall
apply to each Incremental Revolving Facility: 
(i) the loans made under any
such Incremental Revolving Facility (each an “Additional Revolving Loan”)
shall constitute Credit Party Obligations and will be secured and guaranteed
with the other Credit Party Obligations on a pari passu basis, (ii) any such Incremental Revolving
Facility shall be entitled to the same voting rights as the existing Revolving
Loans and shall be entitled to receive proceeds of prepayments on the same
basis as the existing Revolving Loans, (iii) any
such Incremental Revolving Facility shall be obtained from existing Lenders or
from other banks, financial institutions or investment funds; provided
that no existing Lender shall be required to participate in or fund any
Incremental Revolving Facility, (iv) any
such Incremental Revolving Facility shall be in a minimum principal amount of
$10,000,000 and integral multiples of $1,000,000 in excess thereof, (v) the proceeds of any Additional
Revolving Loan will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall execute a Revolving
Note in favor of any new Lender or any existing Lender requesting a Revolving
Note whose Revolving Committed Amount is increased, (vii) the conditions to Extensions of Credit in Section 4.2
shall have been satisfied, (viii) the
Administrative Agent shall have received an opinion or opinions (including, if
reasonably requested by the Administrative Agent, local counsel opinions) of
counsel for the Credit Parties, addressed to the Administrative Agent and the
Lenders, and such other documentation as the Administrative Agent deems
reasonably necessary to effectuate such increase, with all of the foregoing to
be in form and substance acceptable to the Administrative Agent, (ix) the Administrative Agent shall have
received from the Borrower updated financial projections and an officer’s
certificate, in each case in form and substance reasonably satisfactory to the
Administrative Agent, demonstrating that, after giving effect to any such
Incremental Revolving Facility on a Pro Forma Basis, the Borrower will be in
compliance with the financial covenants set forth in Section 5.9, (x) the outstanding Revolving Loans and
Participation Interests shall be reallocated by causing such fundings and
repayments (which shall not be subject to any processing and/or recordation
fees) among the Revolving Lenders (which the Borrower shall be responsible for
any costs arising under Section 2.15 resulting from such reallocation and
repayments) of Revolving Loans as necessary such that, after giving effect to
such Incremental Revolving Facility, each Revolving Lender will hold Revolving
Loans and Participation Interests based on its Commitment Percentage (after
giving effect to such Incremental Revolving Facility)  and
(xi) any Incremental Revolving
Facility shall also include a proportional increase in the LOC Committed
Amount.  The
Borrower may invite other banks, financial institutions and investment funds
reasonably acceptable to the Administrative Agent to join this Credit Agreement
as Lenders hereunder for the portion of such Incremental Revolving Facility not
taken by existing Lenders, provided that such other banks, financial 


 


37

















 


institutions
and investment funds shall enter into such joinder agreements to give effect
thereto as the Administrative Agent may reasonably request.  The Administrative Agent is authorized to
enter into, on behalf of the Lenders, any amendment to this Credit Agreement or
any other Credit Document as may be necessary to incorporate the terms of any
new Incremental Revolving Facility therein.


 


Section 2.2                                   Reserved.


 


Section 2.3                                   Letter
of Credit Subfacility.


 


(a)                                 Issuance.  Subject to the terms and conditions hereof
and of the LOC Documents, if any, and any other terms and conditions which the
Issuing Lender may reasonably require, during the Commitment Period the Issuing
Lender shall issue, and the Revolving Lenders shall participate in, standby
Letters of Credit for the account of the Borrower from time to time upon
request in a form acceptable to the Issuing Lender; provided, however,
that (i) the aggregate amount of LOC Obligations shall not at any time
exceed ONE HUNDRED FIFTY-FIVE MILLION DOLLARS
($155,000,000) (as increased from time to time as provided in Section 2.1(f) and  as such aggregate maximum amount may be reduced from time
to time as provided in Section 2.6, the “LOC Committed Amount”), (ii) the
sum of the aggregate principal amount of outstanding Revolving Loans plus
outstanding Swingline Loans plus outstanding LOC Obligations shall not
at any time exceed the Revolving Committed Amount then in effect, (iii) all
Letters of Credit shall be denominated in Dollars or, subject to Section 2.3(j),
in a Foreign Currency and (iv) Letters of Credit shall be issued for any
lawful corporate purposes and shall be issued as standby letters of credit,
including in connection with workers’ compensation and other insurance
programs.  Except as otherwise expressly
agreed upon by all the Revolving Lenders, no Letter of Credit shall have an
original expiry date more than eighteen (18) months from the date of issuance; provided,
however, so long as no Default or Event of Default has occurred and is
continuing and subject to the other terms and conditions to the issuance of
Letters of Credit hereunder, the expiry dates of Letters of Credit may be
extended annually or periodically from time to time on the request of the
Borrower or by operation of the terms of the applicable Letter of Credit to a
date not more than eighteen (18) months from the date of extension; provided,
further, that for any Letter of Credit with an expiry date extending
beyond the Maturity Date, the Borrower shall provide cash collateral for the
benefit of the applicable Issuing Lender on or prior to the date of issuance or
renewal in an amount as shall be agreed to by the Borrower and the Issuing Lender
and pursuant to documentation satisfactory to such Issuing Lender.  Each Letter of Credit shall comply with the
related LOC Documents.  The issuance and
expiry date of each Letter of Credit shall be a Business Day.  Each Letter of Credit issued hereunder shall
be in a minimum original face amount of $50,000 or such lesser amount as
approved by the Issuing Lender.   The Issuing Lender shall be under no
obligation to issue any Letter of Credit if any Lender is at such time a
Defaulting Lender and the reallocation described in Section 2.21(a)(iv) cannot
be completely effected, unless the Issuing Lender has entered into arrangements
satisfactory to the Issuing Lender with the Borrower or such Lender to
eliminate the Issuing Lender’s risk with respect to such Lender’s LOC
Obligations. The Borrower’s 


 


38

















 


Reimbursement Obligations in respect of each
Existing Letter of Credit, and each Revolving Lender’s participation obligations in
connection therewith, shall be governed by the terms of this Credit
Agreement.  The Existing Letters of
Credit shall, as of the Closing Date, be deemed to have been issued as Letters
of Credit hereunder and subject to and governed by the terms of this Agreement.


 


(b)                                 Notice and
Reports.  The request for the issuance
of a Letter of Credit shall be submitted to the Issuing Lender at least five (5) Business
Days prior to the requested date of issuance. 
The Issuing Lender will promptly upon request provide to the
Administrative Agent for dissemination to the Revolving Lenders a detailed
report specifying the Letters of Credit which are then issued and outstanding
and any activity with respect thereto which may have occurred since the date of
any prior report, and including therein, among other things, the account party,
the beneficiary, the face amount, expiry date as well as any payments or
expirations which may have occurred.  The
Issuing Lender will further provide to the Administrative Agent promptly upon
request copies of the Letters of Credit. 
The Issuing Lender will provide to the Administrative Agent promptly
upon request a summary report of the nature and extent of LOC Obligations then
outstanding.


 


(c)                                  Participations.  Each Revolving Lender, upon issuance of a
Letter of Credit, shall be deemed to have purchased without recourse a risk
participation from the Issuing Lender in such Letter of Credit and the
obligations arising thereunder and any Collateral relating thereto, in each
case in an amount equal to its Commitment Percentage of the obligations under
such Letter of Credit and shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and be obligated to pay to the
Issuing Lender therefor and discharge when due, its Commitment Percentage of the
obligations arising under such Letter of Credit; provided that any
Person that becomes a Revolving Lender after the Closing Date shall be deemed
to have purchased a Participation Interest in all outstanding Letters of Credit
on the date it becomes a Lender hereunder and any Letter of Credit issued on or
after such date, in each case in accordance with the foregoing terms.  Without limiting the scope and nature of each
Revolving Lender’s participation in any Letter of Credit, to the extent that
the Issuing Lender has not been reimbursed as required hereunder or under any
LOC Document, each such Revolving Lender shall pay to the Issuing Lender its
Commitment Percentage of such unreimbursed drawing in same day funds pursuant
to and in accordance with the provisions of subsection (d) hereof.  The obligation of each Revolving Lender to so
reimburse the Issuing Lender shall be absolute and unconditional and shall not
be affected by the occurrence of a Default, an Event of Default or any other
occurrence or event.  Any such
reimbursement shall not relieve or otherwise impair the obligation of the
Borrower to reimburse the Issuing Lender under any Letter of Credit, together
with interest as hereinafter provided.


 


(d)                                 Reimbursement.  In the event of any drawing under any Letter
of Credit, the Issuing Lender will promptly notify the Borrower and the
Administrative Agent.  The Borrower shall
reimburse the Issuing Lender on the day of drawing under any Letter of Credit
if notified prior to 11:00 A.M. on a Business Day or, if after 11:00 A.M.,
on the


 


39

















 


following Business Day (either with the proceeds of a Revolving Loan
obtained hereunder or otherwise) in same day funds as provided herein or in the
LOC Documents.  If the Borrower shall
fail to reimburse the Issuing Lender as provided herein, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to the ABR
Default Rate.  Unless the Borrower shall
immediately notify the Issuing Lender and the Administrative Agent of its
intent to otherwise reimburse the Issuing Lender, the Borrower shall be deemed
to have requested a Mandatory LOC Borrowing in the amount of the drawing as
provided in subsection (e) hereof, the proceeds of which will be used to
satisfy the Reimbursement Obligations. 
The Borrower’s Reimbursement Obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of set-off,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without limitation
any defense based on any failure of the Borrower to receive consideration or
the legality, validity, regularity or unenforceability of the Letter of
Credit.  The Issuing Lender will promptly
notify the other Revolving Lenders of the amount of any unreimbursed drawing
and each Revolving Lender shall promptly pay to the Administrative Agent for
the account of the Issuing Lender, in Dollars and in immediately available
funds, the amount of such Revolving Lender’s Commitment Percentage of such
unreimbursed drawing.  Such payment shall
be made on the day such notice is received by such Revolving Lender from the
Issuing Lender if such notice is received at or before 2:00 P.M.,
otherwise such payment shall be made at or before 12:00 P.M. on the
Business Day next succeeding the day such notice is received.  If such Revolving Lender does not pay such amount
to the Issuing Lender in full upon such request, such Revolving Lender shall,
on demand, pay to the Administrative Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of such
drawing until such Revolving Lender pays such amount to the Issuing Lender in
full at a rate per annum equal to, if paid within two (2) Business Days of
the date of drawing, the Federal Funds Effective Rate and thereafter at a rate
equal to the Alternate Base Rate.  Each
Revolving Lender’s obligation to make such payment to the Issuing Lender, and
the right of the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and without
regard to the termination of this Agreement or the Commitments hereunder, the
existence of a Default or Event of Default or the acceleration of the Credit
Party Obligations hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever.


 


(e)                                  Repayment with
Revolving Loans.  On any day
on which the Borrower shall have requested, or been deemed to have requested, a
Revolving Loan to reimburse a drawing under a Letter of Credit, the
Administrative Agent shall give notice to the Revolving Lenders that a Revolving
Loan has been requested or deemed requested in connection with a drawing under
a Letter of Credit, in which case a Revolving Loan borrowing comprised entirely
of Alternate Base Rate Loans (each such borrowing, a “Mandatory LOC
Borrowing”) shall be made (without giving effect to any termination of the
Commitments pursuant to Section 7.2) pro rata based on each Revolving
Lender’s respective Commitment Percentage (determined before giving effect to
any termination of the Commitments pursuant to Section 7.2) and the
proceeds thereof shall be paid


 


40
















 


directly to the Issuing Lender for application to the respective LOC
Obligations.  Each Revolving Lender
hereby irrevocably agrees to make such Revolving Loans on the day such notice
is received by the Revolving Lenders from the Administrative Agent if such
notice is received at or before 2:00 P.M., otherwise such payment shall be
made at or before 12:00 P.M. on the Business Day next succeeding the day
such notice is received, in each case notwithstanding (i) the amount of Mandatory LOC Borrowing
may not comply with the minimum amount for borrowings of Revolving Loans
otherwise required hereunder, (ii) whether
any conditions specified in Section 4.2 are then satisfied, (iii) whether a Default or an Event of
Default then exists, (iv) failure
for any such request or deemed request for Revolving Loan to be made by the
time otherwise required in Section 2.1(b), (v) the date of such Mandatory LOC Borrowing, or (vi) any reduction in the Revolving
Committed Amount after any such Letter of Credit may have been drawn upon.  In the event that any Mandatory LOC Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the occurrence of a Bankruptcy Event), then
each such Revolving Lender hereby agrees that it shall forthwith fund (as of
the date the Mandatory LOC Borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and
prior to such purchase) its Participation Interests in the outstanding LOC
Obligations; provided, further, that in the event any Revolving
Lender shall fail to fund its Participation Interest on the day the Mandatory
LOC Borrowing would otherwise have occurred, then the amount of such Revolving
Lender’s unfunded Participation Interest therein shall bear interest payable by
such Revolving Lender to the Issuing Lender upon demand, at the rate equal to,
if paid within two (2) Business Days of such date, the Federal Funds
Effective Rate, and thereafter at a rate equal to the Alternate Base Rate.


 


(f)                                   Modification,
Extension.  The
issuance of any supplement, modification, amendment, renewal, or extension to
any Letter of Credit shall, for purposes hereof, be treated in all respects the
same as the issuance of a new Letter of Credit hereunder.


 


(g)                                  ISP98.  Unless otherwise expressly agreed by the
Issuing Lender and the Borrower, when a Letter of Credit is issued, the rules of
the “International Standby Practices 1998,” published by the Institute of
International Banking Law & Practice (or such later version thereof as
may be in effect at the time of issuance) shall apply to each standby Letter of
Credit.


 


(h)                                 Conflict with
LOC Documents.  In the
event of any conflict between this Agreement and any LOC Document, this
Agreement shall control.


 


(i)                                     Designation of
Subsidiaries as Account Parties.  Notwithstanding anything to the contrary set
forth in this Agreement, including without limitation Section 2.3(a), a
Letter of Credit issued hereunder may contain a statement to the effect that
such Letter of Credit is issued for the account of a Subsidiary of the
Borrower; provided that, notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this Agreement for such
Letter of Credit and such statement shall not affect the Borrower’s
Reimbursement Obligations hereunder with respect to such Letter of Credit.


 


41

















 


(j)                                    The Borrower
may request, and any Issuing Lender may issue, Letters of Credit denominated in
any Foreign Currency (any such Letter of Credit, a “Foreign Currency Letter
of Credit”), subject to the following provisions:


 


(i)                                     all provisions
of Section 2.3 shall be satisfied with respect to such Foreign Currency
Letter of Credit;


 


(ii)                                  any drawing under
any Foreign Currency Letter of Credit shall be deemed to be a drawing under a
Letter of Credit hereunder in Dollars in an amount equal to the Dollar
Equivalent of such drawing, and such drawing shall be reimbursed or repaid with
Revolving Loans as provided in Sections 2.3(d) and (e) hereof as if
such drawing had been made in Dollars in an amount equal to the Dollar
Equivalent of such drawing;


 


(iii)                               [Reserved].


 


(iv)                              the obligation
of the Borrower to reimburse the Issuing Lender for each drawing under such
Foreign Currency Letter of Credit shall be absolute, unconditional and
irrevocable under all circumstances, including, without limitation, any adverse
change in the relevant exchange rates or in the availability of any such
Foreign Currency to the Borrower or any Subsidiary or in the relevant currency
markets generally; and


 


(v)                                 within five
days of demand therefor by the applicable Issuing Lender, the Borrower shall
reimburse such Issuing Lender for any Foreign Currency Letter of Credit, for
any costs, expenses, losses or liabilities (including foreign currency exchange
costs and losses) incurred by such Issuing Lender in connection with any
drawing under such Foreign Currency Letter of Credit and the reimbursement of
such drawing in Dollars rather than the applicable Foreign Currency, including,
without limitation, any costs, expenses, losses or liabilities resulting from
the determination of the Spot Rate two Business Days prior to the date a
drawing under such Foreign Currency Letter of Credit is reimbursed.


 


(k)                                 Issuing Lenders. Each Issuing Lender shall (i) prior to the issuance, renewal or
extension of any Letter of Credit, receive written confirmation from the
Administrative Agent that such issuance, renewal or extension meets the
requirements set forth in Section 2.3, (ii) provide
to the Administrative Agent, upon the issuance, renewal or extension of any
Letter of Credit and on a monthly basis, a report that details the activity
with respect to each Letter of Credit issued by such Issuing Lender (including
an indication of the maximum amount then in effect with respect to each such
Letter of Credit) and (iii) upon the
Administrative Agent’s request, any other documentation relating to any such
Letter of Credit (including, without limitation, copies of such Letters of
Credit).


 


42

















 


(l)                                     Cash Collateral.  At any point in time in which there is a
Defaulting Lender, the Issuing Lender may require the Borrower to Cash
Collateralize the LOC Obligations pursuant to Section 2.20.


 


Section 2.4                                   Swingline
Loan Subfacility.


 


(a)                                 Swingline
Commitment.  During the
Commitment Period, subject to the terms and conditions hereof (including those
set forth in Section 4.2), the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans to the Borrower (each a
“Swingline Loan” and, collectively, the “Swingline Loans”) for
the purposes hereinafter set forth; provided, however, (i) the
aggregate principal amount of Swingline Loans outstanding at any time shall not
exceed FIVE MILLION DOLLARS ($5,000,000) (the “Swingline
Committed Amount”), and (ii) the sum of the aggregate principal amount
of outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed the Revolving Committed Amount
then in effect.  Swingline Loans
hereunder may be repaid and reborrowed in accordance with the provisions
hereof.


 


(b)                                 Swingline Loan
Borrowings.


 


(i)                                     Notice of
Borrowing and Disbursement.  Upon receiving a Notice of Borrowing from the
Borrower not later than 1:00 P.M. on any Business Day requesting that a
Swingline Loan be made, the Swingline Lender will make Swingline Loans
available to the Borrower on the same Business Day such request is received by
the Administrative Agent.  Swingline Loan
borrowings hereunder shall be made in minimum amounts of $100,000 (or the
remaining available amount of the Swingline Committed Amount if less) and in
integral amounts of $100,000 in excess thereof. 
Notwithstanding anything to the contrary contained herein, the Swingline
Lender shall not at any time be obligated to make any Swingline Loan hereunder
if any Lender is at such time a Defaulting Lender, unless the Swingline Lender
has entered into arrangements satisfactory to the Swingline Lender with the
Borrower or such Lender to eliminate the Swingline Lender’s risk with respect
to such Lender’s obligations in respect of its Swingline Commitment.


 


(ii)                                  Repayment of
Swingline Loans.  Each
Swingline Loan borrowing shall be due and payable on the Maturity Date.  The Swingline Lender may, at any time, in its
sole discretion, by written notice to the Borrower and the Administrative
Agent, demand repayment of its Swingline Loans by way of a Revolving Loan
borrowing, in which case the Borrower shall be deemed to have requested a
Revolving Loan borrowing comprised entirely of Alternate Base Rate Loans in the
amount of such Swingline Loans; provided, however, that, in the
following circumstances, any such demand shall also be deemed to have been
given one Business Day prior to each of (A) the Maturity Date, (B) the
occurrence of any Bankruptcy Event, (C) upon acceleration of the Credit
Party Obligations 


 


43

















 


hereunder,
whether on account of a Bankruptcy Event or any other Event of Default, and (D) the
exercise of remedies in accordance with the provisions of Section 7.2
hereof (each such Revolving Loan borrowing made on account of any such deemed
request therefor as provided herein being hereinafter referred to as “Mandatory
Swingline Borrowing”).  Each
Revolving Lender hereby irrevocably agrees to make such Revolving Loans
promptly upon any such request or deemed request on account of each Mandatory
Swingline Borrowing in the amount and in the manner specified in the preceding
sentence on the date such notice is received by the Revolving Lenders from the
Administrative Agent if such notice is received at or before 2:00 P.M.,
otherwise such payment shall be made at or before 12:00 P.M. on the
Business Day next succeeding the date such notice is received notwithstanding
(1) the amount of Mandatory Swingline Borrowing may not comply with the
minimum amount for borrowings of Revolving Loans otherwise required hereunder, (2) whether
any conditions specified in Section 4.2 are then satisfied, (3) whether
a Default or an Event of Default then exists, (4) failure of any such
request or deemed request for Revolving Loans to be made by the time otherwise
required in Section 2.1(b)(i), (5) the date of such Mandatory
Swingline Borrowing, or (6) any reduction in the Revolving Committed
Amount or termination of the Revolving Commitments immediately prior to such
Mandatory Swingline Borrowing or contemporaneously therewith.  In the event that any Mandatory Swingline Borrowing
cannot for any reason be made on the date otherwise required above (including,
without limitation, as a result of the commencement of a proceeding under the
Bankruptcy Code), then each Revolving Lender hereby agrees that it shall
forthwith purchase (as of the date the Mandatory Swingline Borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Swingline
Lender such Participation Interest in the outstanding Swingline Loans as shall
be necessary to cause each such Revolving Lender to share in such Swingline
Loans ratably based upon its respective Commitment Percentage (determined
before giving effect to any termination of the Commitments pursuant to Section 7.2);
provided that (x) all interest payable on the Swingline Loans shall
be for the account of the Swingline Lender until the date as of which the
respective Participation Interest is purchased, and (y) at the time any
purchase of a Participation Interest pursuant to this sentence is actually
made, the purchasing Revolving Lender shall be required to pay to the Swingline
Lender interest on the principal amount of such Participation Interest
purchased for each day from and including the day upon which the Mandatory
Swingline Borrowing would otherwise have occurred to but excluding the date of
payment for such Participation Interest, at the rate equal to, if paid within
two (2) Business Days of the date of the Mandatory Swingline Borrowing,
the Federal Funds Effective Rate, and thereafter at a rate equal to the
Alternate Base Rate.  The Borrower shall
have the right to repay the Swingline Loan in whole or in part from time to
time; provided, however; that each partial repayment of a
Swingline Loan shall be in a minimum principal amount of $100,000 and integral
multiples of $100,000 in excess thereof (or the remaining outstanding principal
amount).


 


44

















 


(c)                                  Interest on
Swingline Loans.  Subject to
the provisions of Section 2.8, Swingline Loans shall bear interest at a
per annum rate equal to the Alternate Base Rate plus the Applicable
Percentage for Revolving Loans that are Alternate Base Rate Loans.  Interest on Swingline Loans shall be payable
in arrears on each Interest Payment Date.


 


(d)                                 Swingline Note;
Covenant to Pay.  The
Swingline Loans shall be evidenced by this Agreement and, upon request of the
Swingline Lender, by a duly executed promissory note of the Borrower in favor
of the Swingline Lender in the original amount of the Swingline Committed
Amount and substantially in the form of Exhibit 2.4(d).  The Borrower covenants and agrees to pay the
Swingline Loans in accordance with the terms of this Agreement.


 


(e)                                  Cash Collateral.  At any point in time in which there is a
Defaulting Lender, the Swingline Lender may require the Borrower to Cash
Collateralize the outstanding Swingline Loans pursuant to Section 2.20.


 


Section 2.5                                   Fees.


 


(a)                                 Commitment Fee.  In consideration of the Revolving
Commitments, the Borrower agrees to pay to the Administrative Agent, for the
ratable benefit of the Revolving Lenders, a commitment fee (the “Commitment
Fee”) in an amount equal to the Applicable Percentage per annum on the
average daily unused amount of the Revolving Committed Amount.  For purposes of computation of the Commitment
Fee, LOC Obligations shall be considered usage of the Revolving Committed
Amount but Swingline Loans shall not be considered usage of the Revolving
Committed Amount.  The Commitment Fee
shall be payable quarterly in arrears on the last Business Day of each calendar
quarter.


 


(b)                                 Letter of
Credit Fees.  In
consideration of the LOC Commitments, the Borrower agrees to pay to the
Administrative Agent, for the ratable benefit of the Revolving Lenders, a fee
(the “Letter of Credit Fee”) equal to the Applicable Percentage for
Revolving Loans that are LIBOR Rate Loans per annum on the average daily
maximum amount available to be drawn under each Letter of Credit from the date
of issuance to the date of expiration. 
The Letter of Credit Fee shall each be payable quarterly in arrears on
the last Business Day of each calendar quarter.


 


(c)                                  Issuing Lender
Fees.  In addition to the Letter of
Credit Fees payable pursuant to subsection (b) hereof, the Borrower shall
pay to the Issuing Lender for its own account without sharing by the other
Lenders the reasonable and customary charges from time to time of the Issuing
Lender with respect to the amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit (collectively,
the “Issuing Lender Fees”).  The
Issuing Lender may charge, and retain for its own account without sharing by
the other Lenders, an additional facing fee (the “Letter of Credit Facing
Fee”) of 0.125% per annum on the average daily maximum amount available to
be drawn under each such Letter of Credit issued by it.  The Issuing


 


45

















 


Lender Fees and the Letter of Credit Facing Fee shall be payable
quarterly in arrears on the last Business Day of each calendar quarter.


 


(d)                                 Administrative
Fee.  The Borrower agrees to pay to
the Administrative Agent the annual administrative fee as described in the Fee
Letter.


 


Section 2.6                                   Commitment
Reductions.


 


(a)                                 Voluntary Reductions.  The Borrower shall have the right to
terminate or permanently reduce the unused portion of the Revolving Committed
Amount at any time or from time to time upon not less than five (5) Business
Days’ prior written notice to the Administrative Agent (which shall notify the
Lenders thereof as soon as practicable) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any
such reduction which shall be in a minimum amount of $1,000,000 or a whole multiple
of $1,000,000  in excess thereof and shall be
irrevocable and effective upon receipt by the Administrative Agent; provided
that no such reduction or termination shall be permitted if after giving effect
thereto, and to any prepayments of the Revolving Loans made on the effective
date thereof, the sum of the aggregate principal amount of outstanding
Revolving Loans plus outstanding Swingline Loans plus outstanding
LOC Obligations would exceed the Revolving Committed Amount then in effect.


 


(b)                                 Swingline
Committed Amount.  If the
Revolving Committed Amount is reduced below the then current Swingline
Committed Amount, the Swingline Committed Amount shall automatically be reduced
by an amount such that the Swingline Committed Amount equals the Revolving Committed
Amount.


 


(c)                                  Maturity Date.  The Revolving Commitments, the Swingline
Commitment and the LOC Commitment shall automatically terminate on the Maturity
Date.


 


Section 2.7                                   Prepayments.


 


(a)                                 Optional
Repayments.  The
Borrower shall have the right to repay Loans in whole or in part from time to
time. The Borrower shall give three Business Days’ irrevocable notice of
repayment in the case of LIBOR Rate Loans and same-day irrevocable notice on
any Business Day in the case of Alternate Base Rate Loans, to the
Administrative Agent (which shall notify the Lenders thereof as soon as
practicable).  Within the foregoing
parameters, repayments under this Section shall be applied first to
Alternate Base Rate Loans and then to LIBOR Rate Loans in direct order of Interest
Period maturities.  All repayments under
this Section shall be subject to Section 2.15, but otherwise without
premium or penalty.  Interest on the
principal amount prepaid shall be payable on the next occurring Interest
Payment Date that would have occurred had such loan not been prepaid or, at the
request of the Administrative Agent, interest on the principal amount prepaid
shall be payable on any date that a repayment is made hereunder through the
date of repayment.


 


46

















 


(b)                                 Mandatory
Prepayments.  If at any
time after the Closing Date, (y) the sum of the aggregate principal amount
of outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall exceed the Revolving Committed Amount, the
Borrower shall immediately prepay the Revolving Loans and Swingline Loans
(first to outstanding Swingline Loans and second to outstanding Revolving
Loans) and (after all Revolving Loans and Swingline Loans have been repaid)
cash collateralize the LOC Obligations in an amount sufficient to eliminate
such excess.


 


(c)                                  Hedging
Obligations Unaffected.  Any
repayment or prepayment made pursuant to this Section shall not affect the
Borrower’s obligation to continue to make payments under any Secured Hedging
Agreement, which shall remain in full force and effect notwithstanding such
repayment or prepayment, subject to the terms of such Secured Hedging
Agreement.


 


Section 2.8                                   Default
Rate and Payment Dates.


 


(a)                                 If all or a
portion of the principal amount of any Loan which is a LIBOR Rate Loan shall
not be paid when due or continued as a LIBOR Rate Loan in accordance with the
provisions of Section 2.9 (whether at the stated maturity, by acceleration
or otherwise), such overdue principal amount of such Loan shall be converted to
an Alternate Base Rate Loan at the end of the Interest Period applicable
thereto.


 


(b)                                 (i) If all
or a portion of the principal amount of any LIBOR Rate Loan shall not be paid
when due, such overdue amount shall bear interest at a rate per annum which is
equal to the rate that would otherwise be applicable thereto plus 2%,
until the end of the Interest Period applicable thereto, and thereafter at a
rate per annum which is equal to the Alternate Base Rate plus the sum of
the Applicable Percentage then in effect for Alternate Base Rate Loans and 2%
(the “ABR Default Rate”) or (ii) if any interest payable on the
principal amount of any Loan or any fee or other amount, including the
principal amount of any Alternate Base Rate Loan, payable hereunder shall not
be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum which
is equal to the ABR Default Rate, in each case from the date of such non-payment
until such amount is paid in full (after as well as before judgment).  Upon the occurrence, and during the
continuance, of any other Event of Default hereunder, at the option of the
Required Lenders, the principal of and, to the extent permitted by law,
interest on the Loans and any other amounts owing hereunder or under the other
Credit Documents shall bear interest, payable on demand, at a per annum rate
which is (A) in the case of principal, the rate that would otherwise be
applicable thereto plus 2% or (B) in the case of interest, fees or
other amounts, the ABR Default Rate (after as well as before judgment).


 


(c)                                  Interest on
each Loan shall be payable in arrears on each Interest Payment Date; provided
that interest accruing pursuant to paragraph (b) of this Section shall
be payable from time to time on demand.


 


47

















 


Section 2.9                                   Conversion
Options.


 


(a)                                 The Borrower
may, in the case of Revolving Loans, elect from time to time to convert
Alternate Base Rate Loans to LIBOR Rate Loans, by delivering a Notice of
Conversion/Extension to the Administrative Agent at least three Business Days
prior to the proposed date of conversion. 
In addition, the Borrower may elect from time to time to convert all or
any portion of a LIBOR Rate Loan to an Alternate Base Rate Loan by giving the
Administrative Agent irrevocable written notice thereof by 1:00 P.M. one (1) Business
Day prior to the proposed date of conversion. 
If the date upon which an Alternate Base Rate Loan is to be converted to
a LIBOR Rate Loan is not a Business Day, then such conversion shall be made on
the next succeeding Business Day and during the period from such last day of an
Interest Period to such succeeding Business Day such Loan shall bear interest
as if it were an Alternate Base Rate Loan. 
LIBOR Rate Loans may only be converted to Alternate Base Rate Loans on
the last day of the applicable Interest Period. 
If the date upon which a LIBOR Rate Loan is to be converted to an
Alternate Base Rate Loan is not a Business Day, then such conversion shall be
made on the next succeeding Business Day and during the period from such last
day of an Interest Period to such succeeding Business Day such Loan shall bear
interest as if it were an Alternate Base Rate Loan.  All or any part of outstanding Alternate Base
Rate Loans may be converted as provided herein; provided that
(i) no Loan may be converted into a LIBOR Rate Loan when any Default or
Event of Default has occurred and is continuing and (ii) partial conversions
shall be in an aggregate principal amount of $500,000 or a whole multiple of
$100,000 in excess thereof.  All or any
part of outstanding LIBOR Rate Loans may be converted as provided herein; provided
that partial conversions shall be in an aggregate principal amount of $500,000
or a whole multiple of $100,000 in excess thereof.


 


(b)                                 Any LIBOR Rate
Loans may be continued as such upon the expiration of an Interest Period with
respect thereto by compliance by the Borrower with the notice provisions contained
in Section 2.9(a); provided, that no LIBOR Rate Loan may be
continued as such when any Default or Event of Default has occurred and is
continuing, in which case such Loan shall be automatically converted to an
Alternate Base Rate Loan at the end of the applicable Interest Period with
respect thereto.  If the Borrower shall
fail to give timely notice of an election to continue a LIBOR Rate Loan, or the
continuation of LIBOR Rate Loans is not permitted hereunder, such LIBOR Rate
Loans shall be automatically converted to Alternate Base Rate Loans at the end
of the applicable Interest Period with respect thereto.


 


Section 2.10                            Computation
of Interest and Fees; Usury.


 


(a)                                 Interest
payable hereunder with respect to any Alternate Base Rate Loan based on the
Prime Rate shall be calculated on the basis of a year of 365 days (or 366 days,
as applicable) for the actual days elapsed. 
All other fees, interest and all other amounts payable hereunder shall
be calculated on the basis of a 360-day year for the actual days elapsed.  The Administrative Agent shall as soon as
practicable notify the Borrower and the Lenders of each determination of a
LIBOR Rate on the Business Day


 


48

















 


of the determination thereof. 
Any change in the interest rate on a Loan resulting from a change in the
Alternate Base Rate shall become effective as of the opening of business on the
day on which such change in the Alternate Base Rate shall become
effective.  The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change.


 


(b)                                 Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. 
The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the computations used by the Administrative
Agent in determining any interest rate.


 


(c)                                  It is the
intent of the Lenders and the Credit Parties to conform to and contract in
strict compliance with applicable usury law from time to time in effect.  All agreements between the Lenders and the
Credit Parties are hereby limited by the provisions of this subsection which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. 
In no way, nor in any event or contingency (including but not limited to
prepayment or acceleration of the maturity of any Credit Party Obligation),
shall the interest taken, reserved, contracted for, charged, or received under
this Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. 
If, from any possible construction of any of the Credit Documents or any
other document, interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the provisions of
this paragraph and such interest shall be automatically reduced to the maximum
nonusurious amount permitted under applicable law, without the necessity of
execution of any amendment or new document. 
If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which would,
apart from this provision, be in excess of the maximum nonusurious amount, an
amount equal to the amount which would have been excessive interest shall,
without penalty, be applied to the reduction of the principal amount owing on
the Loans and not to the payment of interest, or refunded to the Borrower or
the other payor thereof if and to the extent such amount which would have been
excessive exceeds such unpaid principal amount of the Loans.  The right to demand payment of the Loans or
any other Indebtedness evidenced by any of the Credit Documents does not
include the right to receive any interest which has not otherwise accrued on
the date of such demand, and the Lenders do not intend to charge or receive any
unearned interest in the event of such demand. 
All interest paid or agreed to be paid to the Lenders with respect to
the Loans shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term (including any
renewal or extension) of the Loans so that the amount of interest on account of
such Indebtedness does not exceed the maximum nonusurious amount permitted by
applicable law.


 


49

















 


Section 2.11                            Pro
Rata Treatment and Payments.


 


(a)                                 Allocation of
Payments Prior to Exercise of Remedies.  Each borrowing of Revolving Loans and any
reduction of the Revolving Commitments shall be made pro rata according to the
respective Commitment Percentages of the Revolving Lenders.  Unless otherwise required by the terms of
this Agreement, each payment under this Agreement or any Note shall be applied,
first, to any fees then due and owing by the Borrower pursuant to Section 2.5,
second, to interest then due and owing hereunder and under the Notes of
the Borrower and, third, to principal then due and owing hereunder and
under the Notes of the Borrower.  Each
payment on account of any fees pursuant to Section 2.5 shall be made pro
rata in accordance with the respective amounts due and owing (except as to the
Letter of Credit Facing Fees and the Issuing Lender Fees).  Each optional repayment by the Borrower on
account of principal of and interest on the Revolving Loans shall be applied to
such Loans on a pro rata basis and to the extent applicable in accordance with
the terms of Section 2.7(a) hereof. 
Each mandatory prepayment on account of principal of the Loans shall be
applied to such Loans on a pro rata basis and to the extent applicable in
accordance with Section 2.7(b).  All
payments (including prepayments) to be made by the Borrower on account of
principal, interest and fees shall be made without defense, set-off or
counterclaim and shall be made to the Administrative Agent for the account of
the Lenders at the Administrative Agent’s office specified on Section 9.2
in Dollars and in immediately available funds not later than 3:00 P.M. on
the date when due.  The Administrative
Agent shall distribute such payments to the Lenders entitled thereto promptly
upon receipt in like funds as received. 
If any payment hereunder (other than payments on the LIBOR Rate Loans)
becomes due and payable on a day other than a Business Day, such payment shall
be extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable at the then applicable rate
during such extension.  If any payment on
a LIBOR Rate Loan becomes due and payable on a day other than a Business Day,
such payment date shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.


 


(b)                                 Allocation of
Payments After Exercise of Remedies.  Notwithstanding any other provisions of this
Agreement to the contrary, after the exercise of remedies (other than the
invocation of default interest pursuant to Section 2.8) by the
Administrative Agent or the Lenders pursuant to Section 7.2 (or after the Commitments
shall automatically terminate and the Loans (with accrued interest thereon) and
all other amounts under the Credit Documents (including without limitation the
maximum amount of all contingent liabilities under Letters of Credit) shall
automatically become due and payable in accordance with the terms of such
Section), all amounts collected or received by the Administrative Agent or any
Lender on account of the Credit Party Obligations or any other amounts
outstanding under any of the Credit Documents or in respect of the Collateral
shall be paid over or delivered as follows (irrespective of whether the
following costs, expenses, fees, interest, premiums, scheduled periodic
payments or Credit Party Obligations are allowed, permitted or recognized as a
claim in any proceeding resulting from the occurrence of a Bankruptcy Event):


 


50
















 


FIRST, to the payment of all
reasonable out-of-pocket costs and expenses (including without limitation
reasonable attorneys’ fees) of the Administrative Agent in connection with
enforcing the rights of the Lenders under the Credit Documents and any protective
advances made by the Administrative Agent with respect to the Collateral under
or pursuant to the terms of the Security Documents;


 


SECOND, to the payment of
any fees owed to the Administrative Agent and the Issuing Lender


 


THIRD, to the payment of all
reasonable out-of-pocket costs and expenses (including without limitation,
reasonable attorneys’ fees) of each of the Lenders in connection with enforcing
its rights under the Credit Documents; provided all Lenders shall be
represented by a single counsel (unless any such Lender, in good faith, shall
reasonably determine that there is a conflict of interest that causes it to be
necessary for such Lender to be represented by separate counsel), or otherwise
with respect to the Credit Party Obligations owing to such Lender;


 


FOURTH, to the payment of
all of the Credit Party Obligations consisting of accrued fees and interest,
and including, with respect to any Secured Hedging Agreement, any fees,
premiums and scheduled periodic payments due under such Secured Hedging
Agreement and any interest accrued thereon;


 


FIFTH, to the payment of the
outstanding principal amount of the Credit Party Obligations and the payment or
cash collateralization of the outstanding LOC Obligations, and including with
respect to any Secured Hedging Agreement, any breakage, termination or other
payments due under such Secured Hedging Agreement and any interest accrued
thereon;


 


SIXTH, to all other Credit
Party Obligations and other obligations which shall have become due and payable
under the Credit Documents or otherwise and not repaid pursuant to clauses “FIRST”
through “FIFTH” above; and


 


SEVENTH, to the payment of
the surplus, if any, to whoever may be lawfully entitled to receive such
surplus.


 


In carrying out the
foregoing, (a) amounts received shall be applied in the numerical order
provided until exhausted prior to application to the next succeeding category;
(b) each of the Lenders and any Hedging Agreement Provider shall receive
an amount equal to its pro rata share (based on the proportion that the then
outstanding Loans and LOC Obligations held by such Lender or the outstanding
obligations payable to such Hedging Agreement Provider bears to the aggregate
then outstanding Loans and LOC Obligations and obligations payable under all
Secured Hedging Agreements) of amounts available to be applied pursuant to
clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (c) to the
extent that any amounts available for distribution pursuant


 


51

















 


to clause “FIFTH” above are attributable to the issued but undrawn
amount of outstanding Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (i) first,
to reimburse the Issuing Lender from time to time for any drawings under such
Letters of Credit and (ii) then, following the expiration of all Letters
of Credit, to all other obligations of the types described in clauses “FIFTH”
and “SIXTH” above in the manner provided in this Section.  Notwithstanding the foregoing terms of this
Section, only Collateral proceeds and payments under the Guaranty (as opposed
to ordinary course principal, interest and fee payments hereunder) shall be
applied to obligations under any Secured Hedging Agreement.


 


Section 2.12         Non-Receipt
of Funds by the Administrative Agent.


 


(a)           Funding by
Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received written notice from a Lender prior to the proposed date of any
Extension of Credit that such Lender will not make available to the
Administrative Agent such Lender’s share of such Extension of Credit, the
Administrative Agent may assume that such Lender has made such share available
on such date in accordance with this Agreement 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 Extension of Credit available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (ii) in the case of a payment to be made by the
Borrower, the interest rate applicable to Alternate Base Rate Loans.  If the Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable Extension of Credit to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Loan included in such Extension of
Credit.  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.


 


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


 


52

















 


Lender,
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 Issuing
Lender, with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.


 


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


 


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


 


(d)           Obligations of
Lenders Several.  The
obligations of the Lenders hereunder to make Revolving Loans, to fund
participations in Letters of Credit and Swingline Loans and to make payments
pursuant to Section 9.5(c) are several and not joint.  The failure of any Lender to make any Loan,
to fund any such participation or to make any such payment under Section 9.5(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 9.5(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.


 


Section 2.13         Inability
to Determine Interest Rate.


 


Notwithstanding any other provision of this Agreement, if (a) the
Administrative Agent shall reasonably determine (which determination shall be
conclusive and binding absent manifest error) that, by reason of circumstances
affecting the relevant market, reasonable and adequate means do not exist for
ascertaining the LIBOR Rate for such Interest Period, or (b) the Required
Lenders shall reasonably determine (which determination shall be conclusive and
binding absent manifest error) that the LIBOR Rate does not adequately and
fairly reflect the cost to such Lenders of funding LIBOR Rate Loans that the
Borrower has requested be outstanding as a LIBOR Tranche during such Interest
Period, the Administrative Agent shall forthwith give telephone notice of such
determination, confirmed in writing, to the Borrower, and the Lenders at least
two (2) Business Days prior to the first day of such Interest Period.  Unless the Borrower shall have notified the
Administrative Agent upon receipt of such telephone notice that it wishes


 


53

















 


to rescind or modify its request regarding such LIBOR Rate Loans, any
Loans that were requested to be made as LIBOR Rate Loans shall be made as
Alternate Base Rate Loans and any Loans that were requested to be converted
into or continued as LIBOR Rate Loans shall remain as or be converted into Alternate
Base Rate Loans.  Until any such notice
has been withdrawn by the Administrative Agent, no further Loans shall be made
as, continued as, or converted into, LIBOR Rate Loans for the Interest Periods
so affected.


 


Section 2.14         Yield
Protection.


 


(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 reflected in the LIBOR Rate) or the Issuing Lender;


 


(ii)           subject any Lender or the
Issuing Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any participation in a Letter of Credit or any
LIBOR Rate Loan made by it, or change the basis of taxation of payments to such
Lender or the Issuing Lender in respect thereof (except for Indemnified Taxes
or Other Taxes covered by Section 2.16 and the imposition of, or any
change in the rate of, any Excluded Tax payable by such Lender or the Issuing
Lender); or


 


(iii)          impose on any Lender or the
Issuing Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or LIBOR 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 LIBOR Rate Loan (or, in the case of clause (ii),
any Loan or any participation in any Loan) or of maintaining its obligation to
make any such Loan), or to increase the cost to such Lender or the Issuing
Lender 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
Administrative Agent, Lender, the Issuing Lender or other recipient hereunder
(whether of principal, interest or any other amount) then, upon request of such
Administrative Agent, Lender, the Issuing Lender, or other recipient, the
Borrower will pay to such Administrative Agent, Lender, the Issuing Lender or
other recipient, as the case may be, such additional amount or amounts as will
compensate such Administrative Agent, Lender, Issuing Lender or other
recipient, as the case may be, for such additional costs incurred or reduction
suffered.


 


(b)           Capital Requirements.  If any Lender or the Issuing Lender
determines that any Change in Law affecting such Lender or the Issuing Lender
or any lending office 


 


54

















 


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


 


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


 


(d)           Delay in Requests.  Failure or delay on the part of any Lender or
the Issuing Lender to demand compensation pursuant to this Section shall
not constitute a waiver of such Lender’s or the Issuing Lender’s right to
demand such compensation, provided that the Borrower shall not be
required to compensate a Lender or the Issuing Lender pursuant to this Section for
any increased costs incurred or reductions suffered, as the case may be, to the
extent that such Lender or the Issuing Lender fails to make a demand for such
compensation more than six (6) months after becoming aware of such Change
in Law giving rise to such increased costs or reductions.


 


Section 2.15         Compensation for Losses; Eurocurrency Liabilities.


 


(a) Compensation
for Losses.  Upon demand of
any Lender (with a copy to the Administrative Agent), which demand must made
within 60 days from the date upon which the Lender becomes aware of the event
that is the basis for the demand, 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:


 


(i)            any continuation,
conversion, payment or prepayment of any Loan other than an Alternate 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);


 


(ii)           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 


 


55

















 


other
than an Alternate Base Rate Loan on the date or in the amount notified by the
Borrower; or


 


(iii)          any assignment of a LIBOR
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 2.19;


 


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, each Lender shall be deemed to have funded each LIBOR Rate Loan
made by it at the LIBOR Rate for such Loan by a matching deposit or other
borrowing in the London interbank eurodollar market for a comparable amount and
for a comparable period, whether or not such LIBOR Rate Loan was in fact so
funded.


 


(b)           The Borrower shall pay to each Lender, as long as
such Lender shall be required to maintain reserves under Regulation D with
respect to “Eurocurrency liabilities” within the meaning of Regulation D, or
under any similar or successor regulation with respect to Eurocurrency
liabilities or Eurocurrency funding, additional interest on the unpaid
principal amount of each LIBOR Loan equal to the actual costs of such reserves
allocated to such LIBOR 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 LIBOR Loan, provided
the Borrower shall have received at least fifteen (15) days prior notice (with
a copy to the Administrative Agent) of such additional interest from such
Lender.  If a Lender fails to give notice
fifteen (15) days prior to the relevant interest payment date, such additional
interest shall be due and payable fifteen (15) days from receipt of such
notice.


 


Section 2.16         Taxes.


 


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


 


56

















 


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


 


(c)           Indemnification by the Borrower.  The Borrower shall indemnify the
Administrative Agent, each Lender and the Issuing Lender, within ten (10) days
after demand therefor, which demand must be made within 60 days from the date
upon which the Lender becomes aware of the event that is the basis for the
demand, 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) paid by the Administrative Agent, such
Lender or the Issuing Lender, as the case may be, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing
Lender (with a copy to the Administrative Agent), or by the Administrative
Agent on its own behalf or on behalf of a Lender or the Issuing Lender, shall
be conclusive absent manifest error.


 


(d)           [Reserved.]


 


(e)           Status of Lenders.  Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any treaty
to which such jurisdiction is a party, with respect to payments hereunder or
under any other Credit Document shall deliver to the Borrower (with a copy to
the Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent, such properly
completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding.  In addition, any Lender, if
requested by the Borrower or the Administrative Agent, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the
Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to
backup withholding or information reporting requirements.


 


(f)            Foreign Lenders.  Without limiting the
generality of the foregoing, in the event that the Borrower is resident for tax
purposes in the United States of America, any Foreign Lender shall deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:


 


57

















 


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


 


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


 


(iii)          in the case of a Foreign
Lender claiming the benefits of the exemption for portfolio interest under
section 881(c) of the Code, (i) 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 (ii) duly completed copies
of  Internal Revenue Service Form W-8BEN,
or


 


(iii)          any other form prescribed by
applicable law as a basis for claiming exemption from or a reduction in United
States Federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable law to permit the Borrower to
determine the withholding or deduction required to be made.


 


(g)           Treatment of Certain Refunds.  If the Administrative Agent, a Lender or the
Issuing Lender determines, in its sole discretion, that it has received a
refund of any Taxes or Other Taxes as to which it has been indemnified by the
Borrower or with respect to which the Borrower has paid additional amounts
pursuant to this Section, 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
of the Administrative Agent directly incurred in connection with payment of the
refund to the Borrower, such Lender or the Issuing Lender, 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 Issuing Lender,
agrees to repay the amount paid over to the Borrower (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to
the Administrative Agent, such Lender or the Issuing Lender in the event the
Administrative Agent, such Lender or the Issuing Lender is required to repay
such refund to such Governmental Authority. 
This paragraph shall not be construed to require the Administrative
Agent, any Lender or the Issuing Lender 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.


 


Section 2.17         Indemnification;
Nature of Issuing Lender’s Duties.


 


(a)           In addition to
its other obligations under Section 2.3, the Credit Parties hereby agree
to protect, indemnify, pay and save the Issuing Lender and each Lender harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys’ fees) that the
Issuing Lender or


 


58

















 


such Lender may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit or (ii) the
failure of the Issuing Lender to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority (all such acts
or omissions, herein called “Government Acts”).


 


(b)           As between the Credit Parties, the Issuing Lender
and each Lender, the Credit Parties shall assume all risks of the acts,
omissions or misuse of any Letter of Credit by the beneficiary thereof.  Neither the Issuing Lender nor any Lender
shall be responsible: (i) for the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of any Letter of Credit, even
if it should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged; (ii) for the validity or sufficiency of
any instrument transferring or assigning or purporting to transfer or assign
any Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, that may prove to be invalid or ineffective for any
reason; (iii) for failure of the beneficiary of a Letter of Credit to
comply fully with conditions required in order to draw upon a Letter of Credit;
(iv) for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) for errors in interpretation of
technical terms; (vi) for any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under a Letter of
Credit or of the proceeds thereof; and (vii) for any consequences arising
from causes beyond the control of the Issuing Lender or any Lender, including,
without limitation, any Government Acts. 
None of the above shall affect, impair, or prevent the vesting of the
Issuing Lender’s rights or powers hereunder.


 


(c)           In furtherance
and extension and not in limitation of the specific provisions hereinabove set
forth, any action taken or omitted by the Issuing Lender or any Lender, under
or in connection with any Letter of Credit or the related certificates, if
taken or omitted in the absence of gross negligence or willful misconduct,
shall not put such Issuing Lender or such Lender under any resulting liability
to the Credit Parties.  It is the
intention of the parties that this Agreement shall be construed and applied to
protect and indemnify the Issuing Lender and each Lender against any and all
risks involved in the issuance of the Letters of Credit, all of which risks are
hereby assumed by the Credit Parties, including, without limitation, any and
all risks of the acts or omissions, whether rightful or wrongful, of any
Government Authority.  The Issuing
Lender  and the Lenders shall not, in any
way, be liable for any failure by the Issuing Lender or anyone else to pay any
drawing under any Letter of Credit as a result of any Government Acts or any
other cause beyond the control of the Issuing Lender and the Lenders.


 


(d)           Nothing in this
Section is intended to limit the Reimbursement Obligation of the Borrower
contained in Section 2.3(d) hereof. 
The obligations of the Credit Parties under this Section shall
survive the termination of this Agreement.  No act or omissions of any current or prior
beneficiary of a Letter of Credit shall in any way affect or impair the rights
of the Issuing Lender and the Lenders to enforce any right, power or benefit
under this Agreement.


 


59

















 


(e)           Notwithstanding
anything to the contrary contained in this Section, the Credit Parties shall
have no obligation to indemnify the Issuing Lender or any Lender in respect of
any liability incurred by the Issuing Lender or such Lender arising out of the
gross negligence or willful misconduct of the Issuing Lender (including action
not taken by the Issuing Lender or such Lender), as determined by a court of
competent jurisdiction or pursuant to arbitration.


 


Section 2.18         Illegality.


 


Notwithstanding any other provision of this Credit Agreement, if any
Change in Law shall make it unlawful for such Lender or its LIBOR Lending
Office to make or maintain LIBOR Rate Loans as contemplated by this Credit
Agreement or to obtain in the interbank eurodollar market through its LIBOR
Lending Office the funds with which to make such Loans, (a) such Lender
shall promptly notify the Administrative Agent and the Borrower thereof,
(b) the commitment of such Lender hereunder to make LIBOR Rate Loans or
continue LIBOR Rate Loans as such shall forthwith be suspended until the
Administrative Agent shall give notice that the condition or situation which
gave rise to the suspension shall no longer exist, and (c) such Lender’s
Loans then outstanding as LIBOR Rate Loans, if any, shall be converted on the
last day of the Interest Period for such Loans or within such earlier period as
required by law as Alternate Base Rate Loans. 
The Borrower hereby agrees to promptly pay any Lender, upon its demand,
any additional amounts necessary to compensate such Lender for actual and
direct costs (but not including anticipated profits) reasonably incurred by
such Lender in making any repayment in accordance with this
Section including, but not limited to, any interest or fees payable by
such Lender to lenders of funds obtained by it in order to make or maintain its
LIBOR Rate Loans hereunder.  A
certificate (which certificate shall include a description of the basis for the
computation) as to any additional amounts payable pursuant to this
Section submitted by such Lender, through the Administrative Agent, to the
Borrower shall be conclusive in the absence of manifest error.  Each Lender agrees to use reasonable efforts
(including reasonable efforts to change its LIBOR Lending Office) to avoid or
to minimize any amounts which may otherwise be payable pursuant to this
Section; provided, however, that such efforts shall not cause the
imposition on such Lender of any additional costs or legal or regulatory
burdens deemed by such Lender in its sole discretion to be material.


 


Section 2.19         Replacement
of Lenders.


 


(a)           Designation of a Different Lending Office.  If any Lender requests compensation under
Section 2.14, or requires the Borrower to pay any Indemnified Taxes or
additional amount to any Lender or any Governmental Authority for the account
of any Lender pursuant to Section 2.16, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.14 or
Section 2.16, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender.  The Borrower hereby


 


60
















 


agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in
connection with any such designation or assignment.


 


(b)           Replacement of Lenders.  If (i) any Lender requests compensation
under Section 2.14, (ii) the Borrower is required to pay any
Indemnified Taxes or additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, (iii) any
Lender becomes a Defaulting Lender or (iv) any Lender (other than Wells
Fargo) fails to consent to any proposed amendment, modification, termination,
waiver or consent with respect to any provision hereof or of any other Credit
Document that requires the unanimous approval of all of the Lenders, the
approval of all of the Lenders affected thereby or the approval of a class of
Lenders, in each case in accordance with the terms of Section 9.1, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such Lender to assign (at par) and delegate, without recourse (in accordance
with and subject to the restrictions contained in, and consents required by,
Section 9.6), all of its interests, rights and obligations under this
Agreement and the related Credit 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 (if any) specified in Section 9.6;


 


(B)           such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
and shall have been relieved of its obligations under its participations in
Letters of Credit, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Credit Documents (including any
amounts under Section 2.15) 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 2.14 or
payments required to be made pursuant to Section 2.16, such assignment
will result in a reduction in such compensation or payments thereafter;


 


(D)          in the case of any such assignment resulting from a
Lender’s failure to consent as described in clause (iv), the consent of the
Required Lenders shall have been obtained with respect to such amendment,
modification, termination, waiver or consent; and


 


(E)           such assignment does not
conflict with applicable law.


 


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.


 


61

















 


Section 2.20         Cash
Collateral.


 


(a)           Cash Collateral.  At any time that there shall exist a
Defaulting Lender, immediately upon the request of the Administrative Agent,
any Issuing Lender or the Swingline Lender, the Borrower shall deliver to the
Administrative Agent Cash Collateral in an amount sufficient to cover all
Fronting Exposure (after giving effect to Section 2.21 and any Cash
Collateral provided by the Defaulting Lender).


 


(b)           Grant of
Security Interest.  All Cash
Collateral (other than credit support not constituting funds subject to
deposit) shall be maintained in blocked deposit accounts with the
Administrative Agent, which accounts shall, if reasonably available, be
interest-bearing accounts.  The Borrower,
and to the extent provided by any Lender, such Lender, hereby grants to (and
subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the Issuing Lenders and the Lenders (including the
Swingline Lender), and agrees to maintain, a first priority security interest
in all such cash, deposit accounts and all balances therein as security for the
obligations to which such Cash Collateral may be applied pursuant to clause (c) below.  If at any time the Administrative Agent, any
Issuing Lender or the Swingline Lender reasonably determines that Cash
Collateral is subject to any right or claim of any Person other than the
Administrative Agent as herein provided, or that the total amount of such Cash
Collateral is less than the applicable Fronting Exposure and other obligations
secured thereby, the Borrower or the relevant Defaulting Lender will, promptly
upon demand by the Administrative Agent, any Issuing Lender or the Swingline
Lender, pay or provide to the Administrative Agent additional Cash Collateral
in an amount sufficient to eliminate such deficiency.


 


(c)           Application.  Notwithstanding anything to the contrary
contained in this Agreement, Cash Collateral provided under any of this Section or
Section 2.21  in respect of Letters
of Credit or Swingline Loans, shall be held and applied to the satisfaction of
the specific LOC Obligations, Swingline Loans, obligations to fund
participations therein (including, as to Cash Collateral provided by a
Defaulting Lender, any interest accrued on such obligation) and other
obligations for which the Cash Collateral was so provided, prior to any other
application of such property as may be provided for herein.


 


(d)           Release.  Cash Collateral (or the appropriate portion
thereof) provided to reduce Fronting Exposure, together with accrued interest
thereon (if any), shall be released promptly following (i) the elimination of the applicable Fronting Exposure giving
rise thereto (including by the termination of Defaulting Lender status of the
applicable Lender (or, as appropriate, its assignee)), or (ii) the Administrative Agent’s good faith
determination that there exists excess Cash Collateral (which determination
shall be confirmed by any Issuing Lender or Swingline Lender affected by such
release of Cash Collateral); provided, however, (A) that Cash Collateral furnished by or on behalf of a Credit
Party shall not be released during the continuance of a Default (and following
application as provided in this Section may be otherwise applied in
accordance with Section 2.13), and (B) the
Person providing Cash Collateral and each applicable Issuing 


 


62

















 


Lender or Swingline Lender may agree that Cash
Collateral shall not be released but instead held to support future anticipated
Fronting Exposure.


 


Section 2.21         Defaulting
Lenders.


 


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


 


(i)            Waivers and Amendments.  Such Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall
be restricted as set forth in the definition of Required Lenders and Section 9.1.


 


(ii)           Reallocation of Payments. Any payment
of principal, interest, fees or other amounts received by the Administrative
Agent for the account of such Defaulting Lender (whether voluntary or
mandatory, at maturity, pursuant to Article VII or otherwise) shall be
applied at such time or times as may be determined by the Administrative Agent
as follows: first, to the payment of any amounts
owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts
owing by such Defaulting Lender to any Issuing Lender or Swingline Lender
hereunder; third, as the Borrower may request (so
long as no Default exists), to the funding of any Loan in respect of which that
Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fourth,
if so determined by the Administrative Agent and the Borrower, to be held in a
non-interest bearing deposit account and released in order to satisfy
obligations of such Defaulting Lender to fund Loans under this Agreement; fifth, to the payment of any amounts owing to the Lenders,
the Issuing Lenders or Swingline Lender as a result of any judgment of a court
of competent jurisdiction obtained by any Lender, any Issuing Lenders or the
Swingline Lender against that Defaulting Lender as a result of such Defaulting
Lender’s breach of its obligations under this Agreement; sixth,
so long as no Default exists, to the payment of any amounts owing to any
Borrower as a result of any judgment of a court of competent jurisdiction
obtained by any Borrower against such Defaulting Lender as a result of such
Defaulting Lender’s breach of its obligations under this Agreement; and seventh, to such Defaulting Lender or as otherwise directed
by a court of competent jurisdiction; provided that if such payment is a
payment of the principal amount of any Loans or LOC Obligations in respect of
which such Defaulting Lender has not fully funded its appropriate share, and
such Loans were made or the related Letters of Credit were issued at a time
when the conditions set forth in Section 4.2 were satisfied or waived,
such payment shall be applied solely to pay the Loans of, and LOC Obligations
owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied
to the payment of any Loans of, or LOC Obligations owed to, such Defaulting
Lender. Any payments, prepayments or other amounts paid or payable to a
Defaulting 


 


63

















 


Lender
that are applied (or held) to pay amounts owed by a Defaulting Lender or to
post Cash Collateral pursuant to this Section shall be deemed paid to and
redirected by such Defaulting Lender, and each Lender irrevocably consents
hereto.


 


(iii)          Certain Fees.


 


(A)          Commitment Fees. (1) No
Commitment Fee shall accrue on any of the Commitments of a Defaulting Lender so
long as such Lender shall be a Defaulting Lender and (2) any Commitment Fee
accrued with respect to the Commitments of a Defaulting Lender during the
period prior to the time such Lender became a Defaulting Lender and unpaid at
such time shall not be payable by the Borrower so long as such Lender shall be
a Defaulting Lender.


 


(B)           Letter of Credit Fees.  A Defaulting Lender shall not be entitled to
receive any Letter of Credit Fee for any period during which it is a Defaulting
Lender, except that a Defaulting Lender shall be entitled to receive a Letter
of Credit Fee with respect to each Letter of Credit or portion thereof for
which it has provided Cash Collateral pursuant to Section 2.20.  With respect to any Letter of Credit Fee that
a Defaulting Lender is not entitled to receive in accordance with the terms of
this Section, such Letter of Credit Fee shall be paid to the non-Defaulting
Lenders to the extent such Defaulting Lender’s LOC Obligations have been
reallocated to the Non-Defaulting Lenders in accordance with clause (iv) below;
provided that if any portion of such Defaulting Lender’s LOC Obligations
have not been reallocated to the Non-Defaulting Lenders and have not been Cash
Collateralized by the Defaulting Lender (the “Exposed LOC Obligations”),
the Letter of Credit Fees corresponding to the Exposed LOC Obligations (1) shall
not be payable by the Borrower to the extent the Borrower has Cash
Collateralized such Exposed LOC Obligations and (2) shall be payable to
the Issuing Lender to the extent the Borrower has not Cash Collateralized such
Exposed LOC Obligations.


 


(iv)          Reallocation of
Participations to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s
LOC Obligations and its Swingline Exposure shall automatically (effective on
the day such Lender becomes a Defaulting Lender) be reallocated among the Non-Defaulting
Lenders in accordance with their respective Applicable Percentages (calculated
without regard to such Defaulting Lender’s Commitment) but only to the extent
that such reallocation does not cause the aggregate Committed Funded Exposure
of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Commitment.


 


(v)           Cash Collateral.  If the reallocation described in clause (iv) above
cannot, or can only partially, be effected, the Borrower shall, without
prejudice to any right or remedy available to them hereunder or under law,
immediately 


 


64

















 


following
notice by the Administrative Agent, any Issuing Lender or the Swingline Lender,
Cash Collateralize such Defaulting Lender’s LOC Obligations and its Swingline
Exposure (after giving effect to any partial reallocation pursuant to clause (iv) above)
in accordance with the procedures set forth in Section 2.20 for so long as
such LOC Obligations or Swingline Loans are outstanding.


 


(b)           Defaulting Lender
Cure.  If the Borrower, the
Administrative Agent, the Swingline Lender and all Issuing Lenders agree in
writing in their sole discretion that a Defaulting Lender should no longer be
deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and
subject to any conditions set forth therein (which may include arrangements
with respect to any Cash Collateral), such Lender will, to the extent
applicable, purchase that portion of outstanding Loans of the other Lenders or
take such other actions as the Administrative Agent may determine to be
necessary to cause the Committed Loans and funded and unfunded participations
in Letters of Credit and Swingline Loans to be held on a pro rata basis by the
Lenders in accordance with their Applicable Percentages (without giving effect
to Section 2.21(a)(iv)), whereupon such Lender will cease to be a
Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of
the Borrower while such Lender was a Defaulting Lender; and provided,
further, that except to the extent otherwise expressly agreed by the affected
parties, no change hereunder from Defaulting Lender to Lender will constitute a
waiver or release of any claim of any party hereunder arising from such Lender’s
having been a Defaulting Lender.


 


ARTICLE III


 


REPRESENTATIONS AND WARRANTIES


 


To induce the Lenders to enter into this Agreement and to make the
Extensions of Credit herein provided for, the Credit Parties hereby represent
and warrant to the Administrative Agent and to each Lender that:


 


Section 3.1            Financial
Condition.


 


(a)           (i) The audited Consolidated financial
statements of the Borrower and its Consolidated Subsidiaries for the fiscal
years ended 2007, 2008 and 2009 together with the related Consolidated
statements of operations, changes in stockholders’ equity and of cash flows for
the fiscal years ended on such dates, (ii) the unaudited Consolidated
financial statements of the Borrower and its Subsidiaries for the year-to-date
period ending on June 30, 2010, together with the related Consolidated
statements of operations for the year-to-date period ending on such date and (iii) a
pro forma balance sheet of the Borrower and its Subsidiaries as of  June 30, 2010:


 


(A)          were prepared in accordance
with GAAP but without footnotes for the unaudited statements, consistently
applied throughout the period covered thereby, except as otherwise expressly noted
therein;


 


65

















 


(B)           fairly present the financial
condition of the Borrower and its Subsidiaries, as applicable, as of the date
thereof (subject, in the case of the unaudited financial statements, to normal year-end
adjustments) and results of operations for the period covered thereby; and


 


(C)           show all material
Indebtedness and other liabilities, direct or contingent, as required by GAAP,
of the Borrower and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and contingent obligations.


 


(b)           The three-year projections of the Borrower and its
Subsidiaries delivered to the Lenders on or prior to the Closing Date have been
prepared in good faith based upon reasonable assumptions.


 


Section 3.2            No
Material Adverse Effect; Internal Control Event.


 


Since  June 30, 2010 (and, in
addition, after delivery of annual audited financial statements in accordance
with Section 5.1(a), from the date of the most recently delivered annual
audited financial statements), there has been no development or event which has
had or could reasonably be expected to have a Material Adverse Effect and (b) no
known Internal Control Event has occurred that has not been (i) disclosed to the Administrative Agent
and the Lenders and (ii) remedied or
otherwise diligently addressed (or is in the process of being diligently
addressed) by the Borrower and/or the applicable Credit Party.


 


Section 3.3            Corporate
Existence; Compliance with Law.


 


Each of the Credit Parties (a) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation,
organization or formation, (b) has the requisite power and authority and
the legal right to own and operate all its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged
and has taken all actions necessary to maintain all rights, privileges,
licenses and franchises necessary or required in the normal conduct of its
business,  except to the extent such
failure could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, (c) is duly qualified to conduct business
and in good standing under the laws of (i) the jurisdiction of its organization
or formation, (ii) the jurisdiction where its chief executive office is
located and (iii) each other jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification except to the extent that the failure to so qualify or be in good
standing in any such other jurisdiction could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on the
business or operations of the Credit Parties and their Subsidiaries in such
jurisdiction and (d) is in compliance with all Requirements of Law,
organizational documents, government permits and government licenses except to
the extent such non-compliance could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.  Set forth on Schedule 3.3 as of
the Closing Date, or as of the last date such Schedule was required to be
updated in accordance with Section 5.2, is the following information for
each Credit Party:  the exact legal name and
any former legal 


 


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names of such Credit Party in the four (4) months prior to the
Closing Date, the state of incorporation or organization, the type of
organization, the jurisdictions in which such Credit Party is qualified to do
business, the chief executive office, the principal place of business, the
business phone number, the organization identification number and ownership
information (e.g. publicly held, if private or partnership, the owners and partners
of each of the Credit Parties).  Set
forth on Schedule 2 to the Disclosure Letter is the federal tax identification
number for each Credit Party as of the Closing Date.


 


Section 3.4            Corporate
Power; Authorization; Enforceable Obligations.


 


Each of the Credit Parties has full power and authority and the legal
right to make, deliver and perform the Credit Documents to which it is party
and has taken all necessary limited liability company, partnership or corporate
action to authorize the execution, delivery and performance by it of the Credit
Documents to which it is party.  Each
Credit Document to which it is a party has been duly executed and delivered on
behalf of each Credit Party.  Each Credit
Document to which it is a party constitutes a legal, valid and binding
obligation of each Credit Party, enforceable against such Credit Party in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).


 


Section 3.5            No
Legal Bar; No Default.


 


The
execution, delivery and performance by each Credit Party of the Credit
Documents to which such Credit Party is a party, the borrowings thereunder and
the use of the proceeds of the Loans (a) will not violate any Requirement
of Law or any Contractual Obligation of any Credit Party (except those as to
which waivers or consents have been obtained), (b) will not conflict with,
result in a breach of or constitute a default under the articles of
incorporation, bylaws, articles of organization, operating agreement or other
organization documents of the Credit Parties or any material agreement or other
material instrument to which such Person is a party or by which any of its
properties may be bound or any material approval or material consent from any
Governmental Authority relating to such Person, and (c) will not result in, or require, the creation or imposition
of any Lien on any Credit Party’s properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens arising under
or contemplated in connection with the Credit Documents or Permitted
Liens.  No Credit Party is in default
under or with respect to any of its Contractual Obligations in any material
respect.  No Default or Event of Default
has occurred and is continuing.


 


Section 3.6            No
Material Litigation.


 


No
litigation, investigation, claim, criminal prosecution, civil investigative
demand, imposition of criminal or civil fines and penalties, or any other
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the best knowledge of the Credit Parties, threatened by or against any
Credit Party or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to the Credit Documents
or any Extension of Credit or any of the transactions contemplated hereby, or
(b) which could reasonably be expected 


 


67

















 


to
have a Material Adverse Effect.  No
permanent injunction, temporary restraining order or similar decree has been
issued against any Credit Party or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect.


 


Section 3.7            Investment
Company Act; etc.


 


No
Credit Party is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as
amended.  No Credit Party is subject to
regulation under the Federal Power Act, the Interstate Commerce Act, or any
federal or state statute or regulation limiting its ability to incur the Credit
Party Obligations.


 


Section 3.8            Margin
Regulations.


 


No
part of the proceeds of any Extension of Credit hereunder will be used directly
or indirectly for any purpose that violates, or that would require any Lender
to make any filings in accordance with, the provisions of Regulation T, U
or X of the Board of Governors of the Federal Reserve System as now and
from time to time hereafter in effect. 
The Credit Parties and their Subsidiaries (a) are not engaged,
principally or as one of their important activities, in the business of
extending credit for the purpose of “purchasing” or “carrying” “margin stock”
within the respective meanings of each of such terms under Regulation U and (b) taken
as a group do not own “margin stock” except as identified in the financial
statements referred to in Section 3.1 or delivered pursuant to Section 5.1
and the aggregate value of all “margin stock” owned by the Credit Parties and
their Subsidiaries taken as a group does not exceed 25% of the value of their
assets.


 


Section 3.9            ERISA.


 


Neither a Reportable Event nor an “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code.  No termination of a Single
Employer Plan has occurred resulting in any liability that has remained
underfunded, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period.  The present value of
all accrued benefits under each Single Employer Plan (based on those
assumptions used to fund such Plans) did not, as of the last annual valuation
date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued
benefits.  Neither any Credit Party nor
any Commonly Controlled Entity is currently subject to any liability for a
complete or partial withdrawal from a Multiemployer Plan.


 


Section 3.10         Environmental
Matters.


 


Except
as could not reasonably be expected, individually or in the aggregate, to have
a Material Adverse Effect:


 


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(a)           The facilities and properties owned, leased or
operated by the Credit Parties or any of their Subsidiaries (the “Properties”)
do not contain any Materials of Environmental Concern in amounts or
concentrations which (i) constitute a violation of, or (ii) could
give rise to liability on behalf of any Credit Party under, any Environmental
Law.


 


(b)           The Properties and all operations of the Credit
Parties and/or their Subsidiaries at the Properties are in compliance, and have
in the last five years been in compliance, with all applicable Environmental
Laws, and there is no contamination at, under or about the Properties or
violation of any Environmental Law with respect to the Properties or the
business operated by the Credit Parties or any of their Subsidiaries (the “Business”).


 


(c)           Neither the Credit Parties nor their Subsidiaries
have received any written or actual notice of violation, alleged violation,
non-compliance, liability or potential liability on behalf of any Credit Party
with respect to environmental matters or Environmental Laws regarding any of
the Properties or the Business, nor do the Credit Parties or their Subsidiaries
have knowledge or reason to believe that any such notice will be received or is
being threatened.


 


(d)           Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a manner
or to a location that could reasonably be expected to give rise to liability on
behalf of any Credit Party under any Environmental Law, and no Materials of
Environmental Concern have been generated, treated, stored or disposed of at,
on or under any of the Properties in violation of, or in a manner that could
reasonably be expected to give rise to liability on behalf of any Credit Party
under, any applicable Environmental Law.


 


(e)           No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the Credit Parties and
their Subsidiaries, threatened, under any Environmental Law to which any Credit
Party or any Subsidiary is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business.


 


(f)            There has been
no release or threat of release of Materials of Environmental Concern at or
from the Properties, or arising from or related to the operations of any Credit
Party or any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a manner that
could give rise to liability on behalf of any Credit Party under Environmental
Laws.


 


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Section 3.11         Use
of Proceeds.


 


The proceeds of the Extensions of Credit shall be used by the Borrower
solely (a) to refinance certain
existing Indebtedness of the Credit Parties and their Subsidiaries, (b) to pay any costs, fees and expenses
associated with this Agreement on the Closing Date, (c) to finance Permitted Acquisitions, (d) to provide for the working capital and other general
corporate purposes of the Credit Parties and their Subsidiaries, (e) to repurchase shares of the Borrower’s
Equity Interests to the extent permitted under this Agreement and (f) for such other purposes as may be
agreed upon by the Required Lenders from time to time.


 


Section 3.12         Subsidiaries;
Joint Ventures; Partnerships.


 


Set forth on Schedule 3.12 is a complete and accurate list
of all Subsidiaries, joint ventures and partnerships of the Credit Parties as
of the Closing Date.  Information on the
attached Schedule includes the following: 
(a) the number of shares of each class of Equity Interest or other
equity interests of each Subsidiary outstanding and (b) the number and
percentage of outstanding shares of each class of Equity Interest owned by the
Borrower or any of its Subsidiaries.  The
outstanding Equity Interest and other equity interests of all such Subsidiaries
is validly issued, fully paid and non-assessable and is owned free and clear of
all Liens (other than those arising under or contemplated in connection with
the Credit Documents).  There are no
outstanding subscriptions, options, warrants, calls, rights or other agreements
or commitments (other than stock options granted to employees or directors and
directors’ qualifying shares) of any nature relating to any Equity Interest of
the Borrower or any Subsidiary, except as contemplated in connection with the
Credit Documents.  The Borrower shall
update Schedule 3.12 from time to time, in accordance with Section 5.2,
by providing a replacement Schedule 3.12 to the Administrative Agent.


 


Section 3.13         Ownership.


 


Each
of the Credit Parties and its Subsidiaries is the owner of, and has good and
marketable title to or a valid leasehold interest in, all of its respective
assets, which, together with assets leased or licensed by the Credit Parties
and their Subsidiaries, represents all assets in the aggregate material to the
conduct of the business of the Credit Parties and their Subsidiaries, and
(after giving effect to the Transactions) none of such assets is subject to any
Lien other than Permitted Liens.  Each
Credit Party and its Subsidiaries enjoys peaceful and undisturbed possession under
all of its leases and all such leases are valid and subsisting and in full
force and effect.


 


Section 3.14         Indebtedness.


 


Except
as otherwise permitted under Section 6.1, the Credit Parties and their
Subsidiaries have no Indebtedness.


 


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Section 3.15         Taxes.


 


Each
of the Credit Parties and its Subsidiaries has filed, or caused to be filed,
all income tax returns and all other material tax returns (federal, state,
local and foreign) required to be filed and paid (a) all amounts of taxes
shown thereon to be due (including interest and penalties) and (b) all
other taxes, fees, assessments and other governmental charges (including
mortgage recording taxes, documentary stamp taxes and intangibles taxes) owing
by it, except for such taxes (i) that are not yet delinquent or (ii) that
are being contested in good faith and by proper proceedings, and against which
adequate reserves are being maintained in accordance with GAAP.  None of the Credit Parties or their
Subsidiaries is aware as of the Closing Date of any proposed tax assessments
against it or any of its Subsidiaries.


 


Section 3.16         Intellectual
Property Rights.


 


Each
of the Credit Parties and its Subsidiaries owns, or has the legal right to use,
all material Intellectual Property necessary for each of them to conduct its
business as currently conducted.  Set
forth on Schedule 3.16 is a list of all registered or issued
Intellectual Property (including all applications for registration and
issuance) owned by each of the Credit Parties or that each of the Credit
Parties has the right to use as of the Closing Date or as of the date such
Schedule was last updated in accordance with the terms of Section 5.2
(including name/title, current owner, registration or application number, and
registration or application date). 
Except as disclosed in Schedule 3.16 hereto, (a) each Credit
Party has the right to use its material Intellectual Property in perpetuity and
without payment of royalties, (b) all registrations with and applications
to Governmental Authorities in respect of such material Intellectual Property
are valid and in full force and effect and are not subject to the payment of
any taxes or maintenance fees or the taking of any interest therein, held by
any of the Credit Parties to maintain their validity or effectiveness, and (c) there
are no restrictions on the direct or indirect transfer of any Contractual
Obligation, or any interest therein, held by any of the Credit Parties in
respect of such material Intellectual Property which has not been obtained.  None of the Credit Parties is in default (or
with the giving of notice or lapse of time or both, would be in default) under
any license to use its material Intellectual Property; no claim has been
asserted and is pending by any Person challenging or questioning the use of any
such material Intellectual Property or the validity or effectiveness of any
such material Intellectual Property, nor do the Credit Parties or any of their
Subsidiaries know of any such claim; and, to the knowledge of the Credit
Parties or any of their Subsidiaries, the use of such material Intellectual
Property by any of the Credit Parties or any of its Subsidiaries does not
infringe on the rights of any Person. 
The Credit Parties have recorded or deposited with and paid to the
United States Copyright Office, the Register of Copyrights, the Copyrights
Royalty Tribunal or other Governmental Authority, all notices, statements of
account, royalty fees and other documents and instruments required under the
terms and conditions of any Contractual Obligation of the Credit Parties and/or
under Title 17 of the United States Code and the rules and regulations
issued thereunder (collectively, the “Copyright Act”), and are not
liable to any Person for copyright infringement under the Copyright Act or any
other law, rule, regulation, contract or license as a result of their business
operations.  Schedule 3.16 shall
be updated from time to time, in accordance with Section 5.2, by the
Borrower to include new Intellectual Property acquired after the Closing Date
by giving written notice thereof to the Administrative Agent.


 


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Section 3.17         Solvency.


 


After
giving effect to the Transactions, (a) each
of the Credit Parties is solvent and is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, and (b) the
fair saleable value of each Credit Party’s assets, measured on a going concern
basis, exceeds all probable liabilities, including those to be incurred
pursuant to this Agreement.  After giving
effect to the Transactions, none of the Credit Parties (i) has unreasonably small capital in relation to the business
in which it is or proposes to be engaged or (ii) has
incurred, or believes that it will incur debts beyond its ability to pay such
debts as they become due.  In executing the Credit Documents and
consummating the Transactions, none of the Credit Parties intends to hinder,
delay or defraud either present or future creditors or other Persons to which
one or more of the Credit Parties is or will become indebted.


 


Section 3.18         Investments.


 


All
Investments of each of the Credit Parties and its Subsidiaries are Permitted
Investments.


 


Section 3.19         Location
of Collateral.


 


Set
forth on Schedule 3.19(a) is a list of all Properties of the
Credit Parties as of the Closing Date with street address, county and state
where located.  Set forth on Schedule
3.19(b) is a list of all locations where any tangible personal property
of the Credit Parties (excluding (a) inventory
in transit or on temporary display at a customer location or (b) locations where the value of such
tangible personal property is less than $100,000) is located as of the Closing
Date, including county and state where located. 
Set forth on Schedule 3.19(c) is the state of
incorporation or organization, the chief executive office, the principal place
of business and organization identification number of each of the Credit
Parties and their Subsidiaries as of the Closing Date.


 


Section 3.20         No
Burdensome Restrictions.


 


None
of the Credit Parties or their Subsidiaries is a party to any agreement or
instrument or subject to any other obligation or any charter or corporate
restriction or any provision of any applicable law, rule or regulation
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.


 


Section 3.21         Brokers’
Fees.


 


None
of the Credit Parties or their Subsidiaries has any obligation to any Person in
respect of any finder’s, broker’s, investment banking or other similar fee in
connection with any of the transactions contemplated under the Credit Documents
other than the closing and other fees payable pursuant to this Agreement and as
set forth in the Fee Letter.


 


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Section 3.22         Labor
Matters.


 


There
are no collective bargaining agreements or Multiemployer Plans covering the
employees of the Credit Parties or any of their Subsidiaries as of the Closing
Date, other than as set forth in Schedule 3.22 hereto, and none of
the Credit Parties or their Subsidiaries (a) has suffered any strikes,
walkouts, work stoppages or other material labor difficulty within the
last five years, other than as set forth in Schedule 3.22 hereto,
or (b) has knowledge of any potential or pending strike, walkout or work
stoppage.  Other than as set forth on Schedule 3.22,
no unfair labor practice complaint is pending against any Credit Party or any
of its Subsidiaries.   There are no
strikes, walkouts, work stoppages or other material labor difficulty
pending or threatened against any Credit Party.


 


Section 3.23         Accuracy and Completeness of Information.


 


All
factual information heretofore, contemporaneously or hereafter furnished by or
on behalf of any Credit Party or any of its Subsidiaries to the Administrative
Agent, the Arrangers or any Lender for purposes of or in connection with this
Agreement or any other Credit Document, or any transaction contemplated hereby
or thereby, is or will be true and accurate in all material respects and not
incomplete by omitting to state any material fact necessary to make such
information not misleading.  There is no
fact now known to any Credit Party or any of its Subsidiaries which,
individually or in the aggregate, has, or could reasonably be expected to have,
a Material Adverse Effect, which fact has not been set forth herein, in the
financial statements of the Borrower and its Subsidiaries furnished to the
Administrative Agent and the Lenders, or in any certificate, opinion or other
written statement made or furnished by any Credit Party to the Administrative
Agent and the Lenders.


 


Section 3.24         Material
Contracts.


 


Schedule
1 of the Disclosure Letter sets forth a complete and accurate list of
all Material Contracts of the Credit Parties and their Subsidiaries in effect
as of the Closing Date.  Each Material
Contract is, and after giving effect to the Transactions will be, in full force
and effect in accordance with the terms thereof.  The Credit Parties have delivered to the
Administrative Agent a true and complete copy of each Material Contract.  Schedule 1 of the Disclosure Letter
shall be updated from time to time, in accordance with Section 5.2 by the
Borrower to include new Material Contracts by giving written notice thereof to
the Administrative Agent.


 


Section 3.25         Insurance.


 


The
insurance coverage of the Credit Parties and their Subsidiaries as of the
Closing Date is outlined as to carrier, policy number, expiration date, type
and amount on Schedule 4 to the Disclosure Letter and such insurance
coverage complies with the requirements set forth in Section 5.5(b).  Schedule 4 to the Disclosure Letter
shall be updated from time to time, in accordance with Section 5.2 by the
Borrower to include additional insurance coverage.


 


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Section 3.26         Security
Documents.


 


The
Security Documents create valid security interests in, and Liens on, the
Collateral purported to be covered thereby. 
Except as set forth in the Security Documents, such security interests
and Liens are currently (or will be, upon (a) the filing of appropriate
financing statements with the Secretary of State of the state of incorporation
or organization for each Credit Party, the filing of appropriate assignments or
notices with the United States Patent and Trademark Office and the United
States Copyright Office, and the recordation of the Mortgage Instruments, in
each case in favor of the Administrative Agent, on behalf of the Lenders, and (b) the
Administrative Agent obtaining Control (as defined in the Security Agreement)
or possession over those items of Collateral in which a security interest is
perfected through Control or possession) perfected security interests and
Liens, prior to all other Liens other than Permitted Liens.


 


Section 3.27         Regulation
H.


 


No
Mortgaged Property is a Flood Hazard Property.


 


Section 3.28         Classification
of Senior Indebtedness.


 


The
Credit Party Obligations constitute “Senior Indebtedness”, “Designated Senior
Indebtedness” or any similar designation under and as defined in any agreement
governing any Subordinated Debt and the subordination provisions set forth in
each such agreement are legally valid and enforceable against the parties
thereto.


 


Section 3.29         Anti-Terrorism
Laws.


 


Neither any Credit Party nor any of its Subsidiaries is
an “enemy” or an “ally of the enemy” within the meaning of Section 2 of
the Trading with the Enemy Act of the United States of America (50 U.S.C. App.
§§ 1 et seq.), as amended.  Neither any Credit Party nor any or its
Subsidiaries is in violation of (a) the Trading with the Enemy Act, as
amended, (b) any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto or (c) the
Patriot Act.  None of the Credit Parties (i) is a
blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to
the best of its knowledge, engages in any dealings or transactions, or is
otherwise associated, with any such blocked person.


 


Section 3.30         Compliance
with OFAC Rules and Regulations.


 


None
of the Credit Parties or their Subsidiaries or their respective Affiliates
(a) is a Sanctioned Person, (b) has more than 15% of its assets in
Sanctioned Countries, or (c) derives more than 15% of its operating income
from investments in, or transactions with Sanctioned Persons or Sanctioned
Countries.  No part of the proceeds of
any Extension of Credit hereunder will be used directly or indirectly to fund
any operations in, finance any investments or activities in or make any
payments to, a Sanctioned Person or a Sanctioned Country.


 


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Section 3.31         Compliance
with FCPA.


 


Each
of the Credit Parties and their Subsidiaries is in compliance with the Foreign
Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq., and
any foreign counterpart thereto.  None of
the Credit Parties or their Subsidiaries has made a payment, offering, or
promise to pay, or authorized the payment of, money or anything of value
(a) in order to assist in obtaining or retaining business for or with, or
directing business to, any foreign official, foreign political party, party
official or candidate for foreign political office, (b) to a foreign
official, foreign political party or party official or any candidate for
foreign political office, and (c) with the intent to induce the recipient
to misuse his or her official position to direct business wrongfully to such
Credit Party or its Subsidiary or to any other Person, in violation of the
Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq.


 


Section 3.32         Consent;
Governmental Authorizations.


 


No
approval, consent or authorization of, filing with, notice to or other act by
or in respect of, any Governmental Authority or any other Person is required in
connection with acceptance of Extensions of Credit by the Borrower or the
making of the Guaranty hereunder or with the execution, delivery or performance
of any Credit Document by the Credit Parties (other than those which have been
obtained) or with the validity or enforceability of any Credit Document against
the Credit Parties (except such filings as are necessary in connection with the
perfection of the Liens created by such Credit Documents).


 


Section 3.33         Government
Contracts.


 


No Credit Party or any of its Subsidiaries is
materially in default as to the terms of any Material Government Contract or
has received any notices of default or notices to cure under any Material
Government Contract for which the performance deficiency noted by any
Governmental Authority has not been cured or otherwise resolved to such
Governmental Authority’s satisfaction.


 


Section 3.34         Assignment
of Payments.


 


Except with respect to contracts for which the
government has determined that a prohibition on assignment of claims is in the
government’s interest, each of the Credit Parties and their Subsidiaries has
the right to assign to the Administrative Agent all payments due or to become
due under each of such Person’s Government Contracts, and there exists no
uncancelled prior assignment of payments under any of such Credit Party’s
Government Contracts.


 


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ARTICLE IV


 


CONDITIONS
PRECEDENT


 


Section 4.1            Conditions
to Closing Date.


 


This Agreement shall become effective upon, and the obligation of each
Lender to make the initial Revolving Loans on the Closing Date is subject to,
the satisfaction of the following conditions precedent:


 


(a)           Execution of
Credit Agreement; Credit Documents and Lender Consents.  The Administrative Agent shall have received (i) counterparts of this Agreement,
executed by a duly authorized officer of each party hereto, (ii) for the account of each Revolving
Lender requesting a promissory note, a Revolving Note, (iii) for the account of the Swingline Lender requesting a
promissory note, the Swingline Note, (iv) counterparts
of the Security Agreement and the Pledge Agreement, in each case conforming to
the requirements of this Agreement and executed by duly authorized officers of
the Credit Parties or other Person, as applicable, (v) counterparts of any other Credit Document, executed by the
duly authorized officers of the parties thereto, including without limitation
the Disclosure Letter, and (vi) executed  Lender Consents from each Lender authorizing
the Administrative Agent to enter this Credit Agreement on their behalf.


 


(b)           Authority
Documents.  The
Administrative Agent shall have received the following:


 


(i)            Articles of
Incorporation/Charter Documents.  Original certified articles of incorporation
or other charter documents, as applicable, of each Credit Party certified (A) by
an officer of such Credit Party (pursuant to an officer’s certificate in
substantially the form of Exhibit 4.1(b) attached hereto) as
of the Closing Date to be true and correct and in force and effect as of such
date, and (B) to be true and complete as of a recent date by the
appropriate Governmental Authority of the state of its incorporation or organization,
as applicable.


 


(ii)           Resolutions.  Copies of resolutions of the board of
directors or comparable managing body of each Credit Party approving and
adopting the Credit Documents, the transactions contemplated therein and
authorizing execution and delivery thereof, certified by an officer of such
Credit Party (pursuant to an officer’s certificate in substantially the form of
Exhibit 4.1(b) attached hereto) as of the Closing Date to be
true and correct and in force and effect as of such date.


 


(iii)          Bylaws/Operating Agreement.  A copy of the bylaws or comparable operating
agreement of each Credit Party certified by an officer of such Credit Party
(pursuant to an officer’s certificate in substantially the form of Exhibit 4.1(b) attached
hereto) as of the Closing Date to be true and correct and in force and effect
as of such date.


 


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(iv)          Good Standing.  Original certificates of good standing,
existence or its equivalent with respect to each Credit Party certified as of a
recent date by the appropriate Governmental Authorities of the state of
incorporation or organization and each other state in which the failure to so
qualify and be in good standing could reasonably be expected to have a Material
Adverse Effect.


 


(v)           Incumbency.  An incumbency certificate of each Credit
Party certified by an officer (pursuant to an officer’s certificate in
substantially the form of Exhibit 4.1(b) attached hereto) to
be true and correct as of the Closing Date.


 


(c)           Legal Opinion
of Counsel.  The
Administrative Agent shall have received an opinion or opinions (including, if
reasonably requested by the Administrative Agent, local counsel opinions) of
counsel for the Credit Parties, dated the Closing Date and addressed to the Administrative
Agent and the Lenders, in form and substance acceptable to the Administrative
Agent (which shall include, without limitation, opinions with respect to the
due organization and valid existence of each Credit Party, opinions as to
perfection of the Liens granted to the Administrative Agent pursuant to the
Security Documents and opinions as to the non-contravention of the Credit
Parties’  organizational documents and Material
Contracts).


 


(d)           Personal Property Collateral.  The Administrative Agent shall have received,
in form and substance satisfactory to the Administrative Agent:


 


(i)            (A) searches of UCC
filings in the jurisdiction of incorporation or formation, as applicable, of
each Credit Party and each jurisdiction where any Collateral is located or
where a filing would need to be made in order to perfect the Administrative
Agent’s security interest in the Collateral, copies of the financing statements
on file in such jurisdictions and evidence that no Liens exist other than
Permitted Liens and (B) tax lien, judgment and pending litigation
searches;


 


(ii)           searches of ownership of
Intellectual Property in the appropriate governmental offices and such
patent/trademark/copyright filings as requested by the Administrative Agent in
order to perfect the Administrative Agent’s security interest in the
Intellectual Property;


 


(iii)          completed UCC financing
statements for each appropriate jurisdiction as is necessary, in the
Administrative Agent’s sole discretion, to perfect the Administrative Agent’s
security interest in the Collateral;


 


(iv)          stock or membership
certificates, if any, evidencing the Equity Interest pledged to the
Administrative Agent pursuant to the Pledge Agreement and duly executed in
blank undated stock or transfer powers;


 


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(v)           duly executed consents as
are necessary, in the Administrative Agent’s sole discretion, to perfect the
Lenders’ security interest in the Collateral;


 


(vi)          to the extent required by
the Administrative Agent, in the case of any personal property Collateral with
an aggregate value in excess of $1,000,000 located at premises leased by a
Credit Party and set forth on Schedule 3.19(a) such estoppel
letters, consents and waivers from the landlords of such real property to the
extent the Borrower is able to secure such letters, consents and waivers after
using commercially reasonable efforts (such letters, consents and waivers shall
be in form and substance satisfactory to the Administrative Agent, it being
acknowledged and agreed that any landlord waiver in the form of Exhibit 4.1(d) is
satisfactory to the Administrative Agent);


 


(vii)         all instruments
and chattel paper in the possession of any of the Credit Parties, together with
allonges or assignments as may be necessary or appropriate to perfect the
Administrative Agent’s and the Lenders’ security interest in the Collateral;


 


(viii)        with respect to
the prior Indebtedness of the Credit Parties, such documentation as may be
required by the Administrative Agent to demonstrate that any previously
executed deposit account control agreements with respect to the Credit Parties’
deposit accounts have been terminated;


 


(ix)           with respect to
the prior Indebtedness of the Credit Parties, such documentation as may be
required by the Administrative Agent to demonstrate that any previously
executed securities account control agreements with respect to the Credit
Parties’ securities accounts have been terminated; and


 


(x)            such documentation as may be
required by the Administrative Agent to comply with the Federal Assignment of
Claims Act; and the Credit Parties shall take such actions as may be required
by the Administrative Agent to file such documentation with the appropriate
Governmental Authorities.


 


(e)           Real Property Collateral.  The Administrative Agent shall have received
copies of fully executed releases of any Mortgage Instruments encumbering the
Hawthorne Property.


 


(f)            Liability,
Casualty, Property and Business Interruption Insurance.  The Administrative Agent shall have received
copies of insurance policies or certificates and endorsements of insurance
evidencing liability, casualty, property and business interruption insurance
meeting the requirements set forth herein or in the Security Documents.  The Administrative Agent shall be named (i) as lender’s loss payee, as its interest
may appear, with respect to any such insurance providing coverage in respect of
any Collateral and (ii) as
additional insured, as its interest may appear, with respect to any such
insurance providing liability coverage, and the Borrower will use its
commercially reasonable efforts to have each provider of any such insurance
agree, by


 


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endorsement upon the policy or policies issued by it or by independent
instruments to be furnished to the Administrative Agent, that it will give the
Administrative Agent thirty (30) days prior written notice before any such
policy or policies shall be altered or cancelled.


 


(g)           Solvency Certificate.  The Administrative Agent shall have received
an officer’s certificate prepared by the chief financial officer of the
Borrower as to the financial condition, solvency and related matters of the
Credit Parties and their Subsidiaries, after giving effect to the initial
borrowings under the Credit Documents, in substantially the form of Exhibit 4.1(g) hereto.


 


(h)           Account
Designation Notice.  The
Administrative Agent shall have received the executed Account Designation
Notice in the form of Exhibit 1.1(a) hereto.


 


(i)            Notice of Borrowing.  The Administrative Agent shall have received
a Notice of Borrowing with respect to the Loans to be made on the Closing Date.


 


(j)            Consents.  The Administrative Agent shall have received
evidence that all boards of directors, governmental, shareholder and material
third party consents and approvals necessary in connection with the
Transactions have been obtained and all applicable waiting periods have expired
without any action being taken by any authority that could restrain, prevent or
impose any material adverse conditions on such transactions or that could seek
or threaten any of the foregoing.


 


(k)           Compliance with Laws.  The financings and other Transactions
contemplated hereby shall be in compliance with all applicable laws and
regulations (including all applicable securities and banking laws, rules and
regulations).


 


(l)            Bankruptcy.  There shall be no bankruptcy or insolvency
proceedings pending with respect to any Credit Party or any Subsidiary thereof.


 


(m)          Existing Indebtedness of the Credit Parties.  All of the existing Indebtedness for borrowed
money of the Credit Parties and their Subsidiaries (including, without
limitation, the Existing Credit Facility but excluding Indebtedness permitted
to exist pursuant to Section 6.1) shall be repaid in full and all security
interests related thereto shall be terminated on or prior to the Closing Date.


 


(n)           Financial Statements.  The Administrative Agent and the Lenders
shall have received copies of the financial statements referred to in Section 3.1,
each in form and substance satisfactory to it.


 


(o)           No Material Adverse Change.  Since June 30, 2010,
there shall have been no material adverse change in the business, properties,
operations or condition (financial or otherwise) of the Borrower or any of its
Subsidiaries.


 


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(p)           Financial Condition
Certificate.  The
Administrative Agent shall have received a certificate or certificates executed
by a Responsible Officer of the Borrower as of the Closing Date, substantially
in the form of Exhibit 4.1(p) stating that (i) there does
not exist any pending or threatened (a) litigation,
injunction, order or claim with respect to the Borrower or any of its  subsidiaries which could reasonably be expected to have a
Material Adverse Effect on the Credit Parties taken as a whole or (b) bankruptcy or insolvency proceedings
with respect to the Credit Parties, (ii) immediately
after giving effect to this Agreement, the other Credit Documents, and all the
Transactions contemplated to occur on such date, (A) no Default or Event of
Default exists, (B) all
representations and warranties contained herein and in the other Credit
Documents are true and correct, and (C) the Credit Parties are in pro forma compliance with
each of the initial financial covenants set forth in Section 5.9 (as
evidenced through detailed calculations of such financial covenants on a
schedule to such certificate) as of June 30, 2010 and (iii) each of
the other conditions precedent in Section 4.1 have been satisfied, except
to the extent the satisfaction of any such condition is subject to the judgment
or discretion of the Administrative Agent or any Lender.


 


(q)           Patriot Act
Certificate.  At least
five (5) Business Days prior to the Closing Date,  the
Administrative Agent shall have received a certificate satisfactory thereto,
substantially in the form of Exhibit 4.1(q), for benefit of itself
and the Lenders, provided by the Borrower that sets forth information required
by the Patriot Act including, without limitation, the identity of the Credit
Parties, the name and address of the Credit Parties and other information that
will allow the Administrative Agent or any Lender, as applicable, to identify
the Credit Parties in accordance with the Patriot Act.


 


(r)            Material
Contracts.  The
Administrative Agent shall have received true and complete copies, certified by
an officer of the Borrower as true and complete, of all Material Contracts not
previously delivered to the Administrative Agent, together with all exhibits and
schedules.


 


(s)           Consolidated
Funded Debt.  The
Administrative Agent shall have received evidence reasonably satisfactory
thereto provided by the Credit Parties that Consolidated Funded Debt  minus the outstanding amount of all Performance
Letters of Credit (including Letters of Credit issued hereunder that are
Performance Letters of Credit) is less than or equal to $100,000,000.00 after
giving effect to the initial borrowings under the Credit Agreement and the
consummation of the Transactions.


 


(t)            Fees and
Expenses.  The
Administrative Agent and the Lenders shall have received all fees and expenses,
if any, owing pursuant to the Fee Letter and Section 2.5.


 


(u)           Additional Matters.  All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to the Administrative Agent and
its counsel.


 


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Section 4.2            Conditions
to All Extensions of Credit.


 


The obligation of each Lender to make any Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent on the
date of making such Extension of Credit:


 


(a)           Representations
and Warranties.  The representations
and warranties made by the Credit Parties herein, in the Security Documents and
which are contained in any certificate furnished at any time under or in
connection herewith shall (i) with respect to representations and
warranties that contain a materiality qualification, be true and correct and (ii) with
respect to representations and warranties that do not contain a materiality
qualification, be true and correct in all material respects, in each case on
and as of the date of such Extension of Credit as if made on and as of such
date except for any representation or warranty made as of an earlier date,
which representation and warranty shall remain true and correct as of such
earlier date.


 


(b)           No Default or
Event of Default.  No Default or
Event of Default shall have occurred and be continuing on such date or after
giving effect to the Extension of Credit to be made on such date unless such
Default or Event of Default shall have been waived in accordance with this
Agreement.


 


(c)           Compliance
with Commitments.  Immediately after
giving effect to the making of any such Extension of Credit (and the
application of the proceeds thereof), (i) the sum of the aggregate
principal amount of outstanding Revolving Loans plus outstanding
Swingline Loans plus outstanding LOC Obligations shall not exceed the
Revolving Committed Amount then in effect, (ii) the outstanding LOC
Obligations shall not exceed the LOC Committed Amount, and (iii) the
outstanding Swingline Loans shall not exceed the Swingline Committed Amount.


 


(d)           Additional
Conditions to Revolving Loans.  If a
Revolving Loan is requested, all conditions set forth in Section 2.1 shall
have been satisfied.


 


(e)           Additional
Conditions to Letters of Credit.  If
the issuance of a Letter of Credit is requested, all conditions set forth in
Section 2.3 shall have been satisfied.


 


(f)            Additional
Conditions to Swingline Loans.  If a
Swingline Loan is requested, all conditions set forth in Section 2.4 shall
have been satisfied.


 


Each request for an Extension of Credit and each acceptance by the
Borrower of any such Extension of Credit shall be deemed to constitute
representations and warranties by the Credit Parties as of the date of such
Extension of Credit that the conditions set forth above in paragraphs (a) through
(f), as applicable, have been satisfied.


 


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ARTICLE V


 


AFFIRMATIVE COVENANTS


 


Each of the Credit Parties hereby covenants and agrees that on the
Closing Date, and thereafter (a) for
so long as this Agreement is in effect, (b) until
the Commitments have terminated, and (c) until
no Note remains outstanding and unpaid and the Credit Party Obligations and all
other amounts owing to the Administrative Agent or any Lender hereunder are
paid in full, such Credit Party shall, and shall cause each of their
Subsidiaries (other than in the case of Sections 5.1 or 5.2 hereof), to:


 


Section 5.1            Financial
Statements.


 


Furnish to the Administrative Agent and each of the Lenders:


 


(a)           Annual
Financial Statements.  As soon as
available and in any event no later than the earlier of (i) to the extent
applicable, the date the Borrower is required by the SEC to deliver its Form 10-K
for each fiscal year of the Borrower and (ii) ninety (90) days after the
end of each fiscal year of the Borrower, a copy of the Consolidated  balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such fiscal year and the related Consolidated
statements of operations and changes in stockholders’ equity and of cash flows
of the Borrower and its Consolidated Subsidiaries for such year, which shall be
audited by a firm of independent certified public accountants of nationally
recognized standing reasonably acceptable to the Administrative Agent
(including Moss Adams LLP), setting forth in each case in comparative form the
figures for the previous year, reported on without a “going concern” or like
qualification or exception, or qualification indicating that the scope of the
audit was inadequate to permit such independent certified public accountants to
certify such financial statements without such qualification;


 


(b)           Quarterly
Financial Statements.  As soon as
available and in any event no later than the earlier of (i) to the extent
applicable, the date the Borrower is required by the SEC to deliver its Form 10-Q
for any fiscal quarter of the Borrower and (ii) forty-five (45) days after
the end of each fiscal quarter of the Borrower, a copy of the Consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries as at the end
of such period and related Consolidated statements of operations for the
Borrower and its Consolidated Subsidiaries for such quarterly period; and


 


(c)           Annual Income
Statement and Cash Flow Projections. 
As soon as available, but in any event within sixty (60) days after  the end of each fiscal year, a copy of the detailed annual
income statement and cash flow projections of the Borrower and its Subsidiaries
for the next four fiscal quarter period prepared on a quarterly basis, in form
and detail reasonably acceptable to the Administrative Agent and the Lenders,
together with a summary of the material assumptions made in the preparation of
such annual budget or plan;


 


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all
such financial statements to be complete and correct in all material respects
(subject, in the case of interim statements, to normal recurring year-end audit
adjustments) and to be prepared in reasonable detail and, in the case of the
annual, quarterly financial statements provided in accordance with
subsections (a) and (b) and above, in accordance with GAAP
applied consistently throughout the periods reflected therein and further
accompanied by a description of, and an estimation of the effect on the
financial statements on account of, a change, if any, in the application of
accounting principles as provided in Section 1.3.


 


Notwithstanding
the foregoing, financial statements and reports required to be delivered
pursuant to the foregoing provisions of this Section may be delivered
electronically and if so, shall be deemed to have been delivered on the date on
which the Administrative Agent receives such reports from the Borrower through
electronic mail; provided that, upon the Administrative Agent’s request,
the Borrower shall provide paper copies of any documents required hereby to the
Administrative Agent.


 


Section 5.2            Certificates;
Other Information.


 


Furnish to the Administrative Agent and each of the Lenders:


 


(a)           [Reserved].


 


(b)           Officer’s
Certificate. Concurrently with the delivery of the financial statements
referred to in Sections 5.1(a) and 5.1(b) above, a certificate of a
Responsible Officer substantially in the form of Exhibit 5.2(b) stating
that (i) (A) such financial statements present fairly the financial
position of the Borrower and its Subsidiaries for the periods indicated in
conformity with GAAP applied on a consistent basis, (B) each of the Credit
Parties during such period observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement to be
observed, performed or satisfied by it, and (C) such Responsible Officer
has obtained no knowledge of any Default or Event of Default except as
specified in such certificate and such certificate shall include the
calculations in reasonable detail required to indicate compliance with
Section 5.9 as of the last day of such period.


 


(c)           Updated
Schedules.  Concurrently with or
prior to the delivery of the financial statements referred to in Sections 5.1(a) and
5.1(b) above, (i) an updated copy of Schedule 3.3 and Schedule
3.12 if the Borrower or any of its Subsidiaries has formed or acquired a
new Subsidiary since the Closing Date or since such Schedule was last updated,
as applicable, (ii) an updated copy of Schedule 3.16 if the
Borrower or any of its Subsidiaries has registered, applied for registration
of, acquired or otherwise obtained ownership of any new Intellectual Property
since the Closing Date or since Schedule 3.16 was last updated, as
applicable, (iii) an updated copy of Schedule 1 to the Disclosure
Letter if any new Material Contract has been entered into since the Closing
Date or since Schedule 1 to the Disclosure Letter was last updated, as
applicable, together with a copy of each new Material Contract, and (iv) an
updated copy of Schedule 4 to the Disclosure Letter if the Borrower or
any of its Subsidiaries has altered or acquired any insurance


 


83

















 


policies since the Closing Date or since Schedule 4 to the
Disclosure Letter was last updated.


 


(d)           Reports; SEC
Filings; Regulatory Reports; Press Releases; Etc.  Promptly upon their becoming available,
(i) copies of all reports (other than those provided pursuant to
Section 5.1 and those which are of a promotional nature) and other
financial information which the Borrower sends to its shareholders,
(ii) copies of all reports and all registration statements and
prospectuses, if any, which the Borrower may make to, or file with, the SEC (or
any successor or analogous Governmental Authority) or any securities exchange
or other private regulatory authority and (iii) all material regulatory
reports.


 


(e)           Calculations. 
Within ninety (90) days after the end of each fiscal year of the
Borrower, a certificate containing the amount of all acquisitions and all
Investments (including Permitted Acquisitions) made during the prior fiscal
year.


 


(f)            Management
Letters; Etc.  Promptly upon receipt
thereof, a copy or summary of any other report, or “management letter” or
similar report submitted by independent accountants to the Borrower or any of
its Subsidiaries in connection with any annual, interim or special audit of the
books of such Person.


 


(g)           General
Information. Promptly, such additional financial and other information as
the Administrative Agent, on behalf of any Lender, may from time to time
reasonably request.


 


Section 5.3            Payment
of Taxes and Other Obligations.


 


Pay, discharge or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, subject, where applicable, to
specified grace periods, (a) all of its taxes (Federal, state, local and
any other taxes) and (b) all of its other obligations and liabilities of
whatever nature in accordance with industry practice and (c) any
additional costs that are imposed as a result of any failure to so pay,
discharge or otherwise satisfy such taxes, obligations and liabilities, except
when the amount or validity of any such taxes, obligations and liabilities is
currently being contested in good faith by appropriate proceedings and
reserves, if applicable, in conformity with GAAP with respect thereto have been
provided on the books of the Credit Parties.


 


Section 5.4            Conduct
of Business and Maintenance of Existence.


 


Except as permitted by Section 6.4, continue to engage in business
of the same general type as now conducted by it on the Closing Date and
preserve, renew and keep in full force and effect its corporate or other
formative existence and good standing, take all reasonable action to maintain
all rights, privileges and franchises necessary or desirable in the normal
conduct of its business and to maintain its goodwill and comply with all
contractual obligations and Requirements of Law.


 


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Section 5.5            Maintenance
of Property; Insurance.


 


(a)           Keep all material
property useful and necessary in its business in good working order and
condition (ordinary wear and tear and obsolescence excepted).


 


(b)           Maintain with financially sound and reputable insurance
companies liability, casualty, property and business interruption insurance
(including, without limitation, insurance with respect to its tangible
Collateral) in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business; and furnish to the Administrative Agent, upon the request of
the Administrative Agent, full information as to the insurance carried. The
Administrative Agent shall be named (i) as
Lender’s loss payee, as its interest may appear with respect to any property
insurance, and (ii) as additional
insured, as its interest may appear, with respect to any such liability
insurance, and each provider of any such insurance shall agree, by endorsement
upon the policy or policies issued by it or by independent instruments to be
furnished to the Administrative Agent, that it will give the Administrative
Agent thirty (30) days prior written notice before any such policy or policies
shall be altered or canceled, and such policies shall provide that no act or
default of the Credit Parties or any of their Subsidiaries or any other Person
shall affect the rights of the Administrative Agent or the Lenders under such
policy or policies.


 


(c)           In case of any
material loss, damage to or destruction of the Collateral of any Credit Party
or any part thereof, such Credit Party shall promptly give written notice
thereof to the Administrative Agent generally describing the nature and extent
of such damage or destruction.  In case
of any such material loss, damage to or destruction of the Collateral of any
Credit Party or any part thereof, if required by the Administrative Agent or
the Required Lenders, such Credit Party (whether or not the insurance proceeds,
if any, received on account of such damage or destruction shall be sufficient
for that purpose), at such Credit Party’s cost and expense, will promptly
repair or replace the Collateral of such Credit Party so lost, damaged or
destroyed.


 


Section 5.6            Inspection
of Property; Books and Records; Discussions.


 


Keep proper books, records and accounts in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of
all dealings and transactions in relation to its businesses and activities; and
permit, during regular business hours and upon reasonable notice by the
Administrative Agent or any Lender, the Administrative Agent or any Lender to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired, and to discuss the business, operations, properties, financial
conditions and other conditions of the Credit Parties and their Subsidiaries
with officers and employees of the Credit Parties and their Subsidiaries and
with its independent certified public accountants.


 


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Section 5.7            Notices.


 


Give notice in writing to the Administrative Agent (which shall
promptly transmit such notice to each Lender):


 


(a)           promptly, but in
any event within three (3) Business Days after any Credit Party knows
thereof, the occurrence of any Default or Event of Default;


 


(b)           promptly, any
default or event of default under any Contractual Obligation of any Credit
Party or any of its Subsidiaries which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect or involve a monetary
claim in excess of $5,000,000;


 


(c)           promptly, any
litigation, or any investigation or proceeding known or threatened to any
Credit Party (i) affecting any
Credit Party or any of its Subsidiaries which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect or
involve a monetary claim in excess of $5,000,000 or involving injunctions or
requesting injunctive relief by or against any Credit Party or any Subsidiary
of any Credit Party, (ii) affecting
or with respect to this Agreement, any other Credit Document or any security
interest or Lien created thereunder, (iii) involving
an environmental claim or potential liability under Environmental Laws which
could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, or (iv) by
any Governmental Authority relating to the Borrower or any Subsidiary thereof
and alleging fraud, deception or willful misconduct by such Person;


 


(d)           of any labor controversy that has resulted in, or
threatens to result in, a strike or other work action against any Credit Party
which could reasonably be expected to have a Material Adverse Effect;


 


(e)           of any attachment, judgment, lien, levy or order exceeding
$5,000,000 that may be assessed against or threatened against any Credit Party
other than Permitted Liens;


 


(f)            as soon as
possible and in any event within thirty (30) days after any Credit Party
knows or has reason to know thereof: (i) the occurrence or expected
occurrence of any Reportable Event with respect to any Plan, a failure to make
any required contribution to a Plan, the creation of any Lien in favor of the
PBGC (other than a Permitted Lien) or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action by
the PBGC or any Credit Party, any Commonly Controlled Entity or any
Multiemployer Plan, with respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Plan;


 


(g)           promptly after
becoming aware of the occurrence of any Internal Control Event;


 


86

















 


(h)           as soon as
possible and in any event within ten (10) days prior to creating a
Domestic Subsidiary, notice of the creation of such Domestic Subsidiary;


 


(i)            promptly, any
notice of any material violation received by any Credit Party from any
Governmental Authority including, without limitation, any notice of material
violation of Environmental Laws; and


 


(j)            promptly, any
other development or event which could reasonably be expected to have a
Material Adverse Effect.


 


Each notice pursuant to this Section shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Credit Parties propose to take
with respect thereto.  In the case of any
notice of a Default or Event of Default, the Borrower shall specify that such
notice is a Default or Event of Default notice on the face thereof.


 


Section 5.8            Environmental
Laws.


 


(a)           Except as could
not reasonably be expected, either individually or in the aggregate, to have a
Material Adverse Effect, comply with, and ensure compliance in all material
respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws and obtain and comply with and maintain, and ensure that all
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws;


 


(b)           Except as could
not reasonably be expected, either individually or in the aggregate, to have a
Material Adverse Effect, conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required
under Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws except
to the extent that the same are being contested in good faith by appropriate
proceedings; and


 


(c)           Defend, indemnify
and hold harmless the Administrative Agent and the Lenders, and their
respective employees, agents, officers and directors and affiliates, from and
against any and all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Credit Parties or any of their Subsidiaries
or the Properties, or any orders, requirements or demands of Governmental
Authorities related thereto, including, without limitation, reasonable attorney’s
and consultant’s fees, investigation and laboratory fees, response costs, court
costs and litigation expenses, except to the extent that any of the foregoing
arise out of the gross negligence or willful misconduct of the party seeking
indemnification therefor.  The agreements
in this paragraph shall survive repayment of the Credit Party Obligations and
all other amounts payable hereunder and termination of the Commitments and the
Credit Documents.


 


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Section 5.9            Financial
Covenants.


 


Comply with the following financial covenants:


 


(a)           Consolidated
Leverage Ratio.  The Consolidated
Leverage Ratio, for the four consecutive fiscal quarter period ending as of
each fiscal quarter end, shall be less than or equal 3.25 to 1.0 at all times.


 


(b)           Fixed Charge
Coverage Ratio.  Beginning with the
quarter ended December 31, 2010, the Fixed Charge Coverage Ratio, for the
four consecutive fiscal quarter period ending as of each fiscal quarter end,
shall be greater than or equal to 1.20 to 1.0.


 


Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made in determining compliance for any
applicable period with the financial covenants set forth in this Section,
(i) after consummation of any Permitted Acquisition, (A) income
statement items and other balance sheet items (whether positive or negative)
attributable to the Target acquired in such transaction shall be included in
such calculations to the extent relating to such applicable period by adding
any cost saving synergies associated with such Permitted Acquisition in a
manner reasonably satisfactory to the Administrative Agent, subject to
adjustments mutually acceptable to the Borrower and the Required Lenders, and
(B) Indebtedness of a Target which is retired in connection with a
Permitted Acquisition shall be excluded from such calculations and deemed to
have been retired as of the first day of such applicable period and
(ii) after any disposition permitted by Section 6.4(a)(vi),
(A) income statement items, cash flow statement items and other balance
sheet items (whether positive or negative) attributable to the property or
assets disposed of shall be excluded in such calculations to the extent
relating to such applicable period, subject to adjustments mutually acceptable
to the Borrower and the Administrative Agent (after consultation with the
Lenders) and (B) Indebtedness that is repaid with the proceeds of such
disposition shall be excluded from such calculations and deemed to have been
repaid as of the first day of such applicable period.


 


Section 5.10         Additional
Guarantors.


 


The Credit Parties will cause each of their Domestic Subsidiaries,
whether newly formed, after acquired or otherwise existing to promptly (and in
any event within thirty (30) days after such Domestic Subsidiary is formed or
acquired (or such longer period of time as agreed to by the Administrative
Agent in its reasonable discretion)) become a Guarantor hereunder by way of
execution of a Joinder Agreement.  In
connection therewith, the Credit Parties shall give notice to the
Administrative Agent not less than ten (10) days prior to creating a
Domestic Subsidiary (or such shorter period of time as agreed to by the
Administrative Agent in its reasonable discretion), or acquiring the Equity
Interest of any other Person.  The Credit
Party Obligations shall be secured by, among other things, a first priority
perfected security interest in the Collateral of such new Guarantor and a
pledge of 100% of the Equity Interest of such new Guarantor and its Domestic
Subsidiaries and 65% (or such higher percentage that would not result in
material adverse tax consequences for such new Guarantor) of the voting Equity
Interest and 100% of the non-voting Equity Interest of its first-tier Foreign
Subsidiaries.  In connection


 


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with the foregoing, the Credit Parties shall deliver to the
Administrative Agent, with respect to each new Guarantor to the extent
applicable, substantially the same documentation required pursuant to Sections
4.1(b) — (f), (j) and 5.12
and such other documents or agreements as the Administrative Agent may
reasonably request.


 


Section 5.11         Compliance
with Law.


 


(a)           Comply with all
Requirements of Law and orders (including Environmental Laws), and all
applicable restrictions imposed by all Governmental Authorities, applicable to
it and the Collateral if noncompliance with any such Requirements of Law, order
or restriction could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.


 


(b)           Comply in all
material respects with all Contractual Obligations.


 


Section 5.12         Pledged
Assets.


 


(a)           Each Credit Party will cause 100% of the Equity Interest
in each of its direct or indirect Domestic Subsidiaries (unless such Domestic
Subsidiary is owned by a Foreign Subsidiary) and 65% (to the extent the pledge
of a greater percentage would be unlawful or would cause any materially adverse
tax consequences to the Borrower or any Guarantor) of the voting Equity
Interest and 100% of the non-voting Equity Interest of its first-tier Foreign
Subsidiaries, in each case to the extent owned by such Credit Party, to be
subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent pursuant to the terms and conditions of the Security
Documents or such other security documents as the Administrative Agent shall
reasonably request.


 


(b)           Subject to the terms of subsection (c) below, each
Credit Party will cause its real property located in the United States acquired
after the Closing Date and all tangible and intangible personal property now
owned or hereafter acquired to be subject at all times to a first priority,
perfected Lien (subject in each case to Permitted Liens) in favor of the
Administrative Agent pursuant to the terms and conditions of the Security
Documents or such other security documents as the Administrative Agent shall
reasonably request.  Each Credit Party
shall, and shall cause each of its Subsidiaries to, adhere to the covenants set
forth in the Security Documents.


 


(c)           To the extent otherwise permitted hereunder, if any Credit
Party intends to acquire a fee ownership interest in any real property (“Real
Estate”) after the Closing Date and such Real Estate has a fair market
value in excess of $5,000,000, it shall provide to the Administrative Agent
promptly (i) such security
documentation as the Administrative Agent may request to cause such Real Estate
to be subject at all times to a first priority, perfected Lien (subject in each
case to Permitted Liens) in favor of the Administrative Agent and (ii) such other documentation as the
Administrative agent may reasonably request in connection with the foregoing,
including, without limitation, title, insurance policies, surveys,
environmental reports and opinions of counsel, all in form and substance
reasonably satisfactory to the Administrative Agent.


 


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(d)           Each Credit Party shall timely and fully pay and perform
its obligations under all leases and other agreements with respect to each
leased location or public warehouse where any Collateral is or may be located.


 


Section 5.13         Covenants
Regarding Patents, Trademarks and Copyrights.


 


(a)           Notify the
Administrative Agent promptly if it knows that any material application,
letters patent or registration relating to any material Patent, Patent License,
Trademark or Trademark License of the Credit Parties or any of their
Subsidiaries may become abandoned, or of any adverse determination or
development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in the United States Patent and
Trademark Office or any court) regarding any Credit Party’s or any of its
Subsidiary’s ownership of any material Patent or Trademark, its right to patent
or register the same, or to enforce, keep and maintain the same, or its rights
under any material Patent License or Trademark License.


 


(b)           Notify the
Administrative Agent promptly after it knows of any adverse determination or
development (including, without limitation, the institution of, or any such
determination or development in, any proceeding in any court) regarding any
material Copyright or Copyright License of the Credit Parties or any of their
Subsidiaries, whether (i) such material Copyright or Copyright License may
become invalid or unenforceable prior to its expiration or termination, or
(ii) any Credit Party’s or any of its Subsidiary’s ownership of such
material Copyright, its right to register the same or to enforce, keep and
maintain the same, or its rights under such material Copyright License, may
become affected.


 


(c)           (i)            Promptly
notify the Administrative Agent of any filing by any Credit Party or any of its
Subsidiaries, either itself or through any agent, employee, licensee or
designee (but in no event later than the fifteenth day following such filing),
of any application for registration by any Credit Party of any Intellectual
Property with the United States Copyright Office or United States Patent and
Trademark Office or any similar office or agency in any other country or any
political subdivision thereof.


 


(ii)           In accordance
with Section 5.2, provide the Administrative Agent and its counsel a
complete and correct list of all Intellectual Property owned by or licensed to
the Credit Parties or any of their Subsidiaries that have not been set forth as
annexes of such documents and instruments showing all filings and recordings
for the protection of the security interest of the Administrative Agent therein
pursuant to the agreements of the United States Patent and Trademark Office or
the United States Copyright Office.


 


(iii)          Upon request of
the Administrative Agent, execute and deliver any and all agreements,
instruments, documents, and papers as the Administrative Agent may reasonably
request to evidence the Administrative Agent’s security interest in the
Intellectual Property and the general intangibles referred to in


 


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clauses (i) and (ii), including, without limitation, the goodwill
of the Credit Parties and their Subsidiaries relating thereto or represented
thereby (or such other Intellectual Property or the general intangibles
relating thereto or represented thereby as the Administrative Agent may
reasonably request).


 


(d)           Take all
necessary actions, including, without limitation, in any proceeding before the
United States Patent and Trademark Office or the United States Copyright
Office, to maintain each item of material Intellectual Property of the Credit
Parties and their Subsidiaries, including, without limitation, payment of
maintenance fees, filing of applications for renewal, affidavits of use,
affidavits of incontestability and opposition, interference and cancellation
proceedings.


 


(e)           In the event that
any Credit Party becomes aware that any material Intellectual Property owned by
any Credit Party is infringed, misappropriated or diluted by a third party in
any material respect, notify the Administrative Agent promptly after it learns
thereof and, unless the Credit Parties shall reasonably determine that such
Intellectual Property is not material to the business of the Credit Parties and
their Subsidiaries taken as a whole, promptly use reasonable efforts to pursue
claims for infringement, misappropriation or dilution and to recover damages
for such infringement, misappropriation or dilution as reasonably determined by
the Credit Parties to be appropriate, and take such other actions as the Credit
Parties shall reasonably deem appropriate under the circumstances to protect
such material Intellectual Property.


 


Section 5.14         Landlord
Waivers.


 


In
the case of any personal property Collateral located at premises leased by a
Credit Party with a value in excess of $1,000,000, the Credit Parties will
promptly provide the Administrative Agent with such estoppel letters, consents
and waivers from the landlords on such real property to the extent Borrower is
able to secure such letters, consents and waivers after using commercially
reasonable efforts (such letters, consents and waivers shall be in form and
substance satisfactory to the Administrative Agent, it being acknowledged and
agreed that any landlord waiver in the form of Exhibit 4.1(d) is
satisfactory to the Administrative Agent); provided that it is
acknowledged and agreed that to the extent such estoppel letters, consents
and/or waivers are not delivered prior to the Closing Date, the Credit Parties
will provide such estoppel letters, consents and/or waivers to the Administrative
Agent within thirty (30) days of the Closing Date (or such other time period as
agreed to by the Administrative Agent) to the extent the Borrower is able to
secure such letters, consents and waivers after using commercially reasonable
efforts.


 


Section 5.15         Federal
Assignment of Claims Act.


 


The
Borrower will execute all documents necessary to comply with the Federal
Assignment of Claims Act and comparable state law with respect to the accounts
arising from any Material Government Contract (to the extent not already
delivered to the Administrative Agent), in each case within sixty (60) days (or such extended
period of time as agreed to by the Administrative Agent) after entering into
such Material Government Contract, such documents 


 


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to
be held in escrow by the Administrative Agent in accordance with the terms
of Section 10(b) of
the Security Agreement.


 


Section 5.16         Further
Assurances.


 


(a)           Public/Private Designation.  Borrower will cooperate with the
Administrative Agent in connection with the publication certain materials
and/or information provided by or on behalf of the Borrower to the
Administrative Agent and Lenders (collectively, “Information Materials”)
pursuant to this Article V and will designate Information Materials (i) that are either available to the public
or not material with respect to the Borrower and its  Subsidiaries or any of their respective securities for
purposes of United States federal and state securities laws, as “Public
Information” and (ii) that are
not Public Information as “Private Information”.


 


(b)           Intellectual Property.  Within ninety (90) days after the Closing
Date (or such extended period of time as agreed to by the Administrative Agent)
the Administrative Agent shall have received evidence that (i) all chain-of-title issues with respect
to the Intellectual Property of the Credit Parties have been resolved to the
satisfaction of the Administrative Agent, 
(ii) all third party security
interests with respect to the Intellectual Property of the Credit Parties have
been released of record with the United States Patent and Trademark Office and
the United States Copyright Office; provided that any Indebtedness
associated with such security interests shall have been paid in full and
terminated on or prior to the Closing Date and (iii) the
patent/trademark/copyright filings requested by the Administrative Agent in
order to perfect the Administrative Agent’s security interest in the
Intellectual Property have been properly filed in the appropriate filing
offices; provided, however, that with respect to clauses (i) and (ii) above,
the Administrative Agent shall be able to waive such requirements to the extent
the Administrative Agent shall have received satisfactory evidence from the
Credit Parties that the Credit Parties have used commercially reasonable
efforts to resolve such chain-of-title issues or obtain such releases and have
been unsuccessful.


 


(c)           Other Further
Assurances. Upon the reasonable request of the Administrative Agent,
promptly perform or cause to be performed any and all acts and execute or cause
to be executed any and all documents for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are necessary or advisable
to maintain in favor of the Administrative Agent, for the benefit of the
Secured Parties, Liens on the Collateral that are duly perfected in accordance
with the requirements of, or the obligations of the Credit Parties under, the
Credit Documents and all applicable Requirements of Law.


 


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ARTICLE VI


 


NEGATIVE COVENANTS


 


Each of the Credit Parties hereby covenants and agrees that on the
Closing Date, and thereafter (a) for
so long as this Agreement is in effect, (b) until
the Commitments have terminated, (c) until
no Note remains outstanding and unpaid and the Credit Party Obligations and (d) until all other amounts owing to the
Administrative Agent or any Lender hereunder are paid in full:


 


Section 6.1            Indebtedness.


 


No Credit Party will, nor will it permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Indebtedness, except:


 


(a)           Indebtedness
arising or existing under this Agreement and the other Credit Documents;


 


(b)           Indebtedness of
the Credit Parties and their Subsidiaries existing as of the Closing Date as
referenced in the financial statements referenced in Section 3.1 (and set
out more specifically in Schedule 5 to the Disclosure Letter) and
any renewals, refinancings or extensions thereof in a principal amount not in
excess of that outstanding as of the date of such renewal, refinancing or
extension;


 


(c)           Indebtedness of
the Credit Parties and their Subsidiaries incurred after the Closing Date
consisting of Capital Leases or Indebtedness incurred to provide all or a
portion of the purchase price or cost of construction of an asset; provided
that (i) such Indebtedness when incurred shall not exceed the purchase
price or cost of construction of such asset; (ii) no such Indebtedness
shall be renewed, refinanced or extended for a principal amount in excess of
the principal balance outstanding thereon at the time of such renewal,
refinancing or extension; and (iii) the total amount of all such
Indebtedness shall not exceed $20,000,000 at any time outstanding;


 


(d)           Unsecured
intercompany Indebtedness among the Credit Parties;


 


(e)           Indebtedness and
obligations owing under Secured Hedging Agreements and other Hedging Agreements
entered into in order to manage existing or anticipated interest rate, exchange
rate or commodity price risks and not for speculative purposes;


 


(f)            Indebtedness of
a Person existing at the time such Person becomes a Subsidiary of a Credit
Party in a transaction permitted hereunder in an aggregate principal amount not
to exceed $50,000,000 for all such Persons during the term of this Agreement; provided
that any such Indebtedness was not created in anticipation of or in connection
with the transaction or series of transactions pursuant to which such Person became
a Subsidiary of a Credit Party;


 


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(g)           Guaranty
Obligations (a) in respect of Indebtedness of any Subsidiary to the extent
such Indebtedness is permitted to exist or be incurred pursuant to this Section,
and (b) to the extent such Guaranty Obligations guaranty the performance
of Subsidiaries under real property lease agreements or product sales and
service agreements and are entered into in the ordinary course of business;


 


(h)           so long as no
Default or Event of Default has occurred and is continuing or would otherwise
arise as a result of the incurrence of such Indebtedness, subordinated or
unsecured high yield or convertible debt of the Borrower and refinancings,
exchanges, extensions and renewals thereof; provided that (i) such Indebtedness shall have a maturity
date at least 365 days after the Maturity Date, (ii) the terms and conditions of such Indebtedness shall be
consistent with market terms for similar issuances at such time, (iii) such Indebtedness shall otherwise be
on terms and conditions reasonably acceptable to the Administrative Agent, and (iv) after giving effect to any such
incurrence, the Consolidated Leverage Ratio, on a pro forma basis, shall be
less than or equal to 2.75:1.0;


 


(i)            (A) Foreign
Subsidiaries organized under the laws of the United Kingdom may incur cash
borrowings (excluding Foreign Mortgage Indebtedness) in an aggregate amount not
to exceed $20,000,000, (B) Foreign
Subsidiaries not organized under the laws of the United Kingdom may incur cash
borrowings (excluding Foreign Mortgage Indebtedness and non-cash Indebtedness
under foreign lines of credit) in an aggregate amount not to exceed $15,000,000
and (C) Foreign Subsidiaries may
collectively incur Indebtedness under letters of credit in an aggregate amount
not to exceed $50,000,000;


 


(j)            letters of
credit (to the extent fully cash collateralized) in an aggregate amount not to
exceed $50,000,000 at any time outstanding;


 


(k)           other unsecured
Indebtedness of the Credit Parties which does not exceed $10,000,000 in the
aggregate at any time outstanding; and


 


(l)            Obligations in
respect of export/import bank financing arrangements of the Borrower with a
lender that is reasonably acceptable to the Administrative Agent, subject to execution
and delivery by all relevant parties of documentation (such loan agreements,
security agreements and intercreditor agreements) that is reasonably
satisfactory to Administrative Agent, so long as the principal amount of
Indebtedness and other obligations secured thereby does not exceed $10,000,000
in the aggregate.


 


Section 6.2            Liens.


 


The
Credit Parties will not, nor will they permit any Subsidiary to, contract,
create, incur, assume or permit to exist any Lien with respect to any of their
respective property or assets of any kind (whether real or personal, tangible
or intangible), whether now owned or hereafter acquired, except for Permitted
Liens.  Notwithstanding the foregoing, if
a Credit Party shall grant a Lien on any of its assets in violation of this
Section, then it shall be deemed to have simultaneously granted an equal and
ratable Lien on any such assets in favor of the


 


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Administrative
Agent for the ratable benefit of the Lenders and the Hedging Agreement
Providers, to the extent such Lien has not already been granted to the
Administrative Agent.


 


Section 6.3            Nature
of Business.


 


No Credit Party will, nor will it permit any Subsidiary to, alter the
character of its business in any material respect from that conducted as of the
Closing Date.


 


Section 6.4            Consolidation,
Merger, Sale or Purchase of Assets, etc.


 


The Credit Parties will not, nor will they permit any Subsidiary to,


 


(a)           dissolve,
liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose
of its property or assets or agree to do so at a future time, except the
following, without duplication, shall be expressly permitted:


 


(i)            (A) the
sale, transfer, lease or other disposition of inventory and materials in the ordinary
course of business and (B) the conversion of cash into Cash Equivalents
and Cash Equivalents into cash;


 


(ii)           Dispositions
resulting in Extraordinary Receipts for which such Credit Party or such
Subsidiary has received any cash insurance proceeds or condemnation or
expropriation award with respect to such property or assets;


 


(iii)          the sale, lease,
transfer or other disposition of machinery, parts and equipment no longer used
or useful in the conduct of the business of the Credit Parties or any of their
Subsidiaries;


 


(iv)          (A) the sale, lease or transfer of property
or assets from one Credit Party to another Credit Party, (B) the sale, lease or transfer of property
or assets from a Subsidiary to a Credit Party, (C) the
sale, lease or transfer of property or assets from a Subsidiary that is not a
Credit Party to another Subsidiary that is not a Credit Party, (D) the
dissolution of any Credit Party to the extent any and all assets of such Credit
Party at the time of such dissolution are distributed to another Credit Party, (E) the
dissolution of a Subsidiary that is not a Credit Party to the extent any and
all assets of such Subsidiary at the time of such dissolution are distributed
to another Subsidiary;


 


(v)           the termination
of any Hedging Agreement;


 


(vi)          the sale, lease
or transfer of property or assets not to exceed $10,000,000 in the aggregate in
any fiscal year, excluding transfers made pursuant to Section 6.4(a)(iv);


 


provided that (A) with respect to clauses (i)(A), (ii),
(iii) and (vi) above, at least 75% of the consideration received
therefor by the Credit Parties or any such Subsidiary shall be


 


95

















 


in the form of cash or Cash Equivalents, (B) after giving effect
to any disposition pursuant to clause (vi) above, the Credit Parties shall
be in compliance on a Pro Forma Basis with the financial covenants set forth in
Section 5.9 hereof, recalculated for the most recently ended month for
which information is available, and (C) with respect to clauses (iv), (v) and
(vi) above, no Default or Event of Default shall exist or shall result
therefrom; provided, further, that with respect to sales of
assets permitted hereunder only, the Administrative Agent shall be entitled,
without the consent of any Lender, to release its Liens relating to the
particular assets sold; or


 


(b)           (i) purchase,
lease or otherwise acquire (in a single transaction or a series of related
transactions) the property or assets of any Person, other than (A) Permitted
Acquisitions and Permitted Investments and (B) except as otherwise limited
or prohibited herein, purchases or other acquisitions of inventory, materials,
property and equipment in the ordinary course of business, or (ii) enter
into any transaction of merger or consolidation, except for (A) 
Investments or acquisitions permitted pursuant to Section 6.5 so long as
the Credit Party subject to such merger or consolidation is the surviving
entity, (B) (y) the merger or consolidation of a Subsidiary that is
not a Credit Party with and into a Credit Party; provided that such
Credit Party will be the surviving entity and (z) the merger or
consolidation of a Credit Party with and into another Credit Party; provided
that if the Borrower is a party thereto, the Borrower will be the surviving
corporation, and (C) the merger or consolidation of a Subsidiary that is
not a Credit Party with and into another Subsidiary that is not a Credit Party.


 


For avoidance of doubt, an issuance by the Borrower of its Equity
Interests shall not be prohibited by this Section 6.4.


 


Section 6.5            Advances, Investments
and Loans.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
make any Investment except for Permitted Investments.


 


Section 6.6            Transactions
with Affiliates.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
enter into any transaction or series of transactions, whether or not in the
ordinary course of business, with any officer, director, shareholder or
Affiliate other than on terms and conditions substantially as favorable as
would be obtainable in a comparable arm’s-length transaction with a Person
other than an officer, director, shareholder or Affiliate.


 


Section 6.7            Ownership
of Subsidiaries; Restrictions.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
create, form or acquire any Subsidiaries, except for (i) Domestic Subsidiaries that are joined as Additional Credit
Parties as required by the terms hereof and (ii) Foreign
Subsidiaries.  The Credit Parties will
not sell, transfer, pledge or otherwise dispose of any Equity Interest or other
equity interests in any of their Subsidiaries, nor will they permit any of
their Subsidiaries to issue, sell, transfer, pledge or


 


96

















 


otherwise dispose of any of their Equity Interest or other equity
interests, except in a transaction permitted by Section 6.4.


 


Section 6.8            Corporate
Changes; Material Contracts.


 


No Credit Party will, nor will it permit any of its Subsidiaries to, (a) change
its fiscal year, (b) amend, modify or change its articles of
incorporation, certificate of designation (or corporate charter or other
similar organizational document) operating agreement or bylaws (or other
similar document) in any respect materially adverse to the interests of the
Lenders without the prior written consent of the Required Lenders, which
consent shall not be unreasonably withheld (c) amend, modify, cancel or
terminate or fail to renew or extend or permit the amendment, modification,
cancellation or termination of any of its Material Contracts in any respect
adverse to the interests of the Lenders without the prior written consent of
the Required Lenders, except in the normal course of business, (d) change
its state of incorporation, organization or formation without the consent of
the Administrative Agent or have more than one state of incorporation,
organization or formation or (e) change its accounting method (except in
accordance with GAAP) in any manner adverse to the interests of the Lenders
without the prior written consent of the Required Lenders, which consent shall
not be unreasonably withheld.


 


Section 6.9            Limitation
on Restricted Actions.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any such Person to
(a) pay dividends or make any other distributions to any Credit Party on
its Equity Interest or with respect to any other interest or participation in,
or measured by, its profits, (b) pay any Indebtedness or other obligation
owed to any Credit Party, (c) make loans or advances to any Credit Party,
(d) sell, lease or transfer any of its properties or assets to any Credit
Party, or (e) act as a Guarantor and pledge its assets pursuant to the
Credit Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (a)-(d) above) for such encumbrances or restrictions existing
under or by reason of (i) this Agreement and the other Credit Documents,
(ii) applicable law,  (iii) any document or instrument governing Indebtedness
incurred pursuant to Section 6.1(c); provided that any such
restriction contained therein relates only to the asset or assets constructed
or acquired in connection therewith, or (iv) any Permitted Lien or any
document or instrument governing any Permitted Lien; provided that any
such restriction contained therein relates only to the asset or assets subject
to such Permitted Lien.


 


Section 6.10         Restricted
Payments.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, declare, order, make or set apart any sum for or pay
any Restricted Payment, except (a) to
make dividends payable solely in the same class of Equity Interest of such
Person, (b) to make dividends or
other distributions payable to the Credit Parties (directly or indirectly
through its Subsidiaries), (c) so
long as (i) no Default or Event of
Default shall have occurred and be continuing or would result therefrom and (ii) the Borrower shall be in pro forma
compliance with the financial covenants set forth in Sections 5.9 after giving
effect to any such payment, (A) the


 


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Credit Parties may purchase shares (or the equivalent, or rights to
acquire shares or the equivalent) held by directors, officers and employees of
such Credit Party, (B) the Credit
Parties may make regularly scheduled interest payments with respect to
Subordinated Debt and (C) the
Borrower may repurchase shares of its Equity Interests under the Borrower’s
stock purchase program in an aggregate amount not to exceed $50,000,000 during
the term of this Agreement as measured by the purchase price paid by the
Borrower for such Equity Interests; provided, however, that after giving
effect to any such repurchase (y) there shall be at least $25,000,000 of
Revolver Availability and (z) the Credit Parties shall demonstrate to the
reasonable satisfaction of the Administrative Agent that the Consolidated
Leverage Ratio is less than or equal to 2.00 to 1.0 on a Pro Forma Basis.


 


Section 6.11         Amendment
of Subordinated Debt.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
without the prior written consent of the Required Lenders, amend, modify, waive
or extend or permit the amendment, modification, waiver or extension of any
term of any document governing or relating to any Subordinated Debt in a manner
that is materially adverse to the interests of the Lenders.


 


Section 6.12         Sale
Leasebacks.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
directly or indirectly, become or remain liable as lessee or as guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (a) which any Credit Party or any Subsidiary has sold
or transferred or is to sell or transfer to a Person which is not a Credit
Party or a Subsidiary or (b) which any Credit Party or any Subsidiary
intends to use for substantially the same purpose as any other property which
has been sold or is to be sold or transferred by a Credit Party or a Subsidiary
to another Person which is not a Credit Party or a Subsidiary in connection
with such lease.


 


Section 6.13         No
Further Negative Pledges.


 


The Credit Parties will not, nor will they permit any Subsidiary to,
enter into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon any of their properties
or assets, whether now owned or hereafter acquired, or requiring the grant of
any security for such obligation if security is given for some other
obligation, except (a) pursuant to this Agreement and the other Credit
Documents, (b) pursuant to any document or instrument governing
Indebtedness incurred pursuant to Section 6.1(c); provided that any
such restriction contained therein relates only to the asset or assets constructed
or acquired in connection therewith, and (c) in connection with any
Permitted Lien or any document or instrument governing any Permitted Lien; provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien.


 


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Section 6.14         Bank
Accounts.


 


Set forth on Schedule 6 to the Disclosure Letter is a
complete and accurate list of all checking, savings or other accounts
(including securities accounts) of the Credit Parties at any bank or other
financial institution, or any other account where money is or may be deposited
or maintained with any Person as of the Closing Date.  Upon the Administrative Agent’s request, the
Credit Parties agree to execute and delivery any deposit account control
agreements or securities account control agreements as the Administrative
Agent, in its sole discretion, may deem reasonably necessary; provided that in
no event shall deposit account control agreements or securities account control
agreement be required for  (a) deposit accounts established solely
as payroll and other zero balance accounts and (b) deposit accounts, so
long the balance in any such account does not exceed $100,000 and the aggregate
balance in all such accounts does not exceed $500,000.


 


ARTICLE VII


 


EVENTS OF DEFAULT


 


Section 7.1            Events
of Default.


 


An Event of Default shall exist upon the occurrence of any of the
following specified events (each an “Event of Default”):


 


(a)           Payment.  (i) The Borrower shall fail to pay any
principal on any Loan or Note when due (whether at maturity, by reason of
acceleration or otherwise) in accordance with the terms hereof or thereof; or (ii) the
Borrower shall fail to reimburse the Issuing Lender for any LOC Obligations
when due (whether at maturity, by reason of acceleration or otherwise)  in accordance with the terms hereof; or (iii) the
Borrower shall fail to pay any interest on any Loan or any fee or other amount
payable hereunder when due (whether at maturity, by reason of acceleration or
otherwise) in accordance with the terms hereof and such failure shall continue
unremedied for three (3) days; or (iv) or any Guarantor shall fail to
pay on the Guaranty in respect of any of the foregoing or in respect of any
other Guaranty Obligations hereunder (after giving effect to the grace period
in clause (iii)); or


 


(b)           Misrepresentation.  Any representation or warranty made or deemed
made herein, in the Security Documents or in any of the other Credit Documents
or which is contained in any certificate, document or financial or other
statement furnished at any time under or in connection with this Agreement
shall prove to have been incorrect, false or misleading in any material respect
on or as of the date made or deemed made; or


 


(c)           Covenant
Default.  (i) Any Credit Party
shall fail to perform, comply with or observe any term, covenant or agreement
applicable to it contained in Sections 5.1, 5.2, 5.4, 5.7, 5.9, 5.11, 5.13,  or Article VI hereof (other than as set forth in Section 7.1(c)(ii));
(ii) any Credit Party shall fail to perform, comply with or observe any
term, covenant or agreement applicable to it contained in Sections 5.1 or 5.2
(to the extent


 


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curable) and such breach or failure to comply is not cured within three
(3) Business Days of its occurrence; 
or (iii) any Credit Party shall fail to comply with any other
covenant contained in this Agreement or the other Credit Documents or any other
agreement, document or instrument among any Credit Party, the Administrative
Agent and the Lenders or executed by any Credit Party in favor of the
Administrative Agent or the Lenders (other than as described in Sections 7.1(a) or
7.1(c)(i) above), and such breach or failure to comply is not cured within
thirty (30) days of its occurrence; or


 


(d)           Indebtedness
Cross-Default.  (i) Any Credit Party shall default in any
payment of principal of or interest on any Indebtedness (other than the Loans,
Reimbursement Obligations and the Guaranty) in a principal amount outstanding
of at least $5,000,000  for the
Borrower and any of its Subsidiaries in the aggregate beyond any applicable
grace period (not to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness was created; or (ii) any Credit Party shall default in the
observance or performance of any other agreement or condition relating to any
Indebtedness (other than the Loans, Reimbursement Obligations and the Guaranty)
in a principal amount outstanding of at least $5,000,000  in
the aggregate for the Credit Parties and their Subsidiaries or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (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 become
due prior to its stated maturity or to be repurchased, prepaid, deferred or
redeemed (automatically or otherwise); or (iii) any
Credit Party shall breach or default any payment obligation under any Secured
Hedging Agreement; or


 


(e)           Other Cross-Defaults.  The occurrence of any of the following
events: (i) the Credit Parties or
any of their Subsidiaries shall default in the payment when due under any
Material Contract, (ii) the Credit
Parties or any of their Subsidiaries shall default in the performance or
observance, of any obligation or condition of any Material Contract and such
failure to perform or observe such other obligation or condition continues
unremedied for a period of thirty (30) days after notice of the occurrence
of such default unless, but only as long as, the existence of any such default
is being contested by the Credit Parties in good faith by appropriate
proceedings and adequate reserves in respect thereof have been established on
the books of the Credit Parties to the extent required by GAAP, (iii) the Credit Parties or any of their
Subsidiaries shall be debarred or suspended from contracting with any
Governmental Authority, (iv) a
notice of debarment or suspension shall have been issued to or received by the
Borrower or any Subsidiary thereof, or (v) the
actual termination of a Material Government Contract or other Material Contract
due to alleged fraud, deception or willful misconduct; or


 


(f)            Bankruptcy
Default.  (i) A Credit Party or any
of its Subsidiaries shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have
an order for relief entered with respect to it, or


 


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seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or a Credit Party or any of its
Subsidiaries shall make a general assignment for the benefit of its creditors;
or (ii) there shall be commenced against a Credit Party or any of its
Subsidiaries any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or
any such adjudication or appointment or (B) remains undismissed, undischarged
or unbonded for a period of sixty (60) days; or  (iii) there shall be commenced against a Credit Party or any
of its Subsidiaries any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against all or
any substantial part of their assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, or stayed or
bonded pending appeal within sixty (60) days from the entry thereof; or
(iv) a Credit Party or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above; or  (v) a Credit Party or any of its Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing their inability
to, pay its debts as they become due; or


 


(g)           Judgment Default. 
One or more judgments or decrees shall be entered against a Credit Party
or any of its Subsidiaries involving in the aggregate a liability (to the
extent not covered by insurance) of $5,000,000 or more and all such judgments
or decrees shall not have been paid and satisfied, vacated, discharged, stayed
or bonded pending appeal within ten (10) Business Days from the entry
thereof or any injunction, temporary restraining order or similar decree shall
be issued against a Credit Party or any of its Subsidiaries that, individually
or in the aggregate, could result in a Material Adverse Effect; or


 


(h)           ERISA Default. 
(i) Any Person shall engage in any “prohibited transaction” (as
defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any material “accumulated funding deficiency” (as
defined in Section 302 of ERISA), whether or not waived, shall exist with
respect to any Plan or any Lien in favor of the PBGC or a Plan (other than a
Permitted Lien) shall arise on the assets of the Credit Parties or any Commonly
Controlled Entity,  (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA,  (v) a Credit Party, any of its Subsidiaries or any
Commonly Controlled Entity shall incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, any Multiemployer Plan
or  (vi) any
other similar event or condition shall occur or exist with respect to a Plan;
or


 


(i)            Change of Control. 
There shall occur a Change of Control; or


 


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(j)            Invalidity of Guaranty.  At any time after the execution and delivery
thereof, the Guaranty, for any reason other than the satisfaction in full of
all Credit Party Obligations, shall cease to be in full force and effect (other
than in accordance with its terms) or shall be declared to be null and void, or
any Credit Party shall contest the validity, enforceability, perfection or
priority of the Guaranty, any Credit Document, or any Lien granted thereunder
in writing or deny in writing that it has any further liability, including with
respect to future advances by the Lenders, under any Credit Document to which
it is a party; or


 


(k)           Invalidity of Credit Documents.  Any other Credit Document shall fail to be in
full force and effect or to give the Administrative Agent and/or the Lenders
the security interests, liens, rights, powers, priority and privileges
purported to be created thereby (except as such documents may be terminated or
no longer in force and effect in accordance with the terms thereof, other than
those indemnities and provisions which by their terms shall survive) or any
Lien granted pursuant to any Credit Document shall fail, in violation of the
terms of this Agreement, to be a first priority, perfected Lien on a material
portion of the Collateral; or


 


(l)            Subordinated Debt. 
Any default (which is not waived or cured within the applicable period
of grace) or event of default shall occur under any Subordinated Debt or the
subordination provisions contained therein shall cease to be in full force and
effect or shall cease to give the Lenders the rights, powers and privileges
purported to be created thereby; or


 


(m)          Uninsured Loss. 
Any uninsured damage to or loss, theft or destruction of any assets of
the Credit Parties or any of their Subsidiaries shall occur that is in excess
of $5,000,000.


 


Section 7.2            Acceleration;
Remedies.


 


Upon
the occurrence and during the continuance of an Event of Default, then, and in
any such event, (a) if such event is a Bankruptcy Event of Default,
automatically the Commitments shall immediately terminate and the Loans (with
accrued interest thereon), and all other amounts under the Credit Documents
(including without limitation the maximum amount of all contingent liabilities
under Letters of Credit) shall immediately become due and payable, and
(b) if such event is any other Event of Default, any or all of the
following actions may be taken: 
(i) with the written consent of the Required Lenders, the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, declare the Commitments to be terminated
forthwith, whereupon the Commitments shall immediately terminate; (ii) the
Administrative Agent may, or upon the written request of the Required Lenders,
the Administrative Agent shall, declare the Loans (with accrued interest
thereon) and all other amounts owing under this Agreement and the Notes to be
due and payable forthwith and direct the Borrower to pay to the Administrative
Agent cash collateral as security for the LOC Obligations for subsequent
drawings under then outstanding Letters of Credit an amount equal to the
maximum amount of which may be drawn under Letters of Credit then outstanding,


 


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whereupon
the same shall immediately become due and payable; and/or (iii) with the
written consent of the Required Lenders, the Administrative Agent may, or upon
the written request of the Required Lenders, the Administrative Agent shall,
exercise such other rights and remedies as provided under the Credit Documents
and under applicable law.


 


ARTICLE VIII


 


THE ADMINISTRATIVE AGENT


 


Section 8.1            Appointment
and Authority.


 


Each
of the Lenders and the Issuing Lender hereby irrevocably appoints Wells Fargo
to act on its behalf as the Administrative Agent hereunder and under the other
Credit 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 Issuing Lender,
and neither the Borrower nor any other Credit Party shall have rights as a
third party beneficiary of any of such provisions.


 


Section 8.2            Nature of
Duties.


 


Anything
herein to the contrary notwithstanding, none of the Bookrunners,  Arrangers or other agents listed on the cover
page hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Credit Documents, except in its capacity, as
applicable, as the Administrative Agent, a Lender or the Issuing Lender
hereunder.  Without limiting the
foregoing, none of the Lenders or other Persons so identified shall have or be
deemed to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.


 


The
Administrative Agent may perform any and all of its duties and exercise its
rights and powers hereunder or under any other Credit 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.


 


Notwithstanding
anything contained in this Agreement to the contrary, the Syndication Agent and
Documentation Agents are named as such for recognition purposes only and in
their capacities as such shall have no powers, duties, responsibilities or
liabilities with respect to this Agreement or the other Credit Documents or the
Transactions; it being understood and agreed that the Syndication Agent and the
Documentation Agents shall be entitled to all indemnification 


 


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and
reimbursement rights in favor of the Administrative Agent, as and to the
extent, otherwise provided for in this Agreement. Without limitation of the
foregoing, the Syndication Agent and the Documentation Agents shall not, solely
by reason of this Agreement or any other Credit Document, have any fiduciary
relationship in respect of any Lender or any other Person.


 


Section 8.3            Exculpatory
Provisions.


 


The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Credit 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 Credit 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 Credit 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 Credit Document or applicable law; and


 


(c)           shall not, except as expressly set forth herein and in the
other Credit 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.


 


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 9.1 and 7.2) or (ii) in the
absence of its own gross negligence or willful misconduct.


 


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


 


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Section 8.4            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 Issuing Lender, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the Issuing
Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender or the Issuing Lender 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.


 


Section 8.5            Notice of
Default.


 


The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received written notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a “notice of default”.  In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders.  The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders; provided,
however, that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not taken, only with the
consent or upon the authorization of the Required Lenders, or all of the
Lenders, as the case may be.


 


Section 8.6            Non-Reliance
on Administrative Agent and Other Lenders.


 


Each
Lender and the Issuing Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representation or warranty to it
and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of any Credit Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender.  Each Lender and the Issuing Lender
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 Issuing Lender also
acknowledges


 


105

















 


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 Credit Document or any related agreement or any document
furnished hereunder or thereunder.


 


Section 8.7            Indemnification.


 


The
Lenders agree to indemnify the Administrative Agent, the Issuing Lender, and
the Swingline Lender in its capacity hereunder and their Affiliates and their
respective officers, directors, agents and employees (to the extent not
reimbursed by the Borrower and without limiting the obligation of the Borrower
to do so), ratably according to their respective Commitment Percentages in
effect on the date on which indemnification is sought under this Section, from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including, without limitation, at any time
following the payment of the Credit Party Obligations) be imposed on, incurred
by or asserted against any such indemnitee in any way relating to or arising
out of any Credit Document or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by any such indemnitee under or in connection with any
of the foregoing; provided, however, that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent resulting from such indemnitee’s gross negligence or willful
misconduct, as determined by a court of competent jurisdiction.  The agreements in this Section shall survive
the termination of this Agreement and payment of the Notes, any Reimbursement
Obligation and all other amounts payable hereunder.


 


Section 8.8            Administrative
Agent in Its Individual Capacity.


 


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.


 


Section 8.9            Successor
Administrative Agent.


 


The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the Issuing Lender 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, or an Affiliate of any such bank. 
If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty (30) days
after the 


 


106

















 


retiring
Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders and the Issuing Lender, 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 Credit
Documents (except that in the case of any Collateral held by the Administrative
Agent on behalf of the Lenders or the Issuing Lender under any of the Credit
Documents, the retiring Administrative Agent shall continue to hold such
Collateral until such time as a successor Administrative Agent is appointed)
and (2) all payments, communications and determinations provided to be
made by, to or through the Administrative Agent shall instead be made by or to
each Lender and the Issuing Lender directly, until such time as the Required
Lenders appoint a successor Administrative Agent as provided for above in this
paragraph.  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 Credit Documents (if not already discharged
therefrom as provided above in this paragraph). 
The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. 
After the retiring Administrative Agent’s resignation hereunder and
under the other Credit Documents, the provisions of this Article and
Section 9.5  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 Wells Fargo Bank, as
Administrative Agent pursuant to this Section shall also constitute its
resignation as Issuing Lender and Swingline Lender.  Upon the acceptance of a successor’s
appointment as Administrative Agent hereunder, (a) such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring Issuing Lender and Swingline Lender, (b) the retiring Issuing
Lender and Swingline Lender shall be discharged from all of their respective
duties and obligations hereunder or under the other Credit Documents, and (c)
the successor Issuing Lender 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 Issuing Lender to
effectively assume the obligations of the retiring Issuing Lender with respect
to such Letters of Credit.


 


Section 8.10         Collateral and
Guaranty Matters.


 


(a)           The Lenders irrevocably authorize and
direct the Administrative Agent:


 


(i)            to release any Lien on any Collateral granted to or held
by the Administrative Agent under any Credit Document (i) upon termination
of the Revolving Commitments and payment in full of all Credit Party
Obligations (other than contingent indemnification obligations) and the
expiration or termination of all Letters of Credit, (ii) that is
transferred or to be transferred as part of or in connection with any sale or
other 


 


107

















 


disposition
permitted under Section 6.4 or (iii) subject to Section 9.1, if
approved, authorized or ratified in writing by the Required Lenders;


 


(ii)           to subordinate any Lien on any Collateral granted to or
held by the Administrative Agent under any Credit Document to the holder of any
Lien on such Collateral that is permitted by Section 6.2;


 


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


 


(iv)          as provided in Sections 4.1(d)(viii), 4.1(d)(ix) and
4.1(e), to release any Lien on any Collateral granted to or held by the
Administrative Agent with respect to any prior Indebtedness.


 


(b)           In connection with a termination or
release pursuant to this Section, the Administrative Agent shall promptly
execute and deliver to the applicable Credit Party, at the Borrower’s expense,
all documents that the applicable Credit Party shall reasonably request to
evidence such termination or release. 
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 Collateral, or to
release any Guarantor from its obligations under the Guaranty pursuant to this
Section.


 


ARTICLE IX


 


MISCELLANEOUS


 


Section 9.1            Amendments,
Waivers and Release of Collateral.


 


Neither
this Agreement nor any of the other Credit Documents, nor any terms hereof or
thereof may be amended, modified, extended, restated, replaced, or supplemented
(by amendment, waiver, consent or otherwise) except in accordance with the
provisions of this Section nor may Collateral be released except as
specifically provided herein or in the Security Documents or in accordance with
the provisions of this Section.  The Required
Lenders may or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with the
Borrower written amendments, supplements or modifications hereto and to the
other Credit Documents for the purpose of adding any provisions to this Agreement
or the other Credit Documents or changing in any manner the rights of the
Lenders or of the Borrower hereunder or thereunder or (b) waive or consent
to the departure from, on such terms and conditions as the Required Lenders may
specify in such instrument, any of the requirements of this Agreement or the
other Credit Documents or any Default or Event of Default and its consequences;
provided, however, that no such amendment, supplement,
modification, release, waiver or consent shall:


 


108

















 


(i)            reduce the amount or extend the
scheduled date of maturity of any Loan or Note or any installment thereon, or
reduce the stated rate of any interest or fee payable hereunder (except in
connection with a waiver of interest at the increased post-default rate set
forth in Section 2.8 which shall be determined by a vote of the Required
Lenders) or extend the scheduled date of any payment thereof or increase the
amount or extend the expiration date of any Lender’s Commitment, in each case
without the written consent of each Lender directly affected thereby; or


 


(ii)           amend, modify or waive any provision
of this Section or reduce the percentage specified in the definition of
Required Lenders, without the written consent of all the Lenders; or


 


(iii)          release the Borrower or all or
substantially all of the Guarantors from obligations under the Guaranty,
without the written consent of all of the Lenders and Hedging Agreement
Providers; or


 


(iv)          release all or substantially all of
the Collateral without the written consent of all of the Lenders and Hedging
Agreement Providers; or


 


(v)           subordinate the Loans to any other
Indebtedness without the written consent of all of the Lenders; or


 


(vi)          permit a Letter of Credit to have an
original expiry date more than eighteen (18) months from the date of issuance
without the consent of each of the Revolving Lenders; provided, that the
expiry date of any Letter of Credit may be extended in accordance with the
terms of Section 2.3(a); or


 


(vii)         permit the Borrower to assign or
transfer any of its rights or obligations under this Agreement or other Credit
Documents without the written consent of all of the Lenders; or


 


(viii)        amend, modify or waive any provision of
the Credit Documents requiring consent, approval or request of the Required
Lenders or all Lenders without the written consent of the Required Lenders or
all the Lenders as appropriate; or


 


(ix)          amend, modify or waive the order in
which Credit Party Obligations are paid or in a manner that would alter the pro
rata sharing of payments by and among the Lenders in Section 2.11(b)
without the written consent of each Lender and each Hedging Agreement Provider
directly affected thereby; or


 


(x)           amend, modify or waive any provision
of Article VIII without the written consent of the then Administrative Agent;
or


 


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(xi)          amend or modify the definition of
Credit Party Obligations to delete or exclude any obligation or liability
described therein without the written consent of each Lender and each Hedging
Agreement directly affected thereby; or


 


(xii)         amend the definitions of “Hedging
Agreement,” “Secured Hedging Agreement,” or “Hedging Agreement Provider”
without the consent of any Hedging Agreement Provider that would be adversely
affected thereby;


 


provided, further,
that no amendment, waiver or consent affecting the rights or duties of the
Administrative Agent, the Issuing Lender or the Swingline Lender under any
Credit Document shall in any event be effective, unless in writing and signed
by the Administrative Agent, the Issuing Lender and/or the Swingline Lender, as
applicable, in addition to the Lenders required hereinabove to take such
action.


 


Any
such waiver, any such amendment, supplement or modification and any such
release shall apply equally to each of the Lenders and shall be binding upon
the Borrower, the other Credit Parties, the Lenders, the Administrative Agent
and all future Participants, Lenders or assignees.  In the case of any waiver, the Borrower, the
other Credit Parties, the Lenders and the Administrative Agent shall be
restored to their former position and rights hereunder and under the
outstanding Loans and Notes and other Credit Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.


 


Notwithstanding
any of the foregoing to the contrary, the consent of the Borrower and the other
Credit Parties shall not be required for any amendment, modification or waiver
of the provisions of Article VIII (other than the provisions of Section 8.9).


 


Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (a) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code supersedes the unanimous consent provisions set forth
herein and (b) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.


 


For
the avoidance of doubt and notwithstanding any provision to the contrary
contained in this Section 9.1, this Agreement may be amended (or amended
and restated) with the written consent of the Credit Parties and the Required
Lenders (i) to increase the aggregate Commitments of the Lenders (provided
that no Lender shall be required to increase its commitment without its
consent), (ii) to add one or more additional borrowing Tranches to this
Agreement and to provide for the ratable sharing of the benefits of this
Agreement and the other Credit Documents with the other then outstanding Credit
Party Obligations in respect of the extensions of credit from time to time
outstanding under such additional borrowing Tranche(s) and the accrued interest
and fees in respect thereof and (iii) to include appropriately the lenders
under such additional borrowing Tranches in any determination of the Required
Lenders and/or to provide consent rights to such lenders under
subsections (ix) and/or (x) of Section 9.1 corresponding to the
consent rights of the other Lenders thereunder.


 


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Section 9.2                                   Notices.


 


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


 


(i)            If to the
Borrower or any other Credit Party:


 


12525
Chadron Avenue


Hawthorne,
CA 90250


Attention:              Chief Financial
Officer


Telephone:            (310) 978-0516


Fax:                         (310) 644-6765


 


With a copy to:


 


12525 Chadron Avenue


Hawthorne, CA 90250


Attention: General Counsel


Telephone:            (310) 978-0516


Fax:                         (310) 970-0862


 


(ii)           If to the
Administrative Agent:


 


Wells
Fargo Bank, National Association, as Administrative Agent


Commercial
Banking Group


South
Bay RCBO


MAC
E2076-052


111
West Ocean Blvd., Suite 530


Long
Beach, CA  90802


Attention:              Tom Sigurdson,
Vice President


Telephone:            (562) 628-2108


Fax:                         (562) 437-6698


Email:                      sigurdt@wellsfargo.com


 


With a copy to:


 


Moore &
Van Allen PLLC


100
N. Tryon St.


Suite 4700


Charlotte,
NC 28202


Attention:              William H.
Fuller


Telephone:            (704) 331-1059


 


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Fax:                         (704) 378-2059


Email:                      billfuller@mvalaw.com


 


(iii)          if to a Lender,
to it at its address (or telecopier number) set forth in its Administrative
Questionnaire.


 


Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received;
notices 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 delivered
through electronic communications to the extent provided in paragraph (b) below,
shall be effective as provided in said paragraph (b).


 


(b)                                 Electronic Communications.  Notices and other communications to the
Lenders and the Issuing Lender 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 Issuing
Lender pursuant to Article II if such Lender or the Issuing Lender, 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)                                  Change of Address, Etc.  Any party hereto may change its address or
telecopier number for notices and other communications hereunder by notice to
the other parties hereto.


 


Section 9.3                                   No
Waiver; Cumulative Remedies.


 


No failure to exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof;


 


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nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.


 


Section 9.4                                   Survival
of Representations and Warranties.


 


All representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and
the making of the Loans; provided that all such representations and
warranties shall terminate on the date upon which the Commitments have been
terminated and all amounts owing hereunder and under any Notes have been paid
in full.


 


Section 9.5                                   Payment
of Expenses and Taxes; Indemnity.


 


(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), and shall pay all fees and time charges and disbursements for attorneys
who may be employees of 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 Credit Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Lender and the
Swingline Lender in connection with the issuance, amendment, renewal or
extension of any Letter of Credit or Swingline Loan or any demand for payment
thereunder and (iii) all out-of-pocket
expenses incurred by the Administrative Agent, any Lender, the Issuing Lender
or the Swingline Lender (including the fees, charges and disbursements of any
counsel for the Administrative Agent, any Lender or the Issuing Lender), and
shall pay all fees and time charges for attorneys who may be employees of the
Administrative Agent, any Lender, the Issuing Lender or the Swingline Lender,
in connection with the enforcement or protection of its rights (A) in connection with this Agreement and
the other Credit Documents, including its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of such Loans
or Letters of Credit; provided, however, that with respect to the above
clause (iii), the Borrower shall only pay the reasonable fees and disbursements
of counsel for a single counsel selected by the Administrative Agent and a
single counsel selected by all of the Lenders (unless any such Lender, in good
faith, shall reasonably determine that there is a conflict of interest that
causes it to be necessary for such Lender to be represented by separate
counsel).


 


(b)                                 Indemnification by the
Borrower.  The Borrower
shall indemnify the Administrative Agent (and any sub-agent thereof), each
Lender, the Issuing Lender and the Swingline Lender, and each Related Party of
any of the foregoing Persons (each such 


 


113

















 


Person
being called an “Indemnitee”) against, and hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses
(including the reasonable and documented fees, charges and disbursements of any
one counsel for the Indemnitees collectively, and, if reasonably necessary, a
conflicts counsel), and shall indemnify and hold harmless each Indemnitee from
all fees and time charges and disbursements for attorneys who may be employees
of any Indemnitee, incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Credit Party
arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other
Credit 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, (ii) any Loan or Letter of
Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the Issuing Lender 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 Materials of Environmental Concern on or from any property owned or
operated by the Borrower or any of its Subsidiaries, or any liability under
Environmental Law related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower or any other Credit Party, and
regardless of whether any Indemnitee is a party thereto, provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that
such losses, claims, damages, liabilities or related expenses (A) 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 (B) result from a claim brought by the
Borrower or any other Credit Party against an Indemnitee for breach in bad
faith of such Indemnitee’s obligations hereunder or under any other Credit
Document, if the Borrower or such Credit Party has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.


 


(c)                                  Reimbursement by Lenders.  To the extent that the Borrower for any
reason fails to indefeasibly pay any amount required under paragraph (a) or (b) of
this Section to be paid by it to the Administrative Agent (or any
sub-agent thereof), the Issuing Lender, Swingline Lender 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 Issuing Lender, Swingline
Lender or such Related Party, as the case may be, such Lender’s Commitment
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), the Issuing Lender or Swingline
Lender 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), Issuing
Lender or Swingline Lender in connection with such capacity.


 


114

















 


(d)                                 Waiver of Consequential
Damages, Etc.  To the
fullest extent permitted by applicable law, the Credit Parties 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 Credit 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 paragraph (b) above
shall be liable for any damages arising from the use by unintended recipients
of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby.


 


(e)                                  Payments.  All amounts due under this Section shall
be payable promptly/not later than five (5) Business Days after written
demand therefor.


 


Section 9.6                                   Successors
and Assigns; Participations.


 


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


 


(b)                                 Assignments by
Lenders.  Any Lender may at any time
assign to one or more assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the
Loans at the time owing to it); provided that any such assignment shall
be subject to the following conditions:


 


(i)                                     Minimum Amounts.


 


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


 


115

















 


(B)                                in any case not
described in paragraph (b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the applicable 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 $1,000,000, unless each of the Administrative Agent and,
so long as no Event of Default has occurred and is continuing, the Borrower
otherwise consents (each such consent not to be unreasonably withheld or
delayed).


 


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


 


(iii)                               Required
Consents.  No consent
shall be required for any assignment except to the extent required by paragraph
(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 (x) a Default or an Event of Default has occurred and is
continuing at the time of such assignment or (y) such assignment is to a
Lender, an Affiliate of a Lender or an Approved Fund; provided that the
Borrower shall be deemed to have consented to any such assignment unless it
shall object thereto by written notice to the Administrative Agent within five (5) Business
Days after having received notice thereof;


 


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


 


(C)                                the consent of
the Issuing Lender and Swingline Lender (such consent not to be unreasonably
withheld or delayed) shall be required for assignments in respect of a
Revolving Commitment.


 


(iv)                              Assignment and
Assumption.  The parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption and, if such assignee is not a Lender, an Affiliate
of a Lender or an Approved


 


116

















 


Fund, a processing and recordation fee of $3,500, and the assignee, if
it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


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


 


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


 


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


 


Subject to acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (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 2.14 and 9.5  with respect
to facts and circumstances occurring prior to the effective date of such
assignment.  Any assignment or transfer
by a Lender of rights or obligations under this Agreement that does not comply
with this


 


117

















 


paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance
with paragraph (d) of this Section.


 


(c)                                  Register.  The Administrative Agent, acting solely for
this purpose as an agent of the Borrower, shall maintain at one of its offices
in Charlotte, North Carolina 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 owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.  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 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 and the Lenders, Issuing
Lender and Swingline Lender shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement.


 


Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that affects such
Participant.  Subject to paragraph (e) of
this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.14 and 2.16 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section; provided such Participant agrees to be subject to Section 2.19
as if it were a Lender.  To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.7 as though it
were a Lender, provided such Participant agrees to be subject to
Section 2.11 as though it were a Lender. 
Each Lender that sells a participation shall, acting solely for this
purpose as a non-fiduciary agent of the Borrower, maintain a register in the
United States on which it enters the name and address of each Participant and
the principal amounts (and stated interest) of each Participant’s interest in
the Loans or other obligations under the Credit Documents (the “Participant
Register”).  The entries in the
Participant Register shall be conclusive absent manifest error, and such Lender
shall treat each person whose 


 


118

















 


name
is recorded in the Participant register as the owner of such participation for
all purposes of this Agreement notwithstanding any notice to the contrary.


 


(e)                                  Limitations
Upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under
Sections 2.14 and 2.16 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 (such consent not to be unreasonably withheld or
delayed).


 


(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 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.


 


Section 9.7                                   Right
of Set-off; Sharing of Payments.


 


(a)                                  If an Event of
Default shall have occurred and be continuing, each Lender, the Issuing Lender,
and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the
Issuing Lender or any such Affiliate to or for the credit or the account of the
Borrower or any other Credit Party against any and all of the obligations of
the Borrower or such Credit Party now or hereafter existing under this
Agreement or any other Credit Document to such Lender or the Issuing Lender,
irrespective of whether or not such Lender or the Issuing Lender shall have
made any demand under this Agreement or any other Credit Document and although
such obligations of the Borrower or such Credit Party may be contingent or
unmatured or are owed to a branch or office of such Lender or the Issuing
Lender different from the branch or office holding such deposit or obligated on
such indebtedness.  The rights of each
Lender, the Issuing Lender and their respective Affiliates under this Section are
in addition to other rights and remedies (including other rights of setoff)
that such Lender, the Issuing Lender or their respective Affiliates may
have.  Each Lender and the Issuing Lender
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.


 


(b)                                 If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or other
obligations hereunder resulting in such Lender’s receiving payment of a
proportion of the aggregate amount of its Loans and accrued interest thereon or
other such obligations greater than its pro  rata share thereof as
provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such
fact, 


 


119

















 


and
(ii) purchase (for cash at face
value) participations in the Loans and such other obligations of the other
Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:


 


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


 


(ii)                                  the provisions
of this paragraph shall not be construed to apply to (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 participations in Letters of Credit to any
assignee or participant, other than to the Borrower or any Subsidiary thereof
(as to which the provisions of this paragraph shall apply).


 


(c)                                  Each Credit Party 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 each Credit Party rights of setoff
and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of each Credit Party in the amount of such
participation.


 


Section 9.8                                   Table
of Contents and Section Headings.


 


The table of contents and the Section and subsection headings
herein are intended for convenience only and shall be ignored in construing
this Agreement.


 


Section 9.9                                   Counterparts;
Integration; Effectiveness; Electronic Execution.


 


(a)                                  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 Credit
Documents, and any separate letter agreements with respect to fees payable to
the Administrative Agent, constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof.  Except as provided in Section 4.1,
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
email shall be effective as delivery of a manually executed counterpart of this
Agreement.


 


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


 


Section 9.10                            Severability.


 


Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.


 


Section 9.11                            Integration.


 


This Agreement and the other Credit Documents represent the agreement
of the Borrower, the other Credit Parties, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent, the
Borrower, the other Credit Parties, or any Lender relative to the subject
matter hereof not expressly set forth or referred to herein or therein.


 


Section 9.12                            Governing
Law.


 


This Agreement shall be governed by, and construed in accordance with,
the law of the State of New York.


 


Section 9.13                            Consent
to Jurisdiction; Service of Process and Venue.


 


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


 


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or any other Credit Document against the Borrower or any other Credit
Party or its properties in the courts of any jurisdiction.


 


(b)                                 Service of
Process. Each party hereto irrevocably consents to service of process in the
manner provided for notices in Section 9.2.  Nothing in this Agreement will affect the
right of any party hereto to serve process in any other manner permitted by
applicable law.


 


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


 


Section 9.14                            Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the Issuing Lender agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
advisors and other 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, under any other Credit Document or Secured Hedging
Agreement or any action or proceeding relating to this Agreement, any other
Credit Document or Secured Hedging Agreement or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) (i) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (ii) an investor
or prospective investor in securities issued by an Approved Fund that also
agrees that Information shall be used solely for the purpose of evaluating an
investment in such securities issued by the Approved Fund, (iii) a
trustee, collateral manager, servicer, backup servicer, noteholder or secured
party in connection with the administration, servicing and reporting on the
assets serving as collateral for securities issued by an Approved Fund, or
(iv) a nationally recognized rating agency that requires access to
information regarding the Credit Parties, the Loans and Credit Documents in
connection with ratings issued in respect of securities issued by an Approved
Fund (in each case, 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), (h) with the consent of the
Borrower or (i) to the extent such Information (x) becomes publicly
available other than as a result of a breach of this Section or (y) becomes
available to the 


 


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Administrative
Agent, any Lender, the Issuing Lender 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 any of
its Subsidiaries or any of their respective businesses, other than any such
information that is available to the Administrative Agent, any Lender or the
Issuing Lender 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 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.


 


Section 9.15                            Acknowledgments.


 


The Borrower and the other Credit Parties each hereby acknowledges
that:


 


(a)                                  it has been
advised by counsel in the negotiation, execution and delivery of each Credit
Document;


 


(b)                                 neither the
Administrative Agent nor any Lender has any fiduciary relationship with or duty
to the Borrower or any other Credit Party arising out of or in connection with
this Agreement and the relationship between the Administrative Agent and the
Lenders, on one hand, and the Borrower and the other Credit Parties, on the
other hand, in connection herewith is solely that of debtor and creditor; and


 


(c)                                  no joint
venture exists among the Lenders or among the Borrower or the other Credit
Parties and the Lenders.


 


Section 9.16                            Waivers
of Jury Trial; Waiver of Consequential Damages.


 


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


 


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Section 9.17                            Patriot
Act Notice.


 


Each
Lender and the Administrative Agent (for itself and not on behalf of any other
party) hereby notifies the Borrower that, pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower and the other Credit Parties, which information
includes the name and address of the Borrower and the other Credit Parties and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower and the other Credit Parties in accordance
with the Patriot Act.


 


Section 9.18                            Resolution
of Drafting Ambiguities.


 


Each Credit Party acknowledges and agrees that it was represented by
counsel in connection with the execution and delivery of this Agreement and the
other Credit Documents to which it is a party, that it and its counsel reviewed
and participated in the preparation and negotiation hereof and thereof and that
any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation hereof
or thereof.


 


Section 9.19                            Continuing
Agreement.


 


This Credit Agreement shall be a continuing agreement and shall remain
in full force and effect until all Loans, LOC Obligations, interest, fees and
other Credit Party Obligations (other than those obligations that expressly
survive the termination of this Credit Agreement) have been paid in full and
all Commitments and Letters of Credit have been terminated.  Upon termination, the Credit Parties shall
have no further obligations (other than those obligations that expressly
survive the termination of this Credit Agreement) under the Credit Documents
and the Administrative Agent shall, at the request and expense of the Borrower,
deliver all the Collateral in its possession to the Borrower and release all
Liens on the Collateral; provided that should any payment, in whole or
in part, of the Credit Party Obligations be rescinded or otherwise required to
be restored or returned by the Administrative Agent or any Lender, whether as a
result of any proceedings in bankruptcy or reorganization or otherwise, then
the Credit Documents shall automatically be reinstated and all Liens of the
Administrative Agent shall reattach to the Collateral and all amounts required
to be restored or returned and all costs and expenses incurred by the
Administrative Agent or any Lender in connection therewith shall be deemed
included as part of the Credit Party Obligations.


 


Section 9.20                            Lender
Consent


 


Each
Person signing a Lender Consent (a) approves
the Credit Agreement, (b) authorizes
and appoints the Administrative Agent as its agent in accordance with the terms
of Article VIII, (c) authorizes
the Administrative Agent to execute and deliver this Agreement on its behalf,
and (d) is a Lender hereunder and
therefore shall have all the rights and obligations of a Lender under this
Agreement as if such Person had directly executed and delivered a signature page to
this Agreement.


 


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Section 9.21                            Judgment
Currency.


 


If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due hereunder or any other Credit
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the
Administrative Agent, the Issuing Lender or other applicable Lender could
purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given.  The obligation of the Borrower in respect of
any such sum due from it to Administrative Agent, the Issuing Lender or other
applicable Lender hereunder or under the other Credit Documents shall,
notwithstanding any judgment in a currency (the “Judgment Currency”) other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the “Agreement Currency”), be discharged only to
the extent that on the Business Day following receipt by the Administrative
Agent, the Issuing Lender or other applicable Lender of any sum adjudged to be
so due in the Judgment Currency, the Administrative Agent, the Issuing Lender
or other applicable Lender may in accordance with normal banking procedures
purchase the Agreement Currency with the Judgment Currency.  If the amount of the Agreement Currency so
purchased is less than the sum originally due to the Administrative Agent, the
Issuing Lender or other applicable Lender from the Borrower in the Agreement
Currency, the Borrower agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify the Administrative Agent, the Issuing Lender or
other applicable Lender against such loss. 
If the amount of the Agreement Currency so purchased is greater than the
sum originally due to the Administrative Agent, the Issuing Lender or other
applicable Lender in such currency, the Administrative Agent, the Issuing
Lender or other applicable Lender agrees to return the amount of any excess to
the Borrower (or to any other Person who may be entitled thereto under
applicable law).


 


Section 9.22                            Press Releases and Related Matters.


 


The
Credit Parties and their Affiliates agree that they will not in the future
issue any press releases or other public disclosure using the name of Administrative
Agent or any Lender or their respective Affiliates or referring to this
Agreement or any of the Credit Documents without the prior written consent of
such Person, which consent shall not be unreasonably withheld or delayed,
unless (and only to the extent that) the Credit Parties or such Affiliate is
required to do so under law and then, in any event, the Credit Parties or such
Affiliate will consult with such Person before issuing such press release or
other public disclosure.  The Credit Parties
consent to the publication by Administrative Agent or any Lender of customary
advertising material relating to the Transactions using the name, product
photographs, logo or trademark of the Credit Parties.


 


Section 9.23                            No Advisory or Fiduciary Responsibility.


 


In connection with all aspects of each Transaction, each of the Credit
Parties acknowledges and agrees, and acknowledges its Affiliates’
understanding, that:  (a) the
credit facility  provided for hereunder and any
related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any
other Credit Document) are an arm’s-length commercial transaction between the
Credit


 


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Parties and their  Affiliates, on
the one hand, and the Administrative Agent and the Arrangers, on the other
hand, and the Credit Parties are capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the Transactions and
by the other Credit Documents (including any amendment, waiver or other
modification hereof or thereof); (b) in connection with the process
leading to such transaction, the Administrative Agent and the Arrangers each
are and have been acting solely as a principal and is not the financial
advisor, agent or fiduciary, for any Credit Party or any of their Affiliates,
stockholders, creditors or employees or any other Person; (c) neither
the Administrative Agent nor the Arrangers have assumed or will assume an
advisory, agency or fiduciary responsibility in favor of any Credit Party with
respect to any of the Transactions or the process leading thereto, including
with respect to any amendment, waiver or other modification hereof or of any
other Credit Document (irrespective of whether the Administrative Agent or the
Arrangers have advised or are currently advising any Credit Party or any of its
Affiliates on other matters) and neither the Administrative Agent nor the
Arrangers have any obligation to any Credit Party or any of their Affiliates
with respect to the Transactions except those obligations expressly set forth
herein and in the other Credit Documents; (d) the Administrative
Agent and the Arrangers and their respective Affiliates may be engaged in a
broad range of transactions that involve interests that differ from those of
the Credit Parties and their Affiliates, and neither the Administrative Agent
nor the Arrangers have any obligation to disclose any of such interests by
virtue of any advisory, agency or fiduciary relationship; and (e) the
Administrative Agent and the Arrangers have not provided and will not provide
any legal, accounting, regulatory or tax advice with respect to any of the
Transactions (including any amendment, waiver or other modification hereof or
of any other Credit Document) and the Credit Parties have consulted their own
legal, accounting, regulatory and tax advisors to the extent it has deemed
appropriate.  Each of the Credit Parties
hereby waives and releases, to the fullest extent permitted by law, any claims
that it may have against the Administrative Agent or the Arrangers with respect
to any breach or alleged breach of agency or fiduciary duty.


 


ARTICLE X


 


GUARANTY


 


Section 10.1                            The
Guaranty.


 


In
order to induce the Lenders to enter into this Agreement and any Hedging
Agreement Provider to enter into any Secured Hedging Agreement and to extend
credit hereunder and thereunder and in recognition of the direct benefits to be
received by the Guarantors from the Extensions of Credit hereunder and any
Secured Hedging Agreement, each of the Guarantors hereby agrees with the
Administrative Agent, the Lenders and the Hedging Agreement Providers as
follows:  each Guarantor hereby
unconditionally and irrevocably jointly and severally guarantees as primary
obligor and not merely as surety the full and prompt payment when due, whether
upon maturity, by acceleration or otherwise, of any and all Credit Party
Obligations.  If any or all of the indebtedness
becomes due and payable hereunder or under any Secured Hedging Agreement, each
Guarantor unconditionally promises to pay such indebtedness to the
Administrative Agent, the Lenders, the Hedging Agreement Providers, or their
respective order, or demand, together with any and all reasonable expenses
which may be incurred by the


 


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Administrative
Agent or the Lenders in collecting any of the Credit Party Obligations.  The Guaranty set forth in this Article X
is a guaranty of timely payment and not of collection.  The word “indebtedness” is used in this Article X
in its most comprehensive sense and includes any and all advances, debts,
obligations and liabilities of the Borrower, including specifically all Credit
Party Obligations, arising in connection with this Agreement, the other Credit
Documents or any Secured Hedging Agreement, in each case, heretofore, now, or
hereafter made, incurred or created, whether voluntarily or involuntarily,
absolute or contingent, liquidated or unliquidated, determined or undetermined,
whether or not such indebtedness is from time to time reduced, or extinguished
and thereafter increased or incurred, whether the Borrower may be liable
individually or jointly with others, whether or not recovery upon such indebtedness
may be or hereafter become barred by any statute of limitations, and whether or
not such indebtedness may be or hereafter become otherwise unenforceable.


 


Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, to the extent the obligations of a Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of each such
Guarantor hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).


 


Section 10.2                            Bankruptcy.


 


Additionally,
each of the Guarantors unconditionally and irrevocably guarantees jointly and
severally the payment of any and all Credit Party Obligations of the Borrower
to the Lenders and any Hedging Agreement Provider whether or not due or payable
by the Borrower upon the occurrence of any Bankruptcy Event and unconditionally
promises to pay such Credit Party Obligations to the Administrative Agent for
the account of the Lenders and to any such Hedging Agreement Provider, or
order, on demand, in lawful money of the United States.  Each of the Guarantors further agrees that to
the extent that the Borrower or a Guarantor shall make a payment or a transfer
of an interest in any property to the Administrative Agent, any Lender or any
Hedging Agreement Provider, which payment or transfer or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, or
otherwise is avoided, and/or required to be repaid to the Borrower or a
Guarantor, the estate of the Borrower or a Guarantor, a trustee, receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then to the extent of such avoidance or repayment, the
obligation or part thereof intended to be satisfied shall be revived and
continued in full force and effect as if said payment had not been made.


 


Section 10.3                            Nature
of Liability.


 


The
liability of each Guarantor hereunder is exclusive and independent of any
security for or other guaranty of the Credit Party Obligations of the Borrower
whether executed by any such Guarantor, any other guarantor or by any other
party, and no Guarantor’s liability hereunder shall be affected or impaired by
(a) any direction as to application of payment by the Borrower or by any
other party, or (b) any other continuing or other guaranty, undertaking or
maximum liability of a guarantor or of any other party as to the Credit Party
Obligations of the Borrower,


 


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or
(c) any payment on or in reduction of any such other guaranty or undertaking,
or (d) any dissolution, termination or increase, decrease or change in
personnel by the Borrower, or (e) any payment made to the Administrative
Agent, the Lenders or any Hedging Agreement Provider on the Credit Party
Obligations which the Administrative Agent, such Lenders or such Hedging
Agreement Provider repay the Borrower pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each of the Guarantors waives any right to the deferral or
modification of its obligations hereunder by reason of any such proceeding.


 


Section 10.4                            Independent
Obligation.


 


The
obligations of each Guarantor hereunder are independent of the obligations of
any other Guarantor or the Borrower, and a separate action or actions may be
brought and prosecuted against each Guarantor whether or not action is brought
against any other Guarantor or the Borrower and whether or not any other
Guarantor or the Borrower is joined in any such action or actions.


 


Section 10.5                            Authorization.


 


Each
of the Guarantors authorizes the Administrative Agent, each Lender and each
Hedging Agreement Provider without notice or demand (except as shall be
required by applicable statute and cannot be waived), and without affecting or
impairing its liability hereunder, from time to time to (a) renew,
compromise, extend, increase, accelerate or otherwise change the time for
payment of, or otherwise change the terms of the Credit Party Obligations or
any part thereof in accordance with this Agreement and any Secured Hedging
Agreement, as applicable, including any increase or decrease of the rate of
interest thereon, (b) take and hold security from any Guarantor or any
other party for the payment of this Guaranty or the Credit Party Obligations
and exchange, enforce waive and release any such security, (c) apply such
security and direct the order or manner of sale thereof as the Administrative
Agent and the Lenders in their discretion may determine, (d) release or
substitute any one or more endorsers, Guarantors, the Borrower or other
obligors and (e) to the extent otherwise permitted herein, release or
substitute any Collateral.


 


Section 10.6                            Reliance.


 


It
is not necessary for the Administrative Agent, the Lenders or any Hedging
Agreement Provider to inquire into the capacity or powers of the Borrower or
the officers, directors, members, partners or agents acting or purporting to
act on its behalf, and any Credit Party Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.


 


Section 10.7                            Waiver.


 


(a)                                  Each of the Guarantors
waives any right (except as shall be required by applicable statute and cannot
be waived) to require the Administrative Agent, any Lender or any Hedging
Agreement Provider to (i) proceed against the Borrower, any other


 


128

















 


guarantor
or any other party, (ii) proceed against or exhaust any security held from
the Borrower, any other guarantor or any other party, or (iii) pursue any
other remedy in the Administrative Agent’s, any Lender’s or any Hedging
Agreement Provider’s power whatsoever. 
Each of the Guarantors waives any defense based on or arising out of any
defense of the Borrower, any other guarantor or any other party other than
payment in full of the Credit Party Obligations (other than contingent
indemnity obligations), including without limitation any defense based on or
arising out of the disability of the Borrower, any other guarantor or any other
party, or the unenforceability of the Credit Party Obligations or any part
thereof from any cause, or the cessation from any cause of the liability of the
Borrower other than payment in full of the Credit Party Obligations.  The Administrative Agent may, at its
election, foreclose on any security held by the Administrative Agent or a
Lender by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy the
Administrative Agent or any Lender may have against the Borrower or any other
party, or any security, without affecting or impairing in any way the liability
of any Guarantor hereunder except to the extent the Credit Party Obligations
have been paid in full and the Commitments have been terminated.  Each of the Guarantors waives any defense
arising out of any such election by the Administrative Agent or any of the
Lenders, even though such election operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of the Guarantors
against the Borrower or any other party or any security.


 


(b)                                 Each of the Guarantors
waives all presentments, demands for performance, protests and notices,
including without limitation notices of nonperformance, notice of protest,
notices of dishonor, notices of acceptance of this Guaranty, and notices of the
existence, creation or incurring of new or additional Credit Party
Obligations.  Each Guarantor assumes all
responsibility for being and keeping itself informed of the Borrower’s
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Credit Party Obligations and the nature, scope and
extent of the risks which such Guarantor assumes and incurs hereunder, and
agrees that neither the Administrative Agent nor any Lender shall have any duty
to advise such Guarantor of information known to it regarding such
circumstances or risks.


 


(c)                                  Each of the Guarantors
hereby agrees it will not exercise any rights of subrogation which it may at
any time otherwise have as a result of this Guaranty (whether contractual,
under Section 509 of the U.S. Bankruptcy Code, or otherwise) to the claims
of the Lenders or any Hedging Agreement Provider against the Borrower or any
other guarantor of the Credit Party Obligations of the Borrower owing to the
Lenders or such Hedging Agreement Provider (collectively, the “Other Parties”)
and all contractual, statutory or common law rights of reimbursement,
contribution or indemnity from any Other Party which it may at any time
otherwise have as a result of this Guaranty until such time as the Credit Party
Obligations shall have been paid in full and the Commitments have been
terminated.  Each of the Guarantors
hereby further agrees not to exercise any right to enforce any other remedy
which the Administrative Agent, the Lenders or any Hedging Agreement Provider
now have or may hereafter have against any Other Party, any endorser or any
other guarantor of all or any part of the Credit Party


 


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Obligations of the Borrower and any benefit of, and any right to
participate in, any security or collateral given to or for the benefit of the
Lenders and/or the Hedging Agreement Providers to secure payment of the Credit
Party Obligations of the Borrower until such time as the Credit Party
Obligations (other than contingent indemnity obligations) shall have been paid
in full and the Commitments have been terminated.


 


Section 10.8                            Limitation
on Enforcement.


 


The
Lenders and the Hedging Agreement Providers agree that this Guaranty may be
enforced only by the action of the Administrative Agent acting upon the
instructions of the Required Lenders or such Hedging Agreement Provider (only
with respect to obligations under the applicable Secured Hedging Agreement) and
that no Lender or Hedging Agreement Provider shall have any right individually
to seek to enforce or to enforce this Guaranty, it being understood and agreed
that such rights and remedies may be exercised by the Administrative Agent for
the benefit of the Lenders under the terms of this Agreement and for the
benefit of any Hedging Agreement Provider under any Secured Hedging Agreement.  The Lenders and the Hedging Agreement
Providers further agree that this Guaranty may not be enforced against any
director, officer, employee or stockholder of the Guarantors.


 


Section 10.9                            Confirmation
of Payment.


 


The Administrative Agent and the Lenders will, upon request after payment
of the Credit Party Obligations which are the subject of this Guaranty and
termination of the Commitments relating thereto, confirm to the Borrower, the
Guarantors or any other Person that such indebtedness and obligations have been
paid and the Commitments relating thereto terminated, subject to the provisions
of Section 10.2.


 


[Signature Pages Follow]


 


130
















 


OSI SYSTEMS, INC.


CREDIT AGREEMENT


 


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


 


 


	
  BORROWER:

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  DOLPHIN
  MEDICAL, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Deepak Chopra

  
	
   

  	
  Name:
  Deepak Chopra

  
	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FERSON
  TECHNOLOGIES, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  METOREX
  SECURITY PRODUCTS, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Deepak Chopra

  
	
   

  	
  Name:
  Deepak Chopra

  
	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OSI
  DEFENSE SYSTEMS, LLC,

  
	
   

  	
  a
  Florida limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title: Chief Financial
  Officer

  



 

















 


OSI SYSTEMS, INC.


CREDIT AGREEMENT


 


	
   

  	
  OSI
  ELECTRONCS, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OSI
  OPTOELECTRONICS, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OSTEOMETER
  MEDITECH, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RAPISCAN
  LABORATORIES, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Shiva Kumar

  
	
   

  	
  Name:
  Shiva Kumar

  
	
   

  	
  Title:
  President

  



 

















 


	
   

  	
  RAPISCAN
  SYSTEMS, INC.,

  
	
   

  	
  a
  California corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Deepak Chopra

  
	
   

  	
  Name:
  Deepak Chopra

  
	
   

  	
  Title:
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPACELABS
  HEALTHCARE, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPACELABS
  HEALTHCARE, L.L.C.,

  
	
   

  	
  a
  Washington limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Joseph
  Davin

  
	
   

  	
  Name:
  Joseph Davin

  
	
   

  	
  Title:
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPACELABS
  MEDICAL, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Alan Edrick

  
	
   

  	
  Name:
  Alan Edrick

  
	
   

  	
  Title:
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  S2
  GLOBAL, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jonathan Fleming

  
	
   

  	
  Name:
  Jonathan Fleming

  
	
   

  	
  Title:
  President

  



 


3

















 


	
  ADMINISTRATIVE
  AGENT:

  	
  WELLS
  FARGO BANK, NATIONAL

  
	
   

  	
  ASSOCIATION, as
  Administrative Agent on behalf of the Lenders

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Tom Sigurdson

  
	
   

  	
  Name:
  Tom Sigurdson

  
	
   

  	
  Title:
  Vice President

  



 


4
















 


Schedule 1.1(a)


Investments


 


See
Schedule 3.12 for Investments in Subsidiaries.


 


	
   

  	
   

  	
  Amount

  (in 000s)

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investment in Cardiac Sciences Corporation

  	
   

  	
  $

  	
  1,127

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investment in USCom

  	
   

  	
  611

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Investment in ECIL Rapiscan

  	
   

  	
  3,410

  	
   

  
					



 

















 


Schedule
1.1(b)


Liens


OSI
Electronics. Inc.


General Electronic Capital
Corporation (purchase money security interest in certain equipment)


 


Orbotech, Inc.
(purchase money security interest in certain equipment)


 


OSI
Optoelectronics, Inc.


Canon Financial Services
(purchase money security interest in certain equipment)


 


Air Liquide Industrial U.S.
LP (purchase money security interest in certain equipment)


 


OSI
Systems. Inc.


Qwest Communications
Company, LLC (purchase money security interest in certain equipment)


 


Network Appliance, Inc.
(purchase money security interest in certain equipment)


 


Rapiscan
Systems. Inc.


Greater Bay Bank (purchase
money security interest in certain equipment)


TD Equipment Finance, Inc.
(purchase money security interest in certain equipment)


 


Jackson County, Mississippi
(mortgage for property located at 5801 Gulf Tech Drive, Ocean Springs,
Mississippi 39564-8225)


 


Rapiscan
Systems Limited (UK)


Mortgage for property
located at X-Ray House , Bonehurst Road, Salfords, Surrey, RH1 5GG, UK)


 


Guarantee facility with HSBC


 


Spacelabs
Healthcare, LLC


Wells
Fargo Financial Leasing, Inc. (purchase money security
interest in certain equipment)


 


Spacelabs
Medical. Inc.


Citicorp Vendor Finance, Inc.
(purchase money security interest in certain equipment)


 

















 


Schedule 3.3


Jurisdiction of Organization and Qualification


 




	
  Legal
  Name of Credit Party:

  	
   

  	
  OSI
  Systems, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (310)
  978-0516

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  4789003

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Publicly
  Held

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Dolphin
  Medical, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Washington

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (310)
  978-0516

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C2349879

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of owners/partners):

  	
   

  	
  Private,
  Spacelabs Healthcare, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Ferson
  Technologies, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Mississippi

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  5801
  Gulf Tech Drive, Ocean Springs, Mississippi 39564

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  5801
  Gulf Tech Drive, Ocean Springs, Mississippi 39564

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (228)
  875-8146

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C1842804

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Optoelectronics, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Metorex
  Security Products, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Indiana,
  New Jersey, New York, Pennsylvania

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  2805
  Columbia Street

  Torrance,
  CA 90503

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  2805
  Columbia Street

  Torrance,
  CA 90503

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (310)
  978-1457

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C2118072

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  Rapiscan Systems, Inc.

  






 
















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  OSI
  Defense Systems, LLC

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  Florida

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  Limited
  liability company

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  310-978-0516

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  L03000026778

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Optoelectronics, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  OSI
  Electronics, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Massachusetts

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  2385
  E. Pleasant Valley Road

  Camarillo,
  CA 93012

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  2385
  E. Pleasant Valley Road

  Camarillo,
  CA 93012

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (805)
  499-6877

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C1924054

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Optoelectronics, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  OSI
  Optoelectronics, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Florida

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (310)
  978-0516

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C1660062

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Systems, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Osteometer
  Meditech, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (310)
  978-0516

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C2047602

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Optoelectronics, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Rapiscan
  Laboratories, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  520
  Almanor Avenue

  Sunnyvale,
  CA 94085

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  520
  Almanor Avenue

  Sunnyvale,
  CA 94085

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (408)
  961-9700

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C2134544

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Systems, Inc.

  






 
















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Rapiscan
  Systems, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  California

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Alabama,
  Arizona, Connecticut, Colorado, Florida, Georgia, Louisiana, Massachusetts,
  Mississippi, New Jersey, New York, Pennsylvania, Virginia

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  2805
  Columbia Street

  Torrance,
  CA 90503

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  2805
  Columbia Street

  Torrance,
  CA 90503

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (310)
  978-1457

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C1841134

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Systems, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Spacelabs
  Healthcare, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  5150
  220th Avenue SE

  Issaquah,
  Washington 98029

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  5150
  220th Avenue SE

  Issaquah,
  Washington 98029

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (425)
  657-7200

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  C4009030

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  OSI Systems, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Spacelabs
  Healthcare, L.L.C.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  Washington

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  Limited
  liability company

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Hawaii,
  Nevada, West Virginia

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  5150
  220th Avenue SE

  Issaquah,
  Washington 98029

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  5150
  220th Avenue SE

  Issaquah,
  Washington 98029

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (425)
  657-7200

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  602-678-651

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  Spacelabs Medical, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  Spacelabs
  Medical, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  California,
  Washington

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  5150
  220th Avenue SE

  Issaquah,
  Washington 98029

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  5150
  220th Avenue SE

  Issaquah,
  Washington 98029

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  (425)
  657-7200

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  3768146

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  Spacelabs Healthcare, Inc.

  






 

















 




	
  Legal
  Name of Credit Party:

  	
   

  	
  S2
  Global, Inc.

  
	
   

  	
   

  	
   

  
	
  Previous
  Legal Names with the past 4 months:

  	
   

  	
  None

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
  Delaware

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
  C-Corp

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  Qualified to do Business:

  	
   

  	
  Virginia

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
  310-978-0516

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  	
  4178628

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership - identity of
  owners/partners):

  	
   

  	
  Private,
  Rapiscan Systems, Inc.

  






 
















 


Schedule 3.12


Subsidiaries


 


	
  SUBSIDIARY

  	
   

  	
  NUMBER OF OUTSTANDING

  SHARES AND EQUITY INTEREST

  HOLDER

  	
   

  	
  PERCENTAGE

  OWNERSHIP

  
	
  Blease
  Medical Holdings Ltd.

  	
   

  	
  417,529
  fully paid ordinary shares of £1 each; 45,000 “A” Preferred ordinary shares
  of £1 each; and 79,412 “B” Preferred ordinary shares of £1 each. Shares
  transferred from OSI to Spacelabs Healthcare via the October 2005 share
  transfer agreement.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  CXR
  Limited

  	
   

  	
  I,577
  ordinary shares (£1,577.00) issued to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Del
  Mar Reynolds Medical, Ltd.

  	
   

  	
  53,329
  Ordinary Shares of £1 each held by Spacelabs Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  Dolphin
  Medical Pte. Ltd.

  	
   

  	
  200,000
  shares issued to Dolphin Medical, Inc.

  	
   

  	
  100%
  (Dolphin Medical, Inc.)

  
	
  Dolphin
  Medical, Inc.

  	
   

  	
  85,809,000
  common shares issued to Spacelabs Healthcare, Inc.; handful of other
  shares issued under stock option plan

  	
   

  	
  99.9%
  Spacelabs Healthcare, Inc.

  
	
  Ferson
  Technologies, Inc. (f/k/a Ferson Optics, Inc.)

  	
   

  	
  92,500
  Class A common shares issued to OSI Optoelectronics, Inc.; 7,500
  Class B common shares issued to OSI Optoelectronics, Inc.

  	
   

  	
  100%
  (OSI Optoelectronics, Inc.)

  
	
  Metorex
  Security Products, Inc.

  	
   

  	
  10
  common shares issued to Rapiscan Systems, Inc.

  	
   

  	
  100%
  (Rapiscan Systems, Inc.)

  
	
  OSI
  Optoelectronics Sdn. Bhd. (f/k/a Opto Sensors (Malaysia) Sdn. Bhd.)

  	
   

  	
  1,625,000
  ordinary shares issued to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Opto
  Sensors Hong Kong Limited

  	
   

  	
  LHI
  Technology Limited (holding 200,000 shares of HK$1.00 each); OSI
  Systems, Inc. (holding 300,000 shares of HK$1.00 each)

  	
   

  	
  60%
  (OSI Systems); 40% (LHI Technology Limited)

  
	
  OSI
  Defense Systems, LLC

  	
   

  	
  Capital
  contribution of $650.00 by OSI Systems, Inc.

   

  Per
  January 4, 2007 Stock Transfer Agreement, OSI Systems, Inc.
  transferred its ownership interest to OSI Optoelectronics, Inc. (f/k/a
  UDT Sensors, Inc.)

  	
   

  	
  100%
  (OSI Optoelectronics, Inc.)

  
	
  OSI
  Electronics Pte Ltd

  	
   

  	
  4,593,396
  shares issued to OSI Optoelectronics, Inc. 88.45%; (Michael) Tan Thian
  Chye 2.88%; Santos Loy 2.88%; Ng Mui Gek 2.88%; (Steven) Sim Kwang Whee
  2.88%;

  	
   

  	
  88.45%
  (OSI Optoelectronics, Inc.); 2.88% (Michael) Tan Thian Chye); 2.88%
  (Santos Loy); 2.88% (Ng Mui Gek); 2.88% ((Steven) Sim Kwang Whee);

  



 


1

















 


	
  SUBSIDIARY

  	
   

  	
  NUMBER OF OUTSTANDING

  SHARES AND EQUITY INTEREST

  HOLDER

  	
   

  	
  PERCENTAGE

  OWNERSHIP

  
	
  OSI
  Electronics, Inc.

  	
   

  	
  25,000
  common shares issued to OSI Optoelectronics, Inc.

  	
   

  	
  100%
  (OSI Optoelectronics, Inc.

  
	
  OSI
  Optoelectronics AS

  	
   

  	
  4,500,000
  ordinary shares to OSI Optoelectronics, Inc.

  	
   

  	
  100%
  (OSI Optoelectronics, Inc.)

  
	
  OSI
  Optoelectronics Limited

  	
   

  	
  CYP
  1,000 ordinary shares issued to OSI Optoelectronics, Inc. (f/k/a UDT
  Sensors, Inc.)(100% ownership)

  	
   

  	
  100%
  (OSI Optoelectronics, Inc.)

  
	
  OSI
  Optoelectronics, Inc. (f/k/a UDT Sensors, Inc.)

  	
   

  	
  105
  common shares issued to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  OSI
  Systems Private Limited (f/ka Rapiscan Systems Private Limited)

  	
   

  	
  Authorized
  share capital: Rs.4,60,00,000/- (Rupees Four Crore Sixty Lakhs) divided in 46,00,000
  Equity Shares of Rs 10/- each.

  	
   

  	
  Issued
  shares: (i) 192,700 to OSI Systems, Inc. (46.27%); (ii) 5,301
  Spacelabs Medical, Inc. (1.27%); (iii) 50 to Spacelabs
  Healthcare, Inc. (0.01%); (iv)68,686 to SL Healthcare Limited (16.49%);
  (v) 10,600 to OSi Optoelectronics Inc. (2.55%); (vi) 100 to OSI
  Electronics Inc. (0.02%); (vii) 139,016 to OSI Optoelectronics Limited
  (33.38%).

  
	
  Osteometer
  Meditech, Inc.

  	
   

  	
  10
  common shares issued to OSI Optoelectronics, Inc.

  	
   

  	
  100%
  (OSI Optoelectronics, Inc.)

  
	
  PT
  OSI Electronics

  	
   

  	
  1,500
  shares. 99% issued to OSI Electronics Pte Ltd.

  	
   

  	
  99%
  (OSI Electronics Pte. Ltd.); 1% (unrelated third party)

  
	
  PT
  OSI Systems

  	
   

  	
  1,100
  shares. 1,089 shares issued to OSI Systems, Inc. 11 shares issued to OSI
  Optoelectronics, Inc.

  	
   

  	
  99%
  (OSI Systems, Inc.); 1% (OSI Optoelectronics, Inc.)

  
	
  Rapiscan
  Systems, Inc. (f/k/a Rapiscan Security Products, Inc.)

  	
   

  	
  10,000
  Class B common shares issued to OSI Systems, Inc.

   

  90,000
  Class A common shares issued to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Rapiscan
  Systems (Cyprus) Limited

  	
   

  	
  2,000
  to Rapiscan Systems, Inc.

  	
   

  	
  100%
  (Rapiscan Systems, Inc.)

  
	
  Rapiscan
  Systems Australia Pty Ltd

  	
   

  	
  1
  Ordinary share valued at A$1.00 (No par value in AU) issued to Rapiscan
  Systems, Inc., a California corporation.

  	
   

  	
  100%
  (Rapiscan Systems, Inc.)

  
	
  Rapiscan
  Systems Hong Kong Limited

  	
   

  	
  HK
  $2.00 divided into 2 ordinary shares of HK$1.00 each to OSI
  Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Rapiscan
  do Brasil Ltda

  	
   

  	
  49,800
  quotas owned by Rapiscan Systems, Inc.; 700 quotas owned by Roberto Sarmento

  	
   

  	
  99%
  (Rapiscan Systems, Inc.) 1% (Roberto Sarmento)

  



 


2

















 


	
  SUBSIDIARY

  	
   

  	
  NUMBER OF OUTSTANDING

  SHARES AND EQUITY INTEREST

  HOLDER

  	
   

  	
  PERCENTAGE

  OWNERSHIP

  
	
  Rapiscan
  Systems Limited (U.K.)

  	
   

  	
  1,824,896
  ordinary shares issued to Rapiscan Systems, Inc.

  	
   

  	
  100%
  (Rapiscan Systems, Inc.)

  
	
  Rapiscan
  Laboratories, Inc. (f/k/a Rapiscan Systems Neutronics and Advanced
  Technologies Corporation)

  	
   

  	
  10
  common shares issued to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Rapiscan
  Systems Oy

  	
   

  	
  20,150
  shares to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Rapiscan
  Systems Pte. Ltd

  	
   

  	
  7,000,000
  shares issued to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Rapiscan
  Systems, S.A. de C.V.

  	
   

  	
  50,000
  ordinary shares par value Mex $1.00; 49,999 shares issued to Rapiscan
  Systems, Inc.; 1 share issued to OSI Systems, Inc.

  	
   

  	
  99%
  (Rapiscan Systems, Inc.); 1% OSI Systems, Inc.

  
	
  Rapiscan
  Systems Sdn. Bhd.

  	
   

  	
  250,000
  total shares of RM 1.00 issued as follows: Opto Sensors (M) Sdn. Bhd
  (165,000, or 66%), Rapiscan Systems Limited (UK): (72,500, or 29%), OSI
  Systems, Inc. (12,500, or 5%). On or about November 2, 2006, all of
  the shares owned by Opto Sensors (M), Rapiscan Systems Limited, and OSI
  Systems were transferred to Rapiscan Systems (Cyprus) Limited; Increased # of
  shares issued to Rapiscan Systems (Cyprus) Limited from 250,000 to 2,500,000,
  ordinary shares.

  	
   

  	
  100%
  (Rapiscan Systems (Cyprus) Limited)

  
	
  SL
  Healthcare Limited

  	
   

  	
  Issued
  and paid up capital: 1,000 ordinary shares of CYP1 each ordinary shares issued
  to Spacelabs Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  Spacelabs
  Healthcare (Canada), Inc.

  	
   

  	
  3,953,532
  shares for consideration of C $1.00; issued to Spacelabs
  Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  Spacelabs
  Healthcare GmbH

  	
   

  	
  €128,000
  issued to Spacelabs Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  Spacelabs
  Healthcare Ltd.

  	
   

  	
  (a) 7,000,000
  ordinary shares (nominal value of 5 pence each) all held by Blease Medical
  Holdings;(b) 1,000,000 Deferred Shares (nominal value of 5 pence each)
  all held by Blease Medical Holdings; and (c) 250,000 Redeemable Shares
  (nominal value of 10 pence each) all held by Blease Medical Holdings.

  	
   

  	
  100%
  (Blease Medical Holding, Ltd.)

  
	
  Spacelabs
  Healthcare Pte. Ltd.

  	
   

  	
  100,000
  shares of par value S $1.00 each; issued to Spacelabs Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  



 


3

















 


	
  SUBSIDIARY

  	
   

  	
  NUMBER OF OUTSTANDING

  SHARES AND EQUITY INTEREST

  HOLDER

  	
   

  	
  PERCENTAGE

  OWNERSHIP

  
	
  Spacelabs
  Healthcare SAS

  	
   

  	
  2,050,000
  shares of par value Euro 1.00 each — issued to Spacelabs
  Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  Spacelabs
  Healthcare S.r.l.

  	
   

  	
  €10,000
  quotas owned by Spacelabs Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  Spacelabs
  Healthcare Trading (Shanghai) Co., Ltd

  	
   

  	
  RMB
  1,655,360 capitalization from Spacelabs Healthcare Pte. Ltd.

  	
   

  	
  100%
  (Spacelabs Healthcare Pte. Ltd.)

  
	
  Spacelabs
  Healthcare, Inc.

  	
   

  	
  3,000
  common shares issued to OSI Systems, Inc.

  	
   

  	
  100%
  (OSI Systems, Inc.)

  
	
  Spacelabs
  Healthcare, LLC

  	
   

  	
  Capital
  contribution of $1,000 by member Spacelabs Medical, Inc.

  	
   

  	
  100%
  (Spacelabs Medical, Inc.)

  
	
  Spacelabs
  Medical, Inc.

  	
   

  	
  90,000,900
  common shares issued to Spacelabs Healthcare, Inc.

  	
   

  	
  100%
  (Spacelabs Healthcare, Inc.)

  
	
  Spacelabs
  Healthcare Medical Equipment (Suzhou) Co., Ltd.

  	
   

  	
  Invested
  registered capital of US $4.2 million by Spacelabs Healthcare (Singapore)
  Pte.

  	
   

  	
  100%
  (Spacelabs Healthcare (Singapore) Pte. Ltd.

  
	
  S2
  Global, Inc.

  	
   

  	
  1,000
  common shares issued to Rapiscan Systems, Inc.

  	
   

  	
  100%
  (Rapiscan Systems, Inc.)

  
	
  S2
  Services, Ltd.

  	
   

  	
  100
  ordinary shares issued to S2 Global, Inc.

  	
   

  	
  100%
  (S2 Global, Inc.)

  
	
  S2
  Services Puerto Rico, LLC

  	
   

  	
  100
  units issued to S2 Services, Ltd.

  	
   

  	
  100%
  (S2 Services, Ltd.)

  



 


4

















 


Schedule 3.16


Intellectual Property


 


 


Dolphin
Medical, Inc.


 


Trademarks:          None


 


Patents:


Issued
Patents


 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  OPTICALLY
  STABLIZED INFRARED ENERGY DETECTOR

  	
   

  	
  5081998

  	
   

  	
  1/21/92

  
	
  SHUTTERLESS
  OPTICALLY STABLIZED CAPNOGRAPH

  	
   

  	
  5095913

  	
   

  	
  3/17/93

  
	
  NON
  INVASIVE OXIMETER PROBE

  	
   

  	
  5217012

  	
   

  	
  6/8/93

  
	
  REGULATED
  INFRARED SOURCE

  	
   

  	
  5247185

  	
   

  	
  9/21/93

  
	
  A
  METHOD OF SELECTING AN OPTICAL FILTER FOR A SHUTTERLESS OPTICALLY STABILIZE
  CAMPOGRAPH

  	
   

  	
  5281817

  	
   

  	
  1/25/94

  
	
  SIDESTREAM
  INFRARED GAS ANALYZER REQUIRING SMALL SAMPLE

  	
   

  	
  5282473

  	
   

  	
  2/1/94

  
	
  SHUTTERLESS
  MAINSTREAM DISCRIMINATING ANESTHETIC AGENT ANALYZER

  	
   

  	
  5296706

  	
   

  	
  3/22/94

  
	
  OXIMETER
  ESOPHAGEAL PROBE

  	
   

  	
  5329922

  	
   

  	
  7/19/94

  
	
  NON-INVASIVE
  OXIMETER PROBE

  	
   

  	
  5368025

  	
   

  	
  11/29/94

  
	
  APPARATUS
  FOR DETERMINING SPECTRAL ABSORPTION BY A SPECIFIC SUBSTANCE IN A FLUID

  	
   

  	
  5429129

  	
   

  	
  7/4/95

  
	
  AUDITORY
  ALARMS FOR PHYSIOLOGICAL DATA MONITORING

  	
   

  	
  6947780

  	
   

  	
  9/20/05

  
	
  SEPARATING
  MOTION FROM CARDIAC SIGNALS USING SECOND ORDER DERIVATIVE OF THE
  PHOTO-PLETHYSMOGRAM AND FAST FOURIER TRANSFORMS

  	
   

  	
  7020507

  	
   

  	
  3/28/06

  
	
  RECTAL
  PROBE

  	
   

  	
  D384412

  	
   

  	
  9/30/97

  
	
  ANATOMICAL
  PROBE ATTACHMENT

  	
   

  	
  D387862

  	
   

  	
  12/16/97

  



 
















 


Pending
Applications


 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  SEPARATING
  MOTION FROM CARDIAC SIGNALS USING SECOND ORDER DERIVATIVE OF THE
  PHOTOPLETHYSMOGRAM AND FAST FOURIER TRANSFORMS

  	
   

  	
  11343914

  	
   

  	
  1/30/06

  
	
  DEVICES
  AND METHODS FOR THE ANNOTATION OF PHYSIOLOGICAL DATA WITH ASSOCIATED
  OBSERVATIONAL DATA

  	
   

  	
  12817183

  	
   

  	
  6/17/10

  



 


	
  Copyrights:

  	
  None

  



 


Ferson
Technologies, Inc


 


	
  Trademarks:

  	
  None

  
	
   

  	
   

  
	
  Patents:

  	
  None

  
	
   

  	
   

  
	
  Copyrights:

  	
  None

  



 


Metorex
Security Products, Inc.


 


	
  Trademarks:

  	
  None

  
	
  Patents:  None

  	
   

  
	
  Copyrights:

  	
  None

  



 


OSI
Defense Systems, LLC


 


	
  Trademarks:

  	
  None

  



 


Patents:


Issued
Patents


 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  FREQUENCY
  STABLIZED HO:YAG LASER (50% ownership)

  	
   

  	
  5099486

  	
   

  	
  3/24/92

  
	
  OBJECT
  SENSOR AND METHOD FOR USE IN CONTROLLING AN AGRICULTURAL SPRAYER

  	
   

  	
  5278423

  	
   

  	
  1/11/94

  
	
  ACTIVE
  NEAR-FIELD OBJECT SENSOR AND METHOD EMPLOYING OBJECT CLASSIFICATION
  TECHNIQUES

  	
   

  	
  5321490

  	
   

  	
  6/14/94

  
	
  HELICOPTER
  OBSTACLE WARNING SYSTEM

  	
   

  	
  5371581

  	
   

  	
  12/6/94

  
	
  INTELLIGENT
  VEHICLE HIGHWAY SYSTEM SENSOR AND METHOD

  	
   

  	
  5546188

  	
   

  	
  8/13/96

  
	
  LASER
  RANGE CAMERA

  	
   

  	
  5682229

  	
   

  	
  10/28/97

  
	
  INTELLIGENT
  VEHICLE HIGHWAY SYSTEM SENSOR AND METHOD

  	
   

  	
  5757472

  	
   

  	
  5/26/08

  



 

















 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  INTELLIGENT
  VEHICLE HIGHWAY SYSTEM MULYI-LANE SENSOR AND METHOD

  	
   

  	
  5793491

  	
   

  	
  8/11/98

  
	
  INTELLIGENT
  VEHICLE HIGHWAY SYSTEM SENSOR AND METHOD

  	
   

  	
  5896190

  	
   

  	
  4/20/99

  
	
  VEHICLE
  CLASSIFICATION AND AXLE COUNTING SENSOR SYSTEM AND METHOD

  	
   

  	
  6304321

  	
   

  	
  10/16/01

  



 


Copyrights:


 


	
  Title

  	
   

  	
  Registration

  No.

  	
   

  	
  Registration

  Date

  
	
  LTE2059
  — CONTROLLER DEVICE

  	
   

  	
  TX6146609

  	
   

  	
  5/9/05

  
	
  AM1000-MAN
  WORN HARNESS DECODER

  	
   

  	
  TX6146610

  	
   

  	
  5/9/05

  



 


OSI
Electronics, Inc.


 


	
  Trademarks:

  	
  None

  
	
   

  	
   

  
	
  Patents:

  	
  None

  
	
   

  	
   

  
	
  Copyrights:

  	
  None

  



 


OSI
Optoelectronics, Inc.


 


	
  Trademarks:

  	
  None

  



 


Patents:


Issued
Patents


 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  DISPOSABLE
  ANTI-FOG AIRWAY ADAPTER

  	
   

  	
  6095986

  	
   

  	
  8/1/00

  
	
  APPARATUS
  FOR SECURING AN OXIMETER PROBE TO A PATIENT

  	
   

  	
  6385821

  	
   

  	
  5/14/02

  
	
  HIGH
  SPEED SILICON PHOTODIODES AND METHOD OF MANUFACTURE

  	
   

  	
  6593636

  	
   

  	
  7/15/03

  
	
  VEHICLE
  SAFETY AND SECURITY SYSTEM

  	
   

  	
  6625553

  	
   

  	
  9/23/03

  
	
  VEHICLE
  SAFETY AND SECURITY SYSTEM

  	
   

  	
  6629050

  	
   

  	
  9/30/03

  
	
  APPARATUS
  AND METHOD FOR SECURING AN OXIMETER PROBE TO A PATIENT

  	
   

  	
  6681454

  	
   

  	
  1/27/04

  
	
  POSTION
  SENSING DETECTOR FOR THE DETECTION OF LIGHT WITHIN TWO DIMENSIONS

  	
   

  	
  6815790

  	
   

  	
  11/9/04

  
	
  FRONT
  ILLUMINATED BACK SIDE CONTACT THIN WAFER DETECTORS

  	
   

  	
  7057254

  	
   

  	
  6/6/06

  
	
  THIN
  WAFER DETECTORS WITH IMPROVED RADIATION AND CROSSTALK 

  	
   

  	
  7242069

  	
   

  	
  7/10/07

  



 

















 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  CHARACTERISTICS

  	
   

  	
   

  	
   

  	
   

  
	
  PHOTODIODE
  WITH CONTROLLED CURRENT LEAKAGE

  	
   

  	
  7256470

  	
   

  	
  8/14/07

  
	
  EDGE
  ILLUMINATED PHOTODIODES

  	
   

  	
  7279731

  	
   

  	
  10/9/07

  
	
  PHOTIDIODE
  WITH CONTROLLED CURRENT LEAKAGE

  	
   

  	
  7470966

  	
   

  	
  12/30/08

  
	
  DEEP
  DIFFUSED THIN PHOTODIODES

  	
   

  	
  7576369

  	
   

  	
  8/18/09

  
	
  FRONTSIDE
  ILLUMINATED BACK SIDE CONTACT THIN WAFER DETECTORS

  	
   

  	
  7579666

  	
   

  	
  8/25/09

  
	
  HIGH
  DENSITY PHOTODIODES

  	
   

  	
  7655999

  	
   

  	
  2/2/10

  
	
  FRONT-SIDE
  ILLUMINATED, BACK-SIDE CONTACT, DOUBLE-SIDED PN-JUNCTION ARRAY

  	
   

  	
  7656001

  	
   

  	
  2/2/10

  
	
  PHOTODIODE &
  PHOTODIODE ARRAY WITH IMPROVED PERFORMANCE CHARACTERISTICS

  	
   

  	
  7709921

  	
   

  	
  5/4/10

  
	
  EDGE
  ILLUMINATED PHOTODIODES

  	
   

  	
  7728367

  	
   

  	
  6/1/10

  



 


Pending
Applications:


 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  THIN
  WAFER DETECTORS WITH IMPROVED RADIATION AND CROSSTALK CHARACTERISTICS
  (FISHBONE STRUCTURE)

  	
   

  	
  11081366

  	
   

  	
  316/05

  
	
  LOW
  CROSSTALK, FRONTSIDE ILLUMINATED, BACKSIDE CONTACT PHOTODIODE ARRAY

  	
   

  	
  11422246

  	
   

  	
  6/5/06

  
	
  THIN
  ACTIVE LAYER FISHBONE PHOTODIODE AND METHOD OF MANUFACTURING THE SAME

  	
   

  	
  11744908

  	
   

  	
  5/4/07

  
	
  PHODIDIODE
  WITH CONTROLLED CURRENT LEAKAGE

  	
   

  	
  12325304

  	
   

  	
  12/1/08

  
	
  DEEP
  DIFFUSED THIN PHOTODIODES

  	
   

  	
  12499203

  	
   

  	
  7/8/09

  
	
  FRONTSIDE
  ILLUMINATED BACK SIDE CONTACT THIN WAFER DETECTORS

  	
   

  	
  12505610

  	
   

  	
  7/20/09

  
	
  THIN
  ACTIVE LAYER FISHBONE PHOTODIODE AND METHOD OF MANUFACTURING THE SAME

  	
   

  	
  12559498

  	
   

  	
  9/15/09

  
	
  FRONTSIDE
  ILLUMINATED BACK SIDE CONTACT THIN WAFER DETECTORS

  	
   

  	
  12637529

  	
   

  	
  12/14/09

  
	
  HIGH
  DENSITY PHOTODIODES

  	
   

  	
  12637557

  	
   

  	
  12/14/09

  
	
  WAVELENGTH
  SENSITIVE SENSOR PHOTODIODES

  	
   

  	
  12689349

  	
   

  	
  1/19/10

  
	
  HIGH
  SPEED BACKSIDE ILLUMINATED, FRONT SIDE CONTACT PHOTODIODE ARRAY

  	
   

  	
  12709621

  	
   

  	
  2/22/10

  
	
  PHOTODIODES
  WITH PN JUNCTION ON BOTH FRONT AND BACK SIDES

  	
   

  	
  12722685

  	
   

  	
  3/12/10

  
	
  PHOTODIODE
  AND PHOTODIODE ARRAY WITH IMPROVED PERFORMANCE CHARCTERISTICS

  	
   

  	
  12723672

  	
   

  	
  3/4/10

  
	
  EDGE
  ILLUMINATED PHOTODIODES

  	
   

  	
  12760342

  	
   

  	
  4/14/10

  



 

















 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  TETRA-LATERAL
  POSITION SENSING DETECTOR

  	
   

  	
  12774958

  	
   

  	
  5/6/10

  



 


	
  Copyrights:

  	
  None

  



 


OSI
Systems, Inc.


 


	
  Trademarks:

  	
  None

  
	
  Patents:  

  	
  None

  
	
  Copyrights:

  	
  None

  



 


Osteometer
Meditech, Inc.


 


Trademarks:


 


	
  Mark

  	
   

  	
  Registration

  No.

  	
   

  	
  Registration

  Date

  
	
  DEXACARE

  	
   

  	
  3631134

  	
   

  	
  6/2/09

  
	
  DEXAWARE

  	
   

  	
  3631139

  	
   

  	
  6/2/09

  
	
  “O” &
  Design

  	
   

  	
  3836732

  	
   

  	
  8/24/10

  
	
  Osteometer

  	
   

  	
  3836734

  	
   

  	
  8/24/10

  



 


Pending
Application:


None


 


Patents:


Issued
Patents


 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  BONE
  DENSIOMETRY APPARATUS

  	
   

  	
  6058157

  	
   

  	
  5/2/00

  
	
  METHODS
  AND APPARATUS FOR EVALUATION OF BONE CONDITION

  	
   

  	
  6086538

  	
   

  	
  7/11/00

  
	
  DIAGNOSTIC
  IMAGING IN RELATION TO ARTHRITIC CONDITIONS

  	
   

  	
  6405068

  	
   

  	
  6/11/02

  



 


Pending
Application


 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  INTEGRATED
  PROTOCOL FOR DIAGNOSIS, TREATMENT, AND PREVENTION OF BONE MASS 

  	
   

  	
  10/623,466

  	
   

  	
  07/18/2003

  



 

















 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  DEGRADATION

  	
   

  	
   

  	
   

  	
   

  
	
  APPARATUS
  FOR BONE DENSITY ASSESSMENT AND MONITORING

  	
   

  	
  12/463,325

  	
   

  	
  5/8/2009

  
	
  X-RAY
  APPARATUS FOR BONE DENSITY ASSESSMENT AND MONITORING

  	
   

  	
  12/621,784

  	
   

  	
  11/19/09

  



 


Copyrights:           None


 


Rapiscan
Systems, Inc.


 


Trademarks:


 


	
  Mark

  	
   

  	
  Registration

  No.

  	
   

  	
  Registration

  Date

  
	
  SECURE
  1000

  	
   

  	
  1769161

  	
   

  	
  5/4/93

  
	
  RAPISCAN

  	
   

  	
  3642079

  	
   

  	
  6/23/09

  
	
  Auto-Z

  	
   

  	
  3750397

  	
   

  	
  2/16/10

  



 


Pending
Application:


 


	
  Mark

  	
   

  	
  Serial No.

  	
   

  	
  Application

  Date

  
	
  CABSCAN

  	
   

  	
  77956027

  	
   

  	
  3/10/10

  
	
  RTT

  	
   

  	
  85050741

  	
   

  	
  5/28/10

  
	
  REAL
  TIME TOMOGRAPHY

  	
   

  	
  85050742

  	
   

  	
  5/28/10

  



 


Patents:


 


Issued
Patents


 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  X-RAY
  BACKSCATTER DETECTION SYSTEM

  	
   

  	
  5181234

  	
   

  	
  1/19/93

  
	
  X-RAY
  BACKSCATTER IMAGING SYSTEM INCLUDING MOVING BODY TRACKING ASSEMBLY

  	
   

  	
  6094472

  	
   

  	
  7/25/00

  
	
  METHOD
  AND APPARATUS FOR PHYSICAL CHARACTERISTICS DISCRIMINATION OF OBJECTS USING A
  LIMITED VIEW THREE DIMENSIONAL RECONSTRUCTION

  	
   

  	
  6473487

  	
   

  	
  10/29/02

  
	
  RELOCATABLE
  X-RAY IMAGING SYSTEM AND METOD FOR INSPECTING VEHICLES AND CONTAINERS

  	
   

  	
  6542580

  	
   

  	
  4/1/03

  
	
  AUTO-REJECT
  UNIT

  	
   

  	
  6653588

  	
   

  	
  11/25/03

  
	
  X-RAY
  IMAGING SYSTEM WITH ACTIVE DETECTOR

  	
   

  	
  6665373

  	
   

  	
  12/16/03

  
	
  AUTOMATIC
  REJECT UNIT SPACER AND 

  	
   

  	
  6812426

  	
   

  	
  11/2/04

  



 
















 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  DIVERTER

  	
   

  	
   

  	
   

  	
   

  
	
  GENERATION
  AND DISTRIBUTION OF ANNOTATION OVERLAYS OF DIGITAL X-RAY IMAGES FOR SECURITY
  SYSTEMS

  	
   

  	
  6839403

  	
   

  	
  1/4/05

  
	
  SELF-CONTAINED
  PORTABLE INSPECTION SYSTEM AND METHOD

  	
   

  	
  6843599

  	
   

  	
  1/18/05

  
	
  RELOCATABLE
  X-RAY IMAGING SYSTEM AND METHOD FOR INSPECTING COMMERCIAL VEHICLES AND CARGO
  CONTAINERS

  	
   

  	
  6928141

  	
   

  	
  8/9/05

  
	
  NUCLEAR
  QUADRUPOLE RESONANCE BASED INSPECTION SYSTEM USING A HIGHLY RESONANT AND
  COMPACT MAGNETIC STRUCTURE

  	
   

  	
  7049814

  	
   

  	
  5/23/06

  
	
  Q-FACTOR
  SWITCHING METHOD AND APPARATUS FOR DETECTING NUCLEAR QUADRUPOLE AND NUCLEAR
  MAGNETIC RESONANCE SIGNALS

  	
   

  	
  7109714

  	
   

  	
  9/19/2006

  
	
  X-RAY
  DETECTOR SYSTEM HAVING LOW Z MATERIAL PANEL

  	
   

  	
  7110493

  	
   

  	
  9/19/06

  
	
  IMPROVEMENTS
  FOR NUCLEAR QUADRUPOLE RESONANCE MEASUREMENTS

  	
   

  	
  7218105

  	
   

  	
  5/15/2007

  
	
  PROBE
  COIL FOR DETECTING NQR-RESPONSIVE MATERIALS IN LARGE VOLUMES

  	
   

  	
  7250763

  	
   

  	
  7/31/2007

  
	
  A
  METHOD AND SYSTEM FOR CERTIFYING OPERATORS OF X-RAY INSPECTION SYSTEMS

  	
   

  	
  7257189

  	
   

  	
  8/14/07

  
	
  PULSE
  SEQUENCES FOR EXCITING NUCLEAR QUADRUPOLE RESONANCE

  	
   

  	
  7282913

  	
   

  	
  10/16/2007

  
	
  SINGLE
  BOOM CARGO SCANNING SYSTEM GARDS

  	
   

  	
  7322745

  	
   

  	
  1/29/08

  
	
  PULSE
  SEQUENCES FOR EXCITING NUCLEAR QUADRUPOLE RESONANCE

  	
   

  	
  7355400

  	
   

  	
  4/8/2008

  
	
  METHODS
  AND SYSTEMS FOR THE RAPID DETECTION OF CONCEALED OBJECTS USING FLUORESCENCE

  	
   

  	
  7366282

  	
   

  	
  4/29/08

  
	
  GARDS
  TRIPLE FOLDING BOOM

  	
   

  	
  7369643

  	
   

  	
  5/6/08

  
	
  METHODS
  AND SYSTEMS FOR THE RAPID DETECTION OF CONCEALED OBJECTS BANTAM — DUAL STAGE
  WITH MICROWAVE

  	
   

  	
  7417440

  	
   

  	
  8/26/08

  
	
  INTEGRATED
  CARRY-ON BAGGAGE CART AND PASSENGER SCREENING STATION

  	
   

  	
  7418077

  	
   

  	
  8/26/08

  
	
  X-RAY
  SYSTEM HAVING IMPROVED WEATHER 

  	
   

  	
  7471764

  	
   

  	
  12/30/08

  



 

















 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  RESISTANCE

  	
   

  	
   

  	
   

  	
   

  
	
  RELOCATABLE
  X-RAY IMAGING SYSTEM AND METHOD FOR INSPECTING COMMERCIAL VEHICLES AND CARGO
  CONTAINERS - A-FRAME

  	
   

  	
  7483510

  	
   

  	
  1/27/09

  
	
  SELF-CONTAINED
  MOBILE INSPECTION SYSTEM

  	
   

  	
  7486768

  	
   

  	
  2/9/09

  
	
  METHOD
  AND SYSTEM FOR CERTIFYING OPERATORS OF X-RAY INSPECTION SYSTEMS

  	
   

  	
  7505557

  	
   

  	
  3/17/09

  
	
  SINGLE
  BOOM CARGO SCANNING SYSTEM GaRDS

  	
   

  	
  7517149

  	
   

  	
  4/14/09

  
	
  GARDS
  TRIPLE FOLDING BOOM

  	
   

  	
  7519148

  	
   

  	
  4/14/09

  
	
  MULTIPLE
  PASS CARGO INSPECTION SYSTEM

  	
   

  	
  7526064

  	
   

  	
  4/28/09

  
	
  METHODS
  AND SYSTEMS FOR THE RAPID DETECTION OF CONCEALED OBJECTS BANTAM — DUAL STAGE
  WITH MICROWAVE

  	
   

  	
  7579845

  	
   

  	
  8/25/09

  
	
  INTEGRATED
  CARRY-ON BAGGAGE CART AND PASSENGER SCREENING STATION

  	
   

  	
  7660388

  	
   

  	
  2/9/10

  
	
  SELF-CONTAINED
  MOBILE INSPECTION SYSTEM GaRDS

  	
   

  	
  7720195

  	
   

  	
  4/28/10

  
	
  RELOCATABLE
  X-RAY IMAGING SYSTEM AND METHOD FOR INSPECTING COMMERCIAL VEHICLES AND CARGO
  CONTAINERS - A-FRAME

  	
   

  	
  7769133

  	
   

  	
  8/3/10

  
	
  CARGO
  SCANNING SYSTEM

  	
   

  	
  7783004

  	
   

  	
  8/24/10

  
	
  X-RAY
  SYSTEM HAVING INPROVED WEATHER RESISTANCE

  	
   

  	
  7783005

  	
   

  	
  8/24/10

  
	
  PERSONNEL
  SECURITY SCREENING SYSTEM WITH ENHANCED PRIVACY

  	
   

  	
  7796733

  	
   

  	
  9/14/10

  



 


Pending
Applications


 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  SYSTEM
  AND METHOD FOR IMPROVING THE ANALYSIS OF CHEMICAL SUBSTANCES USING NQR

  	
   

  	
  11914513

  	
   

  	
  8/5/2008

  
	
  METHODS
  AND SYSTEMS FOR THE RAPID DETECTION OF CONCEALED OBJECTS USING FLUORESCENCE

  	
   

  	
  12047472

  	
   

  	
  3/13/08

  
	
  SYSTEMS
  AND METHODS FOR IMPROVING DIRECTED PEOPLE SCREENING

  	
   

  	
  12142978

  	
   

  	
  6/20/08

  
	
  MULTIPLE
  SCREEN DETECTION SYSTEM

  	
   

  	
  12262631

  	
   

  	
  10/31/08

  
	
  ROTATABLE
  BOOM CARGO SCANNING SYSTEM

  	
   

  	
  12339591

  	
   

  	
  12/19/08

  
	
  IMPROVED
  SECURITY SYSTEM FOR SCREENING PEOPLE

  	
   

  	
  12344162

  	
   

  	
  12/24/08

  
	
  METHOD
  AND SYSTEM FOR CERTIFYING OPERATORS OF X-RAY INSPECTION SYSTEMS

  	
   

  	
  12365294

  	
   

  	
  2/4/09

  



 

















 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  GARDS
  TRIPLE FOLDING BOOM

  	
   

  	
  12395760

  	
   

  	
  3/2/09

  
	
  SINGLE
  BOOM CARGO SCANNING SYSTEM GaRDS

  	
   

  	
  12396568

  	
   

  	
  3/3/09

  
	
  MULTIPLE
  PASS CARGO INSPECTION SYSTEM

  	
   

  	
  12404913

  	
   

  	
  3/16/09

  
	
  SYSTEM
  AND METHOD FOR USING AN INTENSITY_MODULATED X-RAY SOURCE

  	
   

  	
  12484172

  	
   

  	
  6/12/09

  
	
  METHODS
  AND SYSTEMS FOR THE RAPID DETECTION OF CONCEALED OBJECTS

  	
   

  	
  12505659

  	
   

  	
  7/20/09

  
	
  INTEGRATED
  CARRY-ON BAGGAGE CART AND PASSENGER SCREENING STATION

  	
   

  	
  12643021

  	
   

  	
  12/21/09

  
	
  X-RAY
  SECURITY INSPECTION MACHINE

  	
   

  	
  12715463

  	
   

  	
  3/2/10

  
	
  SELF-CONTAINED
  MOBILE INSPECTION SYSTEM GARDS

  	
   

  	
  12753976

  	
   

  	
  4/5/10

  
	
  SYSTEMS
  AND METHODS FOR AUTOMATED, RAPID DETECTION OF HIGH ATOMIC NUMBER MATERIALS

  	
   

  	
  12780910

  	
   

  	
  5/16/10

  
	
  COMPACT
  CARGO MOBILE SCANNING SYSTEM

  	
   

  	
  12784465

  	
   

  	
  5/21/10

  
	
  COMPACT
  CARGO MOBILE SCANNING SYSTEM

  	
   

  	
  12784630

  	
   

  	
  5/21/10

  
	
  RELOCATABLE
  X-RAY IMAGING SYSTEM AND METHOD FOR INSPECTING COMMERCIAL VEHICLES AND CARGO
  CONTAINERS (A-FRAME)

  	
   

  	
  12822183

  	
   

  	
  6/24/10

  
	
  FOUR-SIDED
  IMAGING

  	
   

  	
  12834890

  	
   

  	
  7/12/10

  
	
  CARGO
  SCANNING SYSTEM

  	
   

  	
  12848977

  	
   

  	
  8/2/10

  
	
  X-RAY
  SYSTEM HAVING IMPROVED WEATHER RESISTANCE

  	
   

  	
  12848985

  	
   

  	
  8/2/10

  
	
  PERSONNEL
  SECURITY SCREENING SYSTEM WITH ENHANCED PRIVACY

  	
   

  	
  12849987

  	
   

  	
  8/4/10

  
	
  METHOD
  AND SYSTEM FOR EXTRACTING SPECTROSCOPIC INFORMATION FROM IMAGES AND WAVEFORMS

  	
   

  	
  12850595

  	
   

  	
  8/4/10

  
	
  DRIVE-THROUGH
  SCANNING SYSTEMS

  	
   

  	
  12919482

  	
   

  	
  8/26/10

  
	
  MOBILE
  SCANNING SYSTEMS

  	
   

  	
  12919483

  	
   

  	
  8/26/10

  
	
  SCANNING
  SYSTEMS

  	
   

  	
  12919484

  	
   

  	
  8/26/10

  
	
  SCANNING
  SYSTEMS

  	
   

  	
  12919485

  	
   

  	
  8/26/10

  
	
  SCANNING
  SYSTEMS

  	
   

  	
  12919486

  	
   

  	
  8/26/10

  



 


Copyrights:           None


 


Rapiscan
Laboratories, Inc.


 


Trademarks:


 

















 


	
  Mark

  	
   

  	
  Registration

  No.

  	
   

  	
  Registration

  Date

  
	
  Design
  Only

  	
   

  	
  1258431

  	
   

  	
  11/22/83

  
	
  TNA

  	
   

  	
  1694076

  	
   

  	
  6/16/92

  
	
  EAGLE

  	
   

  	
  2375816

  	
   

  	
  8/8/00

  
	
  ARACOR

  	
   

  	
  2997332

  	
   

  	
  9/20/05

  
	
  Design

  	
   

  	
  3003852

  	
   

  	
  10/4/05

  



 


Patents:


Issued
Patents


 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  EXPLOSIVE
  DETECTION SYSTEM

  	
   

  	
  5006299

  	
   

  	
  4/9/91

  
	
  CONTRABAND
  DETECTION SYSTEM USING DIRECT IMAGING PULSED FAST NEUTRONS

  	
   

  	
  5076993

  	
   

  	
  12/31/91

  
	
  MULTI-SENSOR
  EXPLOSIVE DETECTION SYSTEM

  	
   

  	
  5078952

  	
   

  	
  1/7/92

  
	
  APPARATUS
  AND METHOD FOR DETECTING CONTRABAND USING FAST NEUTRON ACTIVATION

  	
   

  	
  5098640

  	
   

  	
  3/24/92

  
	
  EXPLOSIVE
  DETECTION SYSTEM

  	
   

  	
  5114662

  	
   

  	
  5/19/92

  
	
  MULTI-SENSOR
  EXPLOSIVE DETECTION SYSTEM USING AN ARTIFICIAL NEURAL SYSTEM

  	
   

  	
  5153439

  	
   

  	
  10/6/92

  
	
  COMPOSITE
  CAVITY STRUCTURE FOR AN EXPLOSIVE DETECTION SYSTEM

  	
   

  	
  5162096

  	
   

  	
  11/10/92

  
	
  COMPOSITE
  CAVITY STRUCTURE FOR AN EXPLOSIVE DETECTION SYSTEM

  	
   

  	
  5388128

  	
   

  	
  2/7/95

  
	
  STRADDLE
  INSPECTION SYSTEM

  	
   

  	
  5638420

  	
   

  	
  6/10/97

  
	
  SINGLE
  BEAM PHOTONEUTRON PROBE AND X-RAY IMAGING SYSTEM FOR CONTRABAND DETECTION AND
  IDENTIFICATION

  	
   

  	
  5838759

  	
   

  	
  11/17/98

  
	
  COMBINATORIAL
  MATERIAL ANALYSIS USING X-RAY CAPILLARY OPTICS

  	
   

  	
  6577705

  	
   

  	
  6/10/03

  



 


Copyrights:


none


 


Spacelabs
Healthcare, Inc.


 


	
  Trademarks:

  	
  None

  
	
   

  	
   

  
	
  Patents:

  	
  None

  
	
   

  	
   

  
	
  Copyrights:

  	
  None

  



 


Spacelabs
Healthcare, LLC


 

















 


Registered
Marks


 


	
  Mark

  	
   

  	
  Registration

  No.

  	
   

  	
  Registration

  Date

  
	
  ELECTROCARDIOCORDER

  	
   

  	
  0726041

  	
   

  	
  3/21/61

  
	
  ARRHYTHMIAGRAPH

  	
   

  	
  0730495

  	
   

  	
  4/24/62

  
	
  TRENDSETTER

  	
   

  	
  1191101

  	
   

  	
  3/2/89

  
	
  SPACELABS

  	
   

  	
  1320540

  	
   

  	
  2/19/85

  
	
  CUFF-R-ALL

  	
   

  	
  1584492

  	
   

  	
  2/27/90

  
	
  FLEXPORT

  	
   

  	
  1615577

  	
   

  	
  10/2/90

  
	
  MPA

  	
   

  	
  1624654

  	
   

  	
  11/27/90

  
	
  TRU-LINK

  	
   

  	
  1844284

  	
   

  	
  7/12/94

  
	
  TRU-CUFF

  	
   

  	
  1896885

  	
   

  	
  5/30/95

  
	
  DIGICORDER

  	
   

  	
  1938344

  	
   

  	
  11/28/95

  
	
  VARITREND

  	
   

  	
  1961937

  	
   

  	
  3/12/96

  
	
  CVSCAN

  	
   

  	
  1961970

  	
   

  	
  3/12/96

  
	
  SPACELABS
  MEDICAL

  	
   

  	
  1993012

  	
   

  	
  8/13/96

  
	
  WINDNA

  	
   

  	
  2019802

  	
   

  	
  11/26/96

  
	
  IMPRESARIO

  	
   

  	
  2565605

  	
   

  	
  4/30/02

  
	
  Design

  	
   

  	
  2841420

  	
   

  	
  5/11/04

  
	
  Design

  	
   

  	
  2841421

  	
   

  	
  5/11/04

  
	
  HEART CRICKET

  	
   

  	
  2899873

  	
   

  	
  11/2/04

  
	
  DEL MAR REYNOLDS MEDICAL

  	
   

  	
  2993160

  	
   

  	
  9/6/05

  
	
  ULTRAVIEW
  SL

  	
   

  	
  3143032

  	
   

  	
  9/12/06

  
	
  CARDIOGUARD

  	
   

  	
  3249521

  	
   

  	
  6/5/07

  
	
  INNOVATOR

  	
   

  	
  3249675

  	
   

  	
  6/5/07

  
	
  CARDIOEXPRESS

  	
   

  	
  3249682

  	
   

  	
  6/5/07

  
	
  INTESYS

  	
   

  	
  3549710

  	
   

  	
  12/23/08

  
	
  ARIA

  	
   

  	
  3691576

  	
   

  	
  10/6/09

  
	
  ELANCE

  	
   

  	
  3715841

  	
   

  	
  11/24/09

  



 


Pending
Applications


 


	
  Mark

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  ZEN

  	
   

  	
  77472506

  	
   

  	
  5/12/08

  
	
  MANLEY

  	
   

  	
  77675856

  	
   

  	
  2/23/09

  
	
  SENTINEL

  	
   

  	
  77737481

  	
   

  	
  5/14/09

  
	
  LIFECARD

  	
   

  	
  77789420

  	
   

  	
  7/24/09

  
	
  CARDIOCALL

  	
   

  	
  77792759

  	
   

  	
  7/29/09

  
	
  CARDIODIRECT

  	
   

  	
  77792772

  	
   

  	
  7/29/09

  
	
  LIFESCREEN

  	
   

  	
  77793204

  	
   

  	
  7/30/09

  
	
  PACER
  ANALYZER

  	
   

  	
  77793353

  	
   

  	
  7/30/09

  
	
  VOYAGER

  	
   

  	
  78893508

  	
   

  	
  5/25/06

  



 


Canadian
Trademarks


 
















 


Registered
Marks


 


	
  Mark

  	
   

  	
  Registration

  No.

  	
   

  	
  Registration

  Date

  
	
  SPACELABS

  	
   

  	
  TMA309559

  	
   

  	
  12/20/85

  
	
  FLEXPORT

  	
   

  	
  TMA391176

  	
   

  	
  12/6/91

  
	
  NEOCHART

  	
   

  	
  TMA462822

  	
   

  	
  8/30/96

  
	
  SPACELABS
  MEDICAL

  	
   

  	
  TMA613563

  	
   

  	
  6/23/04

  



 


Patents:


Issued
Patent


 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  SCREEN
  DISPLAY FOR A MEDICAL MONITOR

  	
   

  	
  D389133

  	
   

  	
  1/13/98

  
	
  METHOD
  AND APPARATUS FOR HOLTER RECORDING WITH HI RESOLUTION SIGNAL AVERAGING
  CAPABILITY FOR LPA

  	
   

  	
  5205295

  	
   

  	
  4/27/93

  
	
  APPLICATION
  SPECIFIC INTEGRATED CIRCUIT FOR PHYSIOLOGICAL MONITORING

  	
   

  	
  5231990

  	
   

  	
  8/3/93

  
	
  DYNAMIC
  ST SEGMENT ESTIMATION AND ADJUSTMENT

  	
   

  	
  5323783

  	
   

  	
  6/28/94

  
	
  STORAGE
  DEVICE WITH POSITIVE DISPLACEMENT DISPENSER BY MEANS OF EGRESS THROUGH A
  PIERCED SEPTEM

  	
   

  	
  5350366

  	
   

  	
  9/27/94

  
	
  FAST
  RESPONSE LOW-PASS FILTER

  	
   

  	
  5463346

  	
   

  	
  10/31/95

  
	
  METHOD
  AND SYSTEM FOR CUSTOMIZING THE DISPLAY OF PATIENT PHYSIOLOGICAL PARAMETERS ON
  A MEDICAL MONITOR

  	
   

  	
  5473536

  	
   

  	
  12/5/95

  
	
  METHOD
  AND SYSTEM FOR PROVIDING SAFE PATIENT MONITORING IN AN ELECTRONIC MEDICAL
  DEVICE WHILE SERVING AS A GENRAL-PURPOSE WINDOWED DISPLAY

  	
   

  	
  5482050

  	
   

  	
  1/9/96

  
	
  METHOD
  AND APPARATUS FOR EXCLUDING ARTIFACTS FROM AUTOMATIC BLOOD PRESSURE
  MEASUREMENTS

  	
   

  	
  5505206

  	
   

  	
  4/9/96

  
	
  METHOD
  AND APPARATUS FOR STORING AND MIXING A PLURALITY OF FLUIDS AND BODY FLUID
  SAMPLING CARTRIDGE USING SAME

  	
   

  	
  5511880

  	
   

  	
  4/30/96

  
	
  TOUCH
  SCREEN HAVING REDUCED SENSITIVITY TO SPURIOUS SELECTIONS

  	
   

  	
  5515083

  	
   

  	
  5/7/96

  
	
  METHOD
  AND APPARATUS FOR DISPLAYING PACER SIGNALS ON AN ECG

  	
   

  	
  5540232

  	
   

  	
  7/30/96

  
	
  ENHANCEMENT
  OF PHYSIOLOGICAL SIGNALS USING FRACTAL ANALYSIS

  	
   

  	
  5588427

  	
   

  	
  12/31/96

  
	
  DIGITAL
  HIGH-PASS FILTER HAVING BASELINE 

  	
   

  	
  5615234

  	
   

  	
  3/25/97

  



 

















 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  RESTORATION
  MEANS

  	
   

  	
   

  	
   

  	
   

  
	
  ALIGNMENT
  GUIDE SYSTEM FOR TRANSMISSIVE PULSE OXIMETRY SENSORS

  	
   

  	
  5680857

  	
   

  	
  10/28/97

  
	
  METHOD
  AND SYSTEM FOR FLEXIBLY ORGANIZING RECORDING ANDDISPLAYING MEDICAL PATIENT
  CARE INFORMATION USING FIELDS IN A FLOWSHEET

  	
   

  	
  5682526

  	
   

  	
  10/28/97

  
	
  SYSTEM
  AND METHOD FOR THE ALGEBRAIC DERIVATION OF PHYSIOLOGICAL SIGNALS

  	
   

  	
  5687722

  	
   

  	
  11/18/97

  
	
  DATA
  PROCESSING SYSTEMS AND METHODS FOR PULSE OXIMETERS

  	
   

  	
  5692505

  	
   

  	
  12/2/97

  
	
  MODULAR
  PHYSIOLOGICAL COMPUTER RECORDER

  	
   

  	
  5701894

  	
   

  	
  12/30/97

  
	
  METHOD
  AND SYSTEM FOR CONSTRUCTING FORMULAE PROCESING MEDICAL DATA

  	
   

  	
  5715451

  	
   

  	
  2/3/98

  
	
  CONFROMAL
  PULSE OXIMETRY SENSOR AND MONITOR

  	
   

  	
  5817008

  	
   

  	
  10/6/98

  
	
  WIRELESS
  OPTICAL PATIENT MONITORING APPARATUS

  	
   

  	
  5865733

  	
   

  	
  2/2/99

  
	
  NON-INVASIVE
  UTERINE ACTIVITY SENSOR

  	
   

  	
  5879293

  	
   

  	
  3/9/99

  
	
  WIRELESS
  PATIENT MONITORING APPARATUS USING INDUCTIVE COUPLING

  	
   

  	
  5882300

  	
   

  	
  3/16/99

  
	
  LONG-TERM
  AMBULATORY PHYSIOLOGICAL RECORDER

  	
   

  	
  6117077

  	
   

  	
  9/12/00

  
	
  NON-INVASIVE
  UTERINE ACTIVITY SENSOR

  	
   

  	
  6169913

  	
   

  	
  1/2/01

  
	
  SELF-CONTAINED
  AMBULATORY BP CINCTURE

  	
   

  	
  6251080

  	
   

  	
  6/26/01

  
	
  SYSTEM
  FOR IDENTIFYING A CABLE TRANSMITTING A SIGNAL FROM A SENSOR TO AN ELECTRONIC
  INSTRUMENT

  	
   

  	
  6497659

  	
   

  	
  12/24/02

  
	
  AMBULATORY
  PHYSIO-KINETIC MONITOR WITH ENVELOPE

  	
   

  	
  6605046

  	
   

  	
  8/12/03

  
	
  VIRTUAL
  HOLTER

  	
   

  	
  6701184

  	
   

  	
  3/2/04

  
	
  METHOD
  FOR TRANSFERRING PATIENT INFORMATION FROM A SOURCE MONITOR TO A DESTINATION
  MONITOR

  	
   

  	
  7076435

  	
   

  	
  7/11/06

  
	
  LATCHING
  MEDICAL PATIENT PARAMETER SAFETY CONNECTOR AND METHOD

  	
   

  	
  7117590

  	
   

  	
  10/10/06

  
	
  LATCHING
  MEDICAL PATIENT PARAMETER SAFETY CONNECTOR AND METHOD

  	
   

  	
  7144268

  	
   

  	
  12/5/06

  
	
  LATCHING
  MEDICAL PATIENT PARAMETER SAFETY CONNECTOR AND METHOD

  	
   

  	
  7179113

  	
   

  	
  2/20/07

  
	
  LATCHING
  MEDICAL PATIENT PARAMETER SAFETY CONNECTOR AND METHOD

  	
   

  	
  7198502

  	
   

  	
  4/3/07

  
	
  LATCHING
  MEDICAL PATIENT PARAMETER SAFETY CONNECTOR AND METHOD

  	
   

  	
  7258566

  	
   

  	
  8/21/07

  
	
  LATCHING
  MEDICAL PATIENT PARAMETER 

  	
   

  	
  7264510

  	
   

  	
  9/4/07

  



 

















 


	
  Description

  	
   

  	
  Patent No.

  	
   

  	
  Issue Date

  
	
  SAFETY
  CONNECTOR AND METHOD

  	
   

  	
   

  	
   

  	
   

  
	
  REUSABLE
  INVASIVE FLUID PRESSURE MONITORING APPARATUS AND METHOD

  	
   

  	
  7704212

  	
   

  	
  4/27/10

  



 


Pending
Application


 


	
  Description

  	
   

  	
  Application

  No.

  	
   

  	
  Filing Date

  
	
  TRENDING
  DISPLAY OF PATIENT WELLNESS

  	
   

  	
  11365196

  	
   

  	
  3/1/06

  
	
  VENTILATOR
  FOR RAPID RESPONSE TO RESPIRATORY DISEASE CONDITIONS 

  	
   

  	
  11678201

  	
   

  	
  2/23/07

  
	
  HEALTH
  DATA COLLECTION TOOL

  	
   

  	
  11716513

  	
   

  	
  3/9/07

  
	
  VENTILATOR
  FOR RAPID RESPONSE TO RESPIRATORY DISEASE CONDITIONS

  	
   

  	
  11871341

  	
   

  	
  10/12/07

  
	
  TRENDING
  DISPLAY OF PATIENT WELLNESS

  	
   

  	
  12114689

  	
   

  	
  5/2/08

  
	
  VENTILATOR
  FOR RAPID RESPONSE TO RESPIRATORY DISEASE CONDITIONS

  	
   

  	
  12703140

  	
   

  	
  2/9/10

  
	
  REUSABLE
  INVASIVE FLUID PRESSURE MONITORING APPARATUS AND METHOD 

  	
   

  	
  12723682

  	
   

  	
  3/14/10

  
	
  MULTIPLE
  MODE PORTABLE PATIENT MONITORING SYSTEM

  	
   

  	
  12768714

  	
   

  	
  4/27/10

  
	
  LIGHT
  ENHANCED FLOW TUBE

  	
   

  	
  12775719

  	
   

  	
  5/7/10

  



 


Copyrights:       None


 


Spacelabs
Medical, Inc.


 


Trademarks:      None


Patents:
None


Copyrights:       None


 

















 


Schedule 3.19(a)


Location of Real Property


 


	
  Entity

  	
   

  	
  Location

  	
   

  	
  County

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Optoelectronics, Inc. 

  	
   

  	
  12515,
  12525, 12533 and 12605 Chadron Avenue, Hawthorne, CA 90250 

  	
   

  	
  Los
  Angeles

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Systems, Inc.

  Dolphin Medical, Inc.

  Osteometer Meditech, Inc

  Metorex Security Products, Inc.

  S2 Global, Inc. 

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  	
   

  	
  Los
  Angeles

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  Ferson Technologies, Inc. 

  	
   

  	
  5801
  Gulf Tech Drive, Ocean Springs, Mississippi 39564 

  	
   

  	
  Jackson

  



 


	
  Entity

  	
   

  	
  Location

  	
   

  	
  County

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Electronics, Inc. 

  	
   

  	
  2385 East Pleasant Valley Road, Camarillo, CA
  93012  

  	
   

  	
  Ventura

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Electronics, Inc. 

  	
   

  	
  25
  Commerce Way, Unit #6, North Andover, MA 01845 

  	
   

  	
  Essex

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  	
   

  	
  2805
  Columbia Street, Torrance, CA 90502 

  	
   

  	
  Los
  Angeles

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  	
   

  	
  2511
  Reliance Avenue, Apex, NC 27539

  	
   

  	
  Wake

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  	
   

  	
  1901
  South Bell St., Suite 300, Arlington, VA 22202

  	
   

  	
  Arlington

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  	
   

  	
  1901
  South Bell St., Suite 305, Arlington, VA 22202

  	
   

  	
  Arlington

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Laboratories, Inc.

  	
   

  	
  520
  Almanor Avenue, Sunnyvale, CA 94085

  	
   

  	
  Santa
  Clara

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Laboratories, Inc. 

  	
   

  	
  1451
  Loveridge Road, Pittsburg, CA 94565

  	
   

  	
  Contra
  Costa

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Spacelabs
  Medical, Inc. 

  	
   

  	
  22011
  SE 51st Street,  Building
  A, Issaquah, WA 98027

  	
   

  	
  King

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Spacelabs
  Medical, Inc.

  Spacelabs Healthcare, LLC

  Spacelabs Healthcare, Inc.

  	
   

  	
  5150
  220th Avenue SE, Building B, Issaquah, WA 98029  

  	
   

  	
  King

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Spacelabs
  Healthcare, Inc.

  	
   

  	
  2802
  Coho Street, Suite 200, Madison, WI 53713 

  	
   

  	
  Dane

  



 

















 


 


Schedule 3.19(b)


Location of Collateral


 


	
  Entity

  	
   

  	
  Location

  	
   

  	
  County

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Optoelectronics, Inc. 

  	
   

  	
  12515,
  12525, 12533 and 12605 Chadron Avenue, Hawthorne, CA 90250 

  	
   

  	
  Los
  Angeles

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Systems, Inc.

  Dolphin Medical, Inc.

  Osteometer Meditech, Inc

  Metorex Security Products, Inc.

  S2 Global, Inc. 

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, CA 90250

  	
   

  	
  Los
  Angeles

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  Ferson Technologies, Inc. 

  	
   

  	
  5801
  Gulf Tech Drive, Ocean Springs, Mississippi 39564 

  	
   

  	
  Jackson

  



 


	
  Entity

  	
   

  	
  Location

  	
   

  	
  County

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Electronics, Inc. 

  	
   

  	
  2385 East Pleasant Valley Road, Camarillo, CA
  93012  

  	
   

  	
  Ventura

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OSI
  Electronics, Inc. 

  	
   

  	
  25
  Commerce Way, Unit #6, North Andover, MA 01845 

  	
   

  	
  Essex

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  	
   

  	
  2805
  Columbia Street, Torrance, CA 90502 

  	
   

  	
  Los
  Angeles

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Systems, Inc.

  	
   

  	
  2511
  Reliance Avenue, Apex, NC 27539

  	
   

  	
  Wake

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Rapiscan
  Laboratories, Inc.

  	
   

  	
  520
  Almanor Avenue, Sunnyvale, CA 94085

  	
   

  	
  Santa
  Clara

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Spacelabs
  Medical, Inc. 

  	
   

  	
  22011
  SE 51st Street,  Building
  A, Issaquah, WA 98027

  	
   

  	
  King

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Spacelabs
  Medical, Inc.

  Spacelabs Healthcare, LLC

  Spacelabs Healthcare, Inc.

  	
   

  	
  5150
  220th Avenue SE, Building B, Issaquah, WA 98029  

  	
   

  	
  King

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Spacelabs
  Healthcare, Inc.

  	
   

  	
  2802
  Coho Street, Suite 200, Madison, WI 53713 

  	
   

  	
  Dane

  



 
















 


Schedule 3.19(c)


Chief Executive Offices


 


	
  Entity

  	
   

  	
  Country/ State

  of Incorporation

  or Organization

  	
   

  	
  Organizational

  Identification No.

  	
   

  	
  Chief Executive Office and Principal

  Place of Business

  
	
  Blease Medical Holdings
  Ltd.

  	
   

  	
  United Kingdom

  	
   

  	
  3121234

  	
   

  	
  110 Cannon St., London EC4N
  6AR, United Kingdom

  
	
  CXR Limited

  	
   

  	
  United Kingdom

  	
   

  	
  4294298

  	
   

  	
  X-Ray House, Bonehurst Road,
  Salfords, Surrey, RH1 5GG United Kingdom

  
	
  Del Mar Reynolds Medical
  Ltd.

  	
   

  	
  United Kingdom

  	
   

  	
  921452

  	
   

  	
  110 Cannon St., London EC4N
  6AR, United Kingdom

  
	
  Dolphin Medical Pte. Ltd.

  	
   

  	
  Singapore

  	
   

  	
  200201583H

  	
   

  	
  51 Changi Business Park
  Central 2, #08-02, the Signature, Singapore (486066)

  
	
  Dolphin Medical, Inc.

  	
   

  	
  California

  	
   

  	
  C2349879

  	
   

  	
  12525 Chadron Avenue, Hawthorne,
  California 90250

  
	
  Ferson Technologies, Inc.

  	
   

  	
  California

  	
   

  	
  C1842804

  	
   

  	
  5801 Gulf Tech Drive, Ocean
  Springs, Mississippi 39564-8225

  
	
  Metorex Security Products,
  Inc.

  	
   

  	
  California

  	
   

  	
  C2118072

  	
   

  	
  12525 Chadron Avenue, Hawthorne,
  California 90250

  
	
  OSI Optoelectrnics Sdn.
  Bhd.

  	
   

  	
  Malaysia

  	
   

  	
  307669-T

  	
   

  	
  No. 6, Jalan Angkasa Mas
  1, Kawasan Perindustrian Tebrau 2, 81100 Johor Bahru, Johor

  
	
  Opto Sensors Hong Kong Limited

  	
   

  	
  Hong Kong

  	
   

  	
  974490

  	
   

  	
  24A Entertainment Building
  30 Queen’s Road Central Hong Kong

  
	
  OSI Defense Systems, LLC

  	
   

  	
  Florida

  	
   

  	
  L03000026778

  	
   

  	
  12525 Chadron Avenue, Hawthorne,
  California 90250

  
	
  OSI Electronics Pte Ltd

  	
   

  	
  Singapore

  	
   

  	
  200604568/C

  	
   

  	
  65A Jalan Tenteram #05-11,
  St. Michael’s Industrial Estate, Singapore 328958

  
	
  OSI Electronics, Inc.

  	
   

  	
  California

  	
   

  	
  C1924054

  	
   

  	
  2385 E. Pleasant Valley
  Road, Camarillo, California 93012

  
	
  OSI
  Optoelectronics AS

  	
   

  	
  Norway

  	
   

  	
  955
  400 917

  	
   

  	
  Kongevein
  79, P.O. Box 83, N-3191 Horten, Norway

  
	
  OSI
  Optoelectronics Limited

  	
   

  	
  Cyprus

  	
   

  	
  170886

  	
   

  	
  48
  Themistocli Dervi Ave, Centennial Building, Office 701, 1066 Nicosia

  
	
  OSI
  Optoelectronics, Inc.

  	
   

  	
  California

  	
   

  	
  95-4265048

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, California 90250

  
	
  OSI
  Systems, Inc.

  	
   

  	
  Delaware

  	
   

  	
  47890003

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, California 90250

  
	
  OSI
  Systems Private Limited

  	
   

  	
  India

  	
   

  	
  U72900AP2001FTC0

  	
   

  	
  Plot
  No. 1 & 9, Phase - II, IDA, Cherlapally, Hyderabad, Andhra
  Pradesh, India PIN: 500051

  
	
  Osteometer
  Meditech, Inc.

  	
   

  	
  California

  	
   

  	
  C2047602

  	
   

  	
  12525
  Chadron Avenue, Hawthorne, California 90250

  
	
  PT
  OSI Electronics

  	
   

  	
  Indonesia

  	
   

  	
  41013200202

  	
   

  	
  Cammo
  Industrial Park, Block B2 No. 3A, Batam Center 29432, Pulau
  Batam, Indonesi and Jl. Yos Sudarso No. 1 to 3 Kampung, Seraya,
  Batu Ampar - P. Batam and Cammo Industrial, Park Blok B2 No 3A Batam Centre,
  Batam, Indonesia

  
	
  Rapiscan
  Systems, Inc.

  	
   

  	
  California

  	
   

  	
  C1841134

  	
   

  	
  2805
  Columbia Street, Torrance, California 90503-3804

  



 

















 


	
  Entity

  	
   

  	
  Country/ State

  of Incorporation

  or Organization

  	
   

  	
  Organizational

  Identification No.

  	
   

  	
  Chief Executive Office and Principal

  Place of Business

  
	
  Rapiscan
  Systems (Cyprus) Limited

  	
   

  	
  Cyprus

  	
   

  	
  177169

  	
   

  	
  Themistokli
  Dervi, 48, ‘CENTENNIAL’ BUILDING, Flat/Office 701, P.C. 1066, Nicosia, Cyprus

  
	
  Rapiscan
  Systems Australia Pty Ltd

  	
   

  	
  Australia

  	
   

  	
  123
  399 735

  	
   

  	
  4
  Ross Street, South Melbourne Victoria Australia 3205

  
	
  Rapiscan
  Systems Hong Kong Limited

  	
   

  	
  Hong
  Kong

  	
   

  	
  C/l
  No. 883928; B/R No. 34515784-000

  	
   

  	
  24A
  Entertainment Building, 30 Queen’s Road, Central, Hong Kong

  
	
  Rapiscan
  do Brasil Ltda

  	
   

  	
  Brazil

  	
   

  	
  33.2.0813791-0

  	
   

  	
  Avenida
  Marechal Camara, No 160, Room 1317, Rio de Janeiro, R.J. 20020-080

  
	
  Rapiscan
  Systems Limited

  	
   

  	
  United
  Kingdom

  	
   

  	
  2755398

  	
   

  	
  X-Ray
  House, Bonehurst Road, Salfords, Surrey, RH1 5GG United Kingdom

  
	
  Rapiscan
  Laboratories, Inc.

  	
   

  	
  Delaware

  	
   

  	
  2806008

  	
   

  	
  520
  Almanor Avenue, Sunnyvale, California 94085-3533

  
	
  Rapiscan
  Systems Oy

  	
   

  	
  Finland

  	
   

  	
  1475696-8

  	
   

  	
  Nihtisillankuja
  5, 02630 Espoo, Finland

  
	
  Rapiscan
  Systems Pte. Ltd

  	
   

  	
  Singapore

  	
   

  	
  199800739K

  	
   

  	
  23,
  Tagore Lane, Unit 01-06/07/08, Singapore 787601

  
	
  Rapiscan
  Systems S.A. de C.V.

  	
   

  	
  Mexico

  	
   

  	
  42,636

  	
   

  	
  Florencia
  57, Piso 3. Colonia Juárez. México, D.F. C.P 06600

  
	
  Rapiscan
  Systems Sdn. Bhd.

  	
   

  	
  Malaysia

  	
   

  	
  405717-W

  	
   

  	
  No. 6,
  Jalan Angkasa Mas 1, Kawasan Perindustrian Tebrau 2, 81100 Johor Bahru, Johor

  
	
  SL
  Healthcare Limited

  	
   

  	
  Cyprus

  	
   

  	
  171036

  	
   

  	
  48
  Themistocli Dervi Ave, Centennial Building, Office 701, 1066 Nicosia

  
	
  Spacelabs
  Healthcare (Canada), Inc.

  	
   

  	
  Canada

  	
   

  	
  422260-1

  	
   

  	
  125
  Topflight Drive, Mississauga, Ontario

  
	
  Spacelabs
  Healthcare GmbH

  	
   

  	
  Germany

  	
   

  	
  HR
  B 3841

  	
   

  	
  Schwabacher
  Strasse 34, 90537 Feucht, Germany

  
	
  Spacelabs
  Healthcare Ltd.

  	
   

  	
  United
  Kingdom

  	
   

  	
  570647

  	
   

  	
  1
  Harforde Court

  John Tate Road

  Hertford

  Herts SG13 7NW

  United Kingdom

  
	
  Spacelabs
  Healthcare Pte. Ltd.

  	
   

  	
  Singapore

  	
   

  	
  199001513W

  	
   

  	
  51
  Changi Business Park Central 2, #08-02, the Signature, Singapore (486066)

  
	
  Spacelabs
  Healthcare SAS

  	
   

  	
  France

  	
   

  	
  348
  880 527 00059

  	
   

  	
  13/15
  Rue Claude Nicolas Ledoux, Europac 94 000 Creteil (Paris), France

  
	
  Spacelabs
  Healthcare S.r.l.

  	
   

  	
  Italy

  	
   

  	
  03823620236

  	
   

  	
  24,
  Via Esperanto, San Giovanni Lupatoto, Verona, Italy

  
	
  Spacelabs
  Healthcare Trading (Shanghai) Co., Ltd

  	
   

  	
  China

  	
   

  	
  318920

  	
   

  	
  Room B1709,
  Far-East International Plaza No. 317 Xian Xia Road, Shanghai PR China
  200051

  
	
  Spacelabs
  Healthcare, Inc.

  	
   

  	
  Delaware

  	
   

  	
  4009030

  	
   

  	
  5150
  220th Avenue SE, Issaquah, Washington 98029

  
	
  Spacelabs
  Healthcare LLC

  	
   

  	
  Washington

  	
   

  	
  602-678-651

  	
   

  	
  5150
  220th Avenue SE, Issaquah, Washington 98029

  
	
  Spacelabs
  Medical, Inc.

  	
   

  	
  Delaware

  	
   

  	
  3768146

  	
   

  	
  5150
  220th Avenue SE, Issaquah, Washington 98029

  



 

















 


	
  Entity

  	
   

  	
  Country/ State

  of Incorporation

  or Organization

  	
   

  	
  Organizational

  Identification No.

  	
   

  	
  Chief Executive Office and Principal

  Place of Business

  
	
  Spacelabs
  Healthcare Medical Equipment (Suzhou) Co., Ltd.

  	
   

  	
  China

  	
   

  	
  N/A

  	
   

  	
  30
  West Wing, Industrial Square, Yang Xian Road, Suzhou, China

  
	
  S2
  Global, Inc.

  	
   

  	
  Delaware

  	
   

  	
  4178628

  	
   

  	
  1901
  S. Bell Street, Suite 325 Arlington, VA 22202

  
	
  S2
  Services, Ltd.

  	
   

  	
  Cayman
  Islands

  	
   

  	
  OG-229342

  	
   

  	
  Ogier
  Fiduciary Services (Cayman) Limited, Queensgate House, South Church Street,
  PO Box 1234, Grand Cayman KY1-1108, Cayman Islands

  
	
  S2
  Services Puerto Rico, LLC

  	
   

  	
  Puerto
  Rico

  	
   

  	
  2113

  	
   

  	
  Valdez
  102, San Juan, Puerto Rico, 00901

  



 

















 


Schedule 3.19(d)


Mortgaged Properties


 


None.


 

















 


Schedule
3.22


Labor
Matters


None.


 
















 


EXHIBIT 1.1(a)


 


[FORM OF]


ACCOUNT DESIGNATION NOTICE


 


TO:                                                                            Wells Fargo
Bank, National Association (successor-by-merger to Wachovia Bank, National
Association), as Administrative Agent


 


RE:                                                                              Credit
Agreement, dated as of October 15, 2010, by and among OSI Systems, Inc.,
a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of
the Borrower from time to time party thereto (the “Guarantors”), the
lenders and other financial institutions from time to time party thereto (the “Lenders”),
and Wells Fargo Bank, National Association (successor-by-merger to Wachovia
Bank, National Association), as Administrative Agent for the Lenders (as
amended, modified, extended, restated, replaced, or supplemented from time to
time, the “Credit Agreement”; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement)


 


DATE :                                                        [Date]


 


The
Administrative Agent is hereby authorized to disburse all Loan proceeds into
the following account, unless the Borrower shall designate, in writing to the
Administrative Agent, one or more other accounts:


 


	
   

  	
   

  	
  Bank
  Name:
  [                                            ]

  	
   

  
	
   

  	
   

  	
  ABA
  Routing Number:
  [              ]

  	
   

  
	
   

  	
   

  	
  Account
  Number:
  [                    ]

  	
   

  



 


[TO BE COMPLETED BY BORROWER]


 


Notwithstanding
the foregoing, on the Closing Date, funds borrowed under the Credit Agreement
shall be sent to the institutions and/or persons designated on payment
instructions to be delivered separately.


 


This
Account Designation Notice may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


	
   

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 1.1(b)


 


[FORM OF]


ASSIGNMENT AND ASSUMPTION


 


This Assignment and Assumption (the “Assignment and Assumption”)
is dated as of the Effective Date set forth below and is entered into by and
between [the][each] Assignor identified in item 1 below ([the][each, an] “Assignor”)
and [the][each] Assignee identified in item 2 below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights
and obligations of [the Assignors][the Assignees] hereunder are several and not
joint.](1) Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended,
the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by [the][each] Assignee. 
The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.


 


For an agreed consideration,
[the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the
respective Assignees], and [the][each] Assignee hereby irrevocably purchases
and assumes from [the Assignor][the respective Assignors], subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of [the Assignor’s][the respective Assignors’] rights and
obligations in [its capacity as a Lender][their respective capacities as
Lenders] under the Credit Agreement and any other documents or instruments
delivered pursuant thereto to the extent related to the amount and percentage
interest identified below of all of such outstanding rights and obligations of
[the Assignor][the respective Assignors] under the respective facilities
identified below (including without limitation any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered
pursuant thereto or the loan transactions governed thereby or in any way based
on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims
at law or in equity related to the rights and obligations sold and assigned
pursuant to clause (i) above (the rights and obligations sold and assigned
by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above
being referred to herein collectively as [the][an] “Assigned Interest”).  Each such sale and assignment is without
recourse to [the][any] Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by [the][any]
Assignor.


 


	
  1.

  	
  Assignor[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Assignee[s]:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [for
  each Assignee, indicate [Affiliate][Approved Fund] of [identify
  Lender]

  



 






(1) 
Include bracketed language if there are either multiple Assignors or multiple
Assignees.


 

















 


	
  3.

  	
   

  	
  Borrower:

  	
   

  	
  OSI
  Systems, Inc., a Delaware corporation.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative
  Agent:

  	
   

  	
  Wells
  Fargo Bank, National Association (successor-by-merger to Wachovia Bank,
  National Association), as the administrative agent under the Credit
  Agreement.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit
  Agreement:

  	
   

  	
  The
  Credit Agreement dated as of October 15, 2010 among OSI
  Systems, Inc., a Delaware corporation, the Domestic Subsidiaries of the
  Borrower from time to time party thereto, the lenders and other financial
  institutions from time to time party thereto, and Wells Fargo Bank, National
  Association (successor-by-merger to Wachovia Bank, National Association), as
  Administrative Agent.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Assigned
  Interest[s]:

  	
   

  	
   

  



 


	
  Assignor[s]

  	
   

  	
  Assignee[s]

  	
   

  	
  Facility

  Assigned

  	
   

  	
  Aggregate

  Amount of

  Commitment/

  Loans for all

  Lenders

  	
   

  	
  Amount of

  Commitment/

  Loans

  Assigned

  	
   

  	
  Percentage

  Assigned of

  Commitment/

  Loans

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
   

  	
  %

  	
   

  	
   

  



 


	
  [7.

  	
   

  	
  Trade
  Date:

  	
   

  	
                 ](2)

  



 


Effective
Date:  
                          
      , 20      .


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 






(2) 
To be completed if the Assignor(s) and the Assignee(s) intend that
the minimum assignment amount is to be determined as of the Trade Date.


 

















 


The
terms set forth in this Assignment and Assumption are hereby agreed to:


 


	
   

  	
  ASSIGNOR[S]

  
	
   

  	
  [NAME
  OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  



 

















 


	
   

  	
  ASSIGNEE[S]

  
	
   

  	
  [NAME
  OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  



 

















 


	
  [Consented
  to and] Accepted:

  	
   

  
	
   

  	
   

  
	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION

  	
   

  
	
  (successor-by-merger
  to Wachovia Bank, National Association),

  	
   

  
	
  as
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
  Title:

  	
   

  
			



 

















 


	
  [Consented
  to:]

  	
   

  
	
   

  	
   

  
	
  [NAME
  OF RELEVANT PARTY]

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
  Title:

  	
   

  
			



 

















 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and
Warranties.


 


1.1  Assignor[s].  [The][Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the][the
relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Credit Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Credit Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Credit Document or (iv) the performance
or observance by the Borrower, any of its Subsidiaries or Affiliates or any
other Person of any of their respective obligations under any Credit Document.


 


1.2.  Assignee[s].  [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an assignee
under Section 9.6(b)(iii), (v) and (vi) of the Credit Agreement
(subject to such consents, if any, as may be required under Section 9.6(b)(iii) of
the Credit Agreement), (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and,
to the extent of [the][the relevant] Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect
to decisions to acquire assets of the type represented by the Assigned Interest
and either it, or the person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type,
(v) it has received a copy of the Credit Agreement, and has received or
has been accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section 5.1 thereof, as applicable, and
such other documents and information as it deems appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and
to purchase [the][such] Assigned Interest, (vi) it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Assignment and Assumption and
to purchase [the][such] Assigned Interest, and (vii) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required
to be delivered by it pursuant to the terms of the Credit Agreement, duly completed
and executed by [the][such] Assignee; and (b) agrees that (i) it
will, independently and without reliance on the Administrative Agent,
[the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Documents, and
(ii) it will perform in


 

















 


accordance
with their terms all of the obligations which by the terms of the Credit
Documents are required to be performed by it as a Lender.


 


2.  Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the][each] Assigned
Interest (including payments of principal, interest, fees and other amounts) to
[the][the relevant] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the][the relevant] Assignee for amounts which have
accrued from and after the Effective Date.


 


3.  General Provisions.  This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns.  This Assignment
and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of  New York.


 
















 


EXHIBIT 1.1(c)


 


[FORM OF]


JOINDER AGREEMENT


 


THIS
JOINDER AGREEMENT (this “Agreement”), dated as of
[                    ,
        ], is by and among
[                                          ,
a                                             ]
(the “Subsidiary Guarantor”), OSI Systems, Inc., a Delaware corporation
(the “Borrower”), and Wells Fargo Bank, National Association
(successor-by-merger to Wachovia Bank, National Association), in its capacity
as administrative agent (in such capacity, the “Administrative Agent”)
under that certain Credit Agreement, dated as of October 15, 2010  (as amended, modified, extended, restated, replaced, or
supplemented from time to time, the “Credit Agreement”), by and among
the Borrower, the Domestic Subsidiaries of the Borrower from time to time party
thereto (collectively the “Guarantors”), the lenders and other financial
institutions from time to time party thereto (the “Lenders”) and the
Administrative Agent.  Capitalized terms
used herein but not otherwise defined shall have the meanings provided in the
Credit Agreement.


 


The
Subsidiary Guarantor is an Additional Credit Party, and, consequently, the
Credit Parties are required by Section 5.10 of the Credit Agreement to cause
the Subsidiary Guarantor to become a “Guarantor” thereunder.


 


Accordingly, the Subsidiary Guarantor and the Borrower hereby agree as
follows with the Administrative Agent, for the benefit of the Lenders:


 


1.                                          The Subsidiary Guarantor
hereby acknowledges, agrees and confirms that, by its execution of this
Agreement, the Subsidiary Guarantor will be deemed to be a party to and a “Guarantor”
under the Credit Agreement and shall have all of the obligations of a Guarantor
thereunder as if it had executed the Credit Agreement.  The Subsidiary Guarantor hereby ratifies, as
of the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the applicable Credit Documents, including without
limitation (a) all of the representations and warranties set forth in Article
III of the Credit Agreement and (b) all of the affirmative and negative
covenants set forth in Articles V and VI of the Credit Agreement.  Without limiting the generality of the
foregoing terms of this Paragraph 1, the Subsidiary


 

















 


Guarantor hereby guarantees, jointly and severally together with the
other Guarantors, the prompt payment of the Credit Party Obligations in
accordance with Article X of the Credit Agreement.


 


2.                                       The Subsidiary
Guarantor hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the Subsidiary Guarantor will be deemed to be a party to the
Security Agreement, and shall have all the rights and obligations of an “Obligor”
(as such term is defined in the Security Agreement) thereunder as if it had
executed the Security Agreement.  The
Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to be
bound by, all of the terms, provisions and conditions contained in the Security
Agreement.  Without limiting the
generality of the foregoing terms of this Paragraph 2, the Subsidiary Guarantor
hereby grants to the Administrative Agent, for the benefit of the Lenders, a
continuing security interest in, and a right of set off, to the extent
applicable, against any and all right, title and interest of the Subsidiary
Guarantor in and to the Collateral (as such term is defined in Section 2 of the
Security Agreement) of the Subsidiary Guarantor.


 


3.                                       The Subsidiary
Guarantor hereby acknowledges, agrees and confirms that, by its execution of
this Agreement, the Subsidiary Guarantor will be deemed to be a party to the
Pledge Agreement, and shall have all the rights and obligations of a “Pledgor”
(as such term is defined in the Pledge Agreement) thereunder as if it had
executed the Pledge Agreement.  The
Subsidiary Guarantor hereby ratifies, as of the date hereof, and agrees to be
bound by, all the terms, provisions and conditions contained in the Pledge
Agreement.  Without limiting the
generality of the foregoing terms of this Paragraph 3, the Subsidiary Guarantor
hereby pledges and assigns to the Administrative Agent, for the benefit of the
Lenders, and grants to the Administrative Agent, for the benefit of the
Lenders, a continuing security interest in any and all right, title and
interest of the Subsidiary Guarantor in and to Pledged Capital Stock (as such
term is defined in Section 2 of the Pledge Agreement) and the other Pledged
Collateral (as such term is defined in Section 2 of the Pledge Agreement).


 


4.                                       The Subsidiary
Guarantor acknowledges and confirms that it has received a copy of the Credit
Agreement and the schedules and exhibits thereto and each Security Document and
the schedules and exhibits thereto.  The
information on the schedules to the Credit Agreement and the Security Documents
are hereby supplemented (to the extent permitted under the Credit Agreement or
Security Documents) to reflect the information shown on the attached Schedule
A.


 


5.                                       The information
on Schedule B to this Joinder Agreement is true and correct as of the
date hereof.


 


6.                                       The Borrower
confirms that the Credit Agreement is, and upon the Subsidiary Guarantor
becoming a Guarantor, shall continue to be, in full force and effect.  The parties hereto confirm and agree that
immediately upon the Subsidiary Guarantor becoming a Guarantor the term “Credit
Party Obligations,” as used in the Credit Agreement, shall include all
obligations of the Subsidiary Guarantor under the Credit Agreement and under
each other Credit Document.


 


7.                                       Each of the
Borrower and the Subsidiary Guarantor agrees that at any time and from time to
time, upon the written request of the Administrative Agent, it will execute and



 

















 


deliver
such further documents and do such further acts as the Administrative Agent may
reasonably request in accordance with the terms and conditions of the Credit
Agreement in order to effect the purposes of this Agreement.


 


8.                                       This Agreement
(a) may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute one contract and (b) may, upon execution, be delivered by facsimile or electronic
mail, which shall be deemed for all purposes to be an original signature.


 


9.                                       This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of New York.  The terms of Sections 9.13
and 9.16  of the Credit Agreement are
incorporated herein by reference, mutatis mutandis,
and the parties hereto agree to such terms.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


IN
WITNESS WHEREOF, each of the Borrower and the Subsidiary Guarantor has caused
this Agreement to be duly executed by its authorized officer, and the
Administrative Agent, for the benefit of the Lenders, has caused the same to be
accepted by its authorized officer, as of the day and year first above written.


 


	
  SUBSIDIARY
  GUARANTOR:

  	
  [SUBSIDIARY
  GUARANTOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BORROWER:

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


Acknowledged,
accepted and agreed:


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION


(successor-by-merger
to Wachovia Bank, National Association),


as
Administrative Agent


 


	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 

















 


Schedule A


 


Schedules to Credit Agreement and Security Documents


 


[TO BE COMPLETED BY BORROWER]


 
















 


Schedule B


 


Disclosure Information


 


	
  Legal
  Name of Credit Party (and any previous legal names within the past four
  months):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  State
  of Organization:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Jurisdictions
  of Organization:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Business
  Phone Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Organizational
  Identification Number:(1)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Federal
  Tax Identification Number:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Ownership
  Information (e.g. publicly held, if private or partnership—identity of
  owners/partners):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Each
  of the following locations:  (a) all real property owned by the
  Subsidiary Guarantor,  (b) each headquarter location of the
  Subsidiary Guarantor (and an indication if such location is leased or owned),
  (c) each other location where any
  significant administrative or governmental functions are performed (and an
  indication if such location is leased or owned), (d) each other location where the Subsidiary Guarantor
  maintains any books or records (electronic or otherwise) (and an indication
  if such location is leased or owned) and (e) each
  location where any personal property Collateral is located at any premises by
  the Subsidiary Guarantor with a
  Collateral value in excess of $1,000,000  (and

  	
   

  	
   

  



 






(1) 
This item does not apply to a Credit Party organized under the laws of
Alabama, Indiana, Massachusetts, Nebraska, New Hampshire, New Mexico, New
York, Oklahoma, South Carolina, Vermont or West Virginia.


 

















 


	
  an indication whether such location is leased or
  owned).  Please include the following
  information for each location: a street address (including county), the
  approximate value (for owned property, the fair market value, for any leased
  property, the approximate value of any Collateral located on such premises
  and the annual rental value), an indication of whether the location is owned
  or leased (and, if so, the name and address of the owner of the location) or
  operated by a third party, such as a warehouseman or processor (and, if so,
  the name and address of such third party):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  All
  of the financial institutions at which any Subsidiary Guarantor maintains any
  deposit accounts, investment accounts, securities accounts or similar
  accounts, together with the name of account, account number and a description
  for each such account (including the recent value):

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  All
  patents, trademarks and copyrights owned by the Subsidiary Guarantor as of
  the date hereof, all patent licenses, trademark licenses and copyright
  licenses to which the Subsidiary Guarantor is a party as of the date hereof,
  and all patent applications, trademark applications, and copyright
  applications made by the Subsidiary Guarantor as of the date hereof:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Description
  of all commercial tort claims of the Subsidiary Guarantor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Description
  of all Instruments, Chattel Paper and Documents of the Subsidiary Guarantor:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  List
  the issued and outstanding equity interests owned by (a) the Subsidiary Guarantor and (b) the owner of the Subsidiary Guarantor’s equity
  interests:  

  	
   

  	
   

  



 


[TO BE COMPLETED BY BORROWER/SUBSIDIARY GUARANTOR]


 

















 


EXHIBIT 1.1(d)


 


[FORM OF]


NOTICE OF BORROWING


 


TO:                                                                            Wells Fargo
Bank, National Association (successor-by-merger to Wachovia Bank, National
Association), as Administrative Agent


 


RE:                                                                              Credit
Agreement, dated as of October 15, 2010, by and among OSI Systems, Inc.,
a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of
the Borrower from time to time party thereto (the “Guarantors”), the
lenders and other financial institutions from time to time party thereto (the “Lenders”),
and Wells Fargo Bank, National Association (successor-by-merger to Wachovia
Bank, National Association), as Administrative Agent for the Lenders (as
amended, modified, extended, restated, replaced, or supplemented from time to
time, the “Credit Agreement”; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement)


 


DATE :                                                        [Date]


 


Pursuant to Section [2.1(b)(i),] [and/or] [2.4(b)(i)]  of the Credit Agreement, the Borrower hereby requests the
following (the “Proposed Borrowing”):


 


Revolving
Loans be made as follows:


 


	
  Date

  	
   

  	
  Amount

  	
   

  	
  Interest

  Rate

  (Alternate Base Rate/

  LIBOR Rate)

  	
   

  	
  Interest

  Period

  (one, two, three or six 

  months

  — for LIBOR Rate only)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


NOTE:                                    REVOLVING LOAN BORROWINGS
THAT ARE (A) ALTERNATE BASE RATE
LOANS MUST BE IN A MINIMUM AGGREGATE AMOUNT OF $500,000 AND IN INTEGRAL
MULTIPLES OF $500,000 IN EXCESS THEREOF AND (B) LIBOR
RATE LOANS MUST BE IN A MINIMUM AGGREGATE AMOUNT OF $500,000 AND IN INTEGRAL
MULTIPLES OF $500,000  IN EXCESS
THEREOF.


 

















 


Swingline
Loans to be made on [date] as follows:


 


Swingline
Loans requested:


 


	
  (1)

  	
   

  	
  Total
  Amount of Swingline Loans

  	
   

  	
  $

  	
   

  	
   

  



 


NOTE:                                  SWINGLINE LOAN
BORROWINGS MUST BE IN MINIMUM AMOUNTS OF $100,000 AND IN INTEGRAL AMOUNTS OF $100,000  IN EXCESS THEREOF.


 


The
undersigned hereby certifies that the following statements are true on the date
hereof and will be true on the date of the Proposed Borrowing:


 


(a)                                  The
representations and warranties made by the Credit Parties in the Credit
Agreement, in the Credit Documents or which are contained in any certificate
furnished at any time under or in connection with the Credit Agreement shall be
(i) with respect to representations
and warranties that contain a materiality qualification, true and correct and (ii) with respect to representations and
warranties that do not contain a materiality qualification, true and correct in
all material respects, in each case on and as of the date of the Proposed
Borrowing as if made on and as of such date 
except for any representation or warranty made as of an earlier date,
which representation and warranty shall remain true and correct as of such
earlier date.


 


(b)                                 No Default or
Event of Default shall have occurred and be continuing on the date of the Proposed
Borrowing or after giving effect to the Proposed Borrowing unless such Default
or Event of Default shall have been waived in accordance with the Credit
Agreement.


 


(c)                                  Immediately
after giving effect to the making of the Proposed Borrowing (and the application
of the proceeds thereof), (i) the sum of the aggregate principal amount of
outstanding Revolving Loans plus outstanding Swingline Loans plus
outstanding LOC Obligations shall not exceed (A) the
Revolving Committed Amount then in effect and (B) during
the Testing Period, the Borrowing Base, (ii) the outstanding LOC
Obligations shall not exceed the LOC Committed Amount, (iii) the
outstanding Swingline Loans shall not exceed the Swingline Committed Amount and
(iii) during the Testing Period, the
Accessible Borrowing Availability shall be greater than $0.


 


(d)                                 [If a Revolving
Loan is requested] All conditions set forth in Section 2.1 of the Credit
Agreement shall have been satisfied.


 


(e)                                  [If a Swingline Loan is
requested] If a Swingline Loan is requested, (i) all conditions set forth
in Section 2.4 shall have been satisfied and (ii) there shall exist
no Revolving Lender that is a Defaulting Lender unless the Swingline Lender has
entered into satisfactory arrangements with the Borrower or such Defaulting
Lender to eliminate the Swingline Lender’s risk with respect to such Defaulting
Lender.


 


This
Notice of Borrowing may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.


 


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  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 1.1(e)


 


[FORM OF]


NOTICE OF
CONVERSION/EXTENSION


 


TO:                                                                            Wells Fargo
Bank, National Association (successor-by-merger to Wachovia Bank, National
Association), as Administrative Agent


 


RE:                                                                              Credit
Agreement, dated as of October 15, 2010, by and among OSI Systems, Inc.,
a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of
the Borrower from time to time party thereto (the “Guarantors”), the
lenders and other financial institutions from time to time party thereto (the “Lenders”),
and Wells Fargo Bank, National Association (successor-by-merger to Wachovia
Bank, National Association), as Administrative Agent for the Lenders (as
amended, modified, extended, restated, replaced, or supplemented from time to
time, the “Credit Agreement”; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement)


 


DATE :                                                        [Date]


 


Pursuant to Section 2.9 of the Credit Agreement, the Borrower
hereby requests          conversion or
         extension of the following
Loans be made as follows (the “Proposed Conversion/Extension”):


 


	
  Applicable 

  Loan

  	
   

  	
  Current 

  Interest 

  Rate and 

  Interest 

  Period

  	
   

  	
  Date

  	
   

  	
  Amount to 

  be 

  converted/

  extended

  	
   

  	
  Requested 

  Interest

  Rate

  (Alternate Base

  Rate/LIBOR 

  Rate)

  	
   

  	
  Requested Interest

  Period

  (one, two, three or six

  months

  — for LIBOR Rate only)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


NOTE:                                    PARTIAL
CONVERSIONS MUST BE IN MINIMUM AMOUNTS OF $500,000 OR A WHOLE MULTIPLE OF
$500,000  IN EXCESS THEREOF.


 


Capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Credit Agreement.


 


The
undersigned hereby certifies that no Default or Event of Default has occurred
and is continuing or would result from such Proposed Conversion/Extension or
from the application of the proceeds thereof unless such Default or Event of
Default shall have been waived in accordance with the Credit Agreement.


 

















 


This
Notice of Conversion/Extension may, upon execution, be delivered by facsimile
or electronic mail, which shall be deemed for all purposes to be an original
signature.


 


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  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 
















 


EXHIBIT 1.1(f)


 


[FORM OF]


PERMITTED ACQUISITION
CERTIFICATE


 


TO:                                                                            Wells Fargo
Bank, National Association (successor-by-merger to Wachovia Bank, National
Association), as Administrative Agent


 


RE:                                                                              Credit
Agreement, dated as of October 15, 2010, by and among OSI Systems, Inc.,
a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of
the Borrower from time to time party thereto (the “Guarantors”), the
lenders and other financial institutions from time to time party thereto (the “Lenders”),
and Wells Fargo Bank, National Association (successor-by-merger to Wachovia
Bank, National Association), as Administrative Agent for the Lenders (as
amended, modified, extended, restated, replaced, or supplemented from time to
time, the “Credit Agreement”; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement)


 


DATE :                                                        [Date]


 


On
the date hereof the Borrower intends to acquire (the “Acquisition”)
substantially all of the assets of
[          ] (the “Target”).  The undersigned officer of the [insert applicable Credit Party], hereby certifies that:


 


(a)                                  The Acquisition is
of [check applicable box]:


 


o                                    All or substantially all of
the assets or a majority of the outstanding Voting Stock or economic interests
of a Person that is a type of business (or assets used in a type of business)
permitted to be engaged in by the Credit Parties and their Subsidiaries
pursuant to Section 6.3  of the Credit
Agreement.


 


o                                    Any division, line of
business or other business unit of a Person that is a type of business (or
assets used in a type of business) permitted to be engaged in by the Credit
Parties and their Subsidiaries pursuant to Section 6.3  of the Credit Agreement.


 


(b)                                 No Default or Event of
Default exists or would exist after giving effect to the Acquisition.


 


(c)                                  After giving effect to the
Acquisition on a Pro Forma Basis, Consolidated Leverage Ratio is less than or
equal to 2.75 to 1.0, as demonstrated by the financial covenant calculations
set forth on Schedule A attached hereto.


 

















 


(d)                                 The Credit Parties [have
complied/shall comply] with Section 5.10 and 5.12 of the Credit Agreement,
to the extent required to do so thereby.


 


(e)                                  Attached hereto as Schedule
B is a description of the material terms of the Acquisition (including a
description of the business and the form of consideration).(1)


 


(f)                                    Attached hereto as Schedule
C are the [audited financial statements] [management-prepared financial
statements] of the Target for its two most recent fiscal years and for any fiscal
quarters ended within the fiscal year to date.(2)


 


(g)                                 Attached hereto as Schedule
D are the Consolidated projected income statements of the Borrower and its
Consolidated Subsidiaries after giving effect to the Acquisition.(3)


 


(h)                                 The Acquisition is not a “hostile”
acquisition and has been approved by the Board of Directors and/or shareholders
(or their respective equivalents) of the applicable Credit Party and the
Target.


 


(i)                                     After giving effect to the
Acquisition, there is at least $15,000,000 of Revolver Availability.


 


(j)                                     The aggregate cash
consideration (including without limitation earn outs or deferred compensation
or non-competition arrangements and the amount of Indebtedness and other
liabilities incurred or assumed by the Borrower and its Subsidiaries) paid by
the Borrower and its Subsidiaries in connection with this single acquisition
does not exceed $75,000,000.


 


[(k)                              After giving effect to the
Acquisition, Investments in and loans to Foreign Subsidiaries created or
acquired after the Closing Date shall not exceed $10,000,000 in the aggregate
in any fiscal year of the Borrower.]


 


This
Certificate may, upon execution, be delivered by facsimile or electronic mail,
which shall be deemed for all purposes to be an original signature.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 






(1)  Attach Schedule B if the total consideration for such
acquisition is greater than $35,000,000.


(2) 
Attach Schedule C if the total consideration for such acquisition is greater
than $35,000,000.


(3) 
Attach Schedule D if the total consideration for such acquisition is greater
than $35,000,000.


 

















 


	
   

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


Schedule A


 


Financial Covenant Calculations


 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule B


 


Description of Material Terms


 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule C


 


[Audited Financial Statements] [Management-Prepared Financial
Statements]


 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule D


 


Consolidated Projected Income Statements


 


[TO BE COMPLETED BY BORROWER]


 
















 


EXHIBIT 2.1(a)


 


[FORM OF]


FUNDING INDEMNITY LETTER


 


	
  TO:

  	
  Wells
  Fargo Bank, National Association (successor-by-merger to Wachovia Bank,
  National Association), as Administrative Agent

  
	
   

  	
   

  
	
  RE:

  	
  Credit
  Agreement, dated as of October 15, 2010, by and among OSI Systems, Inc.,
  a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of
  the Borrower from time to time party thereto (the “Guarantors”), the
  lenders and other financial institutions from time to time party thereto (the
  “Lenders”), and Wells Fargo Bank, National Association
  (successor-by-merger to Wachovia Bank, National Association), as
  Administrative Agent for the Lenders (as amended, modified, extended,
  restated, replaced, or supplemented from time to time, the “Credit
  Agreement”; capitalized terms used herein and not otherwise defined shall
  have the meanings set forth in the Credit Agreement)

  
	
   

  	
   

  
	
  DATE
  :

  	
  [Date]

  



 


This
letter is delivered in anticipation of the closing of the above-referenced
Credit Agreement.  Capitalized terms used
herein and not otherwise defined shall have the meanings assigned thereto in
the most recent draft of the Credit Agreement circulated to the Borrower and
the Lenders.


 


The
Borrower anticipates that all conditions precedent to the effectiveness of the
Credit Agreement will be satisfied on [Date] (the “Effective Date”).  The Borrower wishes to borrow the initial
Revolving Loans, described in the Notice of Borrowing delivered in connection
with this letter agreement, on the Effective Date as LIBOR Rate Loans (the “Effective
Date LIBOR Rate Loans”).


 


In
order to induce the Lenders to accept this request prior to the Effective Date,
the Borrower hereby agrees that, in the event the Borrower fails to borrow the
Effective Date LIBOR Rate Loans on the Effective Date for any reason whatsoever
(including the failure of the Credit Agreement to become effective), the
Borrower hereby unconditionally agrees to reimburse each applicable Lender in
respect of its Effective Date LIBOR Rate Loans upon its demand as set forth in Section 2.15
of the Credit Agreement as if it were in effect with respect to the requested
Effective Date LIBOR Rate Loans.


 


This
letter agreement shall be governed by, and shall be construed and enforced in
accordance with the laws of the State of New York.  This letter may (a) be executed in any number of counterparts by the different
signatories hereto on separate counterparts, each of which counterparts when
executed and delivered shall be an original, but all of which together shall
constitute one and the same letter and (b) upon
execution, be delivered by facsimile or electronic mail, which shall be deemed
for all purposes to be an original signature.


 

















 


[REMAINDER OF PAGE LEFT
INTENTIONALLY BLANK]


 

















 


	
   

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 2.1(e)


 


[FORM OF]


REVOLVING NOTE


 


[Date]


 


FOR
VALUE RECEIVED, the undersigned, OSI SYSTEMS, INC., a Delaware corporation
(the “Borrower”) hereby unconditionally promises to pay, on the Maturity
Date (as defined in the Credit Agreement referred to below), to
[                      ]
or its registered assigns (the “Lender”), at the office of Wells Fargo
Bank, National Association (successor-by-merger to Wachovia Bank, National
Association) in lawful money of the United States of America and in immediately
available funds, the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the undersigned pursuant to Section 2.1 of the
Credit Agreement referred to below.  The
undersigned further agrees to pay interest in like money at such office on the
unpaid principal amount hereof and, to the extent permitted by law, accrued
interest in respect hereof from time to time from the date hereof until payment
in full of the principal amount hereof and accrued interest hereon, at the
rates and on the dates set forth in the Credit Agreement.


 


This Revolving Note is one of the Revolving Notes referred to in the
Credit Agreement, dated as of October 15, 2010 (as amended, modified,
extended, restated, replaced, or supplemented from time to time, the “Credit
Agreement”), by and among the Borrower, the Domestic Subsidiaries of the
Borrower from time to time party thereto (collectively the “Guarantors”),
the lenders and other financial institutions from time to time party thereto (the
“Lenders”) and Wells Fargo Bank, National Association
(successor-by-merger to Wachovia Bank, National Association), as administrative
agent for the Lenders (the “Administrative Agent”), and the holder is
entitled to the benefits thereof. 
Capitalized terms used but not otherwise defined herein shall have the
meanings provided in the Credit Agreement.


 


Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Revolving Note shall become, or may be declared to be, immediately due and
payable, all as provided therein.  In the
event this Revolving Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to principal and interest, all
costs of collection, including reasonable attorneys’ fees.


 


All parties now and hereafter liable with respect to this Revolving
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.


 


This
Revolving Note may, upon execution, be delivered by facsimile or electronic
mail, which shall be deemed for all purposes to be an original signature.


 

















 


THIS REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


	
   

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 2.4(d)


 


[FORM OF]


SWINGLINE NOTE


 


[Date]


 


FOR VALUE RECEIVED, the undersigned, OSI SYSTEMS, INC., a Delaware
corporation (the “Borrower”), hereby unconditionally promises to pay on
the Revolver Maturity Date (as defined in the Credit Agreement referred to
below), to the order of
[          ] (the “Swingline
Lender”) at the office of Wells Fargo Bank, National Association
(successor-by-merger to Wachovia Bank, National Association) in lawful money of
the United States of America and in immediately available funds, the aggregate
unpaid principal amount of all Swingline Loans made by the Swingline Lender to
the undersigned pursuant to Section 2.4 of the Credit Agreement referred
to below.  The undersigned further agrees
to pay interest in like money at such office on the unpaid principal amount
hereof and, to the extent permitted by law, accrued interest in respect hereof
from time to time from the date hereof until payment in full of the principal
amount hereof and accrued interest hereon, at the rates and on the dates set
forth in the Credit Agreement.


 


This Swingline Note is the Swingline Note referred to in the Credit
Agreement, dated as of October 15, 2010 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the “Credit Agreement”),
by and among the Borrower, the Domestic Subsidiaries of the Borrower from time
to time party thereto (collectively the “Guarantors”), the lenders and
other financial institutions from time to time party thereto (the “Lenders”)
and Wells Fargo Bank, National Association (successor-by-merger to Wachovia
Bank, National Association), as administrative agent for the Lenders (the “Administrative
Agent”), and the holder is entitled to the benefits thereof.  Capitalized terms used but not otherwise
defined herein shall have the meanings provided in the Credit Agreement.


 


Upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Swingline Note shall become, or may be declared to be, immediately due and
payable, all as provided therein.  In the
event this Swingline Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to principal and interest,
all costs of collection, including reasonable attorneys’ fees.


 


All parties now and hereafter liable with respect to this Swingline
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.


 


This
Swingline Note may, upon execution, be delivered by facsimile or electronic
mail, which shall be deemed for all purposes to be an original signature.


 

















 


THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


	
   

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 
















 


EXHIBIT 4.1(a)


 


[FORM OF]


LENDER CONSENT


 


	
  TO:

  	
  Wells
  Fargo Bank, National Association (successor-by-merger to Wachovia Bank,
  National Association), as Administrative Agent

  
	
   

  	
   

  
	
  RE:

  	
  Credit
  Agreement, to be dated as of October 15, 2010, by and among OSI Systems, Inc.,
  a Delaware corporation (the “Borrower”), the Domestic Subsidiaries of
  the Borrower from time to time party thereto (the “Guarantors”), the
  lenders and other financial institutions from time to time party thereto (the
  “Lenders”), and Wells Fargo Bank, National Association
  (successor-by-merger to Wachovia Bank, National Association), as
  Administrative Agent for the Lenders (as amended, modified, extended,
  restated, replaced, or supplemented from time to time, the “Credit
  Agreement”; capitalized terms used herein and not otherwise defined shall
  have the meanings set forth in the Credit Agreement)

  
	
   

  	
   

  
	
  DATE:

  	
  [Date]

  



 


This
Consent is given pursuant to the Credit Agreement referenced above.  The undersigned hereby (i) approves the
Credit Agreement, (ii) authorizes and appoints the Administrative Agent as
its agent in accordance with the terms of Article VIII of the Credit
Agreement, (iii) authorizes the Administrative Agent to execute and
deliver the Credit Agreement on its behalf, (iv) agrees that it is a
Lender under the Credit Agreement and therefore shall have all the rights and
obligations of a Lender under the Credit Agreement as if such Person had
directly executed and delivered a signature page to the Credit Agreement
and (v) has consented to, approved or accepted or is satisfied with, each
document or other matter required under Section 4.1 to be consented to or
approved by or be acceptable or satisfactory to a Lender.  Capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement.


 


Delivery
of this Consent by telecopy shall be effective as an original.


 


A
duly authorized officer of the undersigned has executed this Consent as of the
       day of
          ,
          .


 


 


	
   

  	
                                               ,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  



 

















 


	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 4.1(b)


 


[FORM OF]


OFFICER’S CERTIFICATE


 


[CREDIT PARTY]


 


Pursuant to Section 4.1(b) of the Credit Agreement, dated as
of October 15, 2010 (as amended, modified, extended, restated, replaced,
or supplemented from time to time, the “Credit Agreement”; capitalized
terms used herein and not otherwise defined shall have the meanings set forth
in the Credit Agreement), by and among OSI Systems, Inc., a Delaware
corporation (the “Borrower”), the Domestic Subsidiaries of the Borrower
from time to time party thereto (collectively the “Guarantors”), the
lenders and other financial institutions from time to time party thereto (the “Lenders”)
and Wells Fargo Bank, National Association (successor-by-merger to Wachovia
Bank, National Association), as administrative agent for the Lenders (the “Administrative
Agent”), the undersigned
[                        ]
of [CREDIT PARTY] (the “Company”) hereby certifies as follows:


 


1.             Attached hereto as Exhibit A is a true
and complete copy of the [articles of incorporation] [certificate of formation]
[certificate of limited partnership] of the Company and all amendments thereto
as in effect on the date hereof certified as a recent date by the appropriate
Governmental Authorities of the state of [incorporation] [organization] of the
Company.


 


2.             Attached hereto as Exhibit B is a true
and complete copy of the [bylaws] [operating agreement] [partnership agreement]  of the Company and all amendments thereto as in effect on
the date hereof.


 


3.             Attached hereto as Exhibit C is a true
and complete copy of resolutions duly adopted by the [board of directors]
[members] [managers] [partners] of the Company on
                      
        .  Such resolutions have not in any way been
rescinded or modified and have been in full force and effect since their
adoption to and including the date hereof, and such resolutions are the only
corporate proceedings of the Company now in force relating to or affecting the
matters referred to therein.


 


4.             Attached hereto as Exhibit D are true
and complete copies of the certificates of good standing, existence or its
equivalent of the Company certified as of a recent date by the appropriate
Governmental Authorities of the state of [incorporation] [organization] of the
Company and each other state in which the failure to so qualify and be in good
standing could reasonably be expected to have a Material Adverse Effect.


 


5.             The following persons are the duly elected and
qualified officers of the Company, holding the offices indicated next to the
names below on the date hereof, and the signatures appearing opposite the names
of the officers below are their true and genuine signatures, and 


 

















 


each of such officers is duly authorized to
execute and deliver on behalf of the Company, the Credit Agreement, the Notes
and the other Credit Documents to be issued pursuant thereto:


 


	
  Name

  	
   

  	
  Office

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


This
Certificate may, upon execution, be delivered by facsimile or electronic mail,
which shall be deemed for all purposes to be an original signature.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


IN WITNESS WHEREOF, I hereunder subscribe my name effective as of
the          day of
                ,
        .


 


	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


I,
                                              ,
the
                                              
of the Company, hereby certify that
                                        
is the duly elected and qualified
                                              
of the Company and that his/her true and genuine signature is set forth above.


 


	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 4.1(d)


 


[FORM OF]


LANDLORD WAIVER


 


Drawn
by and return to:


Moore &
Van Allen, PLLC


Suite 4700


100
North Tryon Street


Charlotte,
North Carolina 28202-4003


 


THIS LANDLORD LIEN WAIVER AGREEMENT (this “Agreement”) is
entered as of this [        ] day of
[                      ,
20    ] by and between
[                                            ],
a
[                                  ]
(“Landlord”), the owner of certain real property, buildings and
improvements located in
[                              ],
and Wells Fargo Bank, National Association (successor-by-merger to Wachovia
Bank, National Association), in its capacity as administrative agent (the “Administrative
Agent”) for itself and the other lenders (the “Lenders”) providing
certain credit facilities pursuant to (i) that certain Credit Agreement,
dated on or about October 15, 2010 (as amended, modified, extended,
restated, replaced, or supplemented from time to time, the “Credit Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Credit Agreement) by and among OSI Systems, Inc., a
Delaware corporation (the “Borrower”), the domestic subsidiaries of the
Borrower from time to time party thereto (the “Guarantors” and together
with the Borrower, the “Credit Parties”), the lenders and other
financial institutions from time to time party thereto, and the Administrative
Agent.


 


Recitals:


 


A.  The Lenders have agreed to
provide the Borrower with credit facilities (the “Credit Facilities”)
under the terms and conditions of the Credit Agreement, which credit facilities
are guaranteed by the Guarantors.  The
Credit Parties have secured the repayment of the Credit Facilities and any
Secured Hedging Agreement (as defined in the Credit Agreement) inter alia by granting the Administrative Agent, for the
ratable benefit of the Lenders and any Hedging Agreement Provider (as defined
in the Credit Agreement), a security interest in all of the Credit Parties’
personal property, whether now owned or hereafter acquired, including all
proceeds of any of the foregoing (collectively, the “Collateral”).


 


B.  Whereas Landlord is the
lessor under the lease described in Exhibit A attached hereto (the “Lease”)
with
[                                  ]
(the “Tenant”) as lessee pursuant to which Landlord has leased certain
premises to Tenant located at
[                                        ]
(the “Premises”).


 


C.  As a condition to extending
the Credit Facilities, the Lenders and the Administrative Agent have requested
that the Credit Parties obtain, and cause the Landlord to provide, a waiver and
subordination, pursuant to the terms of this Agreement, of all of its rights
against any of the Collateral for so long as the Credit Facilities and the
commitments to make the Credit Facilities remain outstanding.


 

















 


NOW, THEREFORE, in consideration of the foregoing, and the mutual
benefits accruing to the Administrative Agent and Landlord as a result of the
credit facilities provided by the Lenders pursuant to the Credit Agreement, the
sufficiency and receipt of such consideration being hereby acknowledged, the
parties hereto agree as follows:


 


1.             Landlord hereby subordinates in favor of the
Administrative Agent, each and every party now or hereafter participating as a
Lender under the Credit Agreement and each Hedging Agreement Provider, any and
all rights or interests that Landlord, or its successors and assigns, may now
or hereafter have in or to the Collateral, including, without limitation, any
lien, claim, charge or encumbrance of any kind or nature, arising by statute,
contract, common law or otherwise.


 


2.             Landlord hereby agrees that the liens and security
interests existing in favor of the Administrative Agent, for the ratable
benefit of each and every party now or hereafter participating as a Lender
under the Credit Agreement and each Hedging Agreement Provider, shall be prior
and superior to (i) any and all rights of distraint, levy, and execution
which Landlord may now or hereafter have against the Collateral, (ii) any
and all liens and security interests which Landlord may now or hereafter have
on and in the Collateral, and (iii) any and all other rights, demands and
claims of every nature whatsoever which Landlord may now or hereafter have on
or against the Collateral for any reason whatsoever, including, without
limitation, rent, storage charge, or similar expense, cost or sum due or to
become due Landlord by Tenant under the provisions of any lease, storage
agreement or otherwise, and Landlord hereby subordinates all of its foregoing
rights and interests in the Collateral to the security interest of the
Administrative Agent in the Collateral. 
Landlord deems the Collateral to be personal property, not fixtures.


 


3.             Upon the advance written notice from the
Administrative Agent that an event of default has occurred and is continuing
under the Credit Agreement, Landlord agrees that the Administrative Agent or
its delegates or assigns may enter upon the Premises at any time or times,
during normal business hours, to inspect or remove the Collateral, or any part
thereof, from the Premises, without charge, either prior to or subsequent to
the termination of the Lease, provided that in any event such removal shall
occur no later than forty-five (45) days after the termination of the
Lease.  The Administrative Agent shall
repair or pay reasonable compensation to Landlord for damage, if any, to the
Premises caused by the removal of the Collateral.  In addition to the above removal rights, the
Landlord will permit the Administrative Agent to remain on the Premises for
forty-five (45) days after the Administrative Agent gives the Landlord notice
of its intention to do so and to take such action as the Administrative Agent
deems necessary or appropriate in order to liquidate the Collateral, provided
that the Administrative Agent shall pay to the Landlord the basic rent due
under the Lease pro-rated on a per diem basis determined on a 30-day month
(provided, that such rent shall exclude any rent adjustments, indemnity
payments or similar amounts payable under the Lease for default, holdover
status or similar charges).


 


4.             Landlord represents and warrants: (a) that it
has not assigned its claims for payment, if any, nor its right to perfect or
assert a lien of any kind whatsoever against Tenant’s Collateral; (b) that
it has the right, power and authority to execute this Agreement; (c) that
it holds legal title to the Premises;  (d) that
it is not aware of any breach or default by the Tenant of


 

















 


its
obligations under the Lease with respect to the Premises;  and
(e) the Lease, together with all assignments, modifications,
supplementations and amendments set forth in Exhibit A, represents,
as of the date hereof, the entire agreement between the parties with respect to
the lease of the Premises.  Landlord
further agrees to provide the Administrative Agent with prompt written notice
in the event that Landlord sells the Premises or any portion thereof.


 


5.             The Landlord shall send to the Administrative Agent
(in the manner provided herein) a copy of any notice or statement sent to the
Tenant by the Landlord asserting a default under the Lease.  Such copy shall be sent to the Administrative
Agent at the same time such notice or statement is sent to the Tenant.  Notices shall be sent to the Administrative
Agent by prepaid, registered or certified mail, addressed to the Administrative
Agent at the following address, or such other address as the Administrative
Agent shall designate to the Landlord in writing:


 


Wells Fargo Bank, National Association


(successor-by-merger to Wachovia Bank, National Association),


as Administrative Agent


201
South College Street, CP8


Charlotte,
North Carolina 28288-0680


Attention: Syndication Agency Services


 


6.             The Landlord shall not terminate the Lease or pursue
any other right or remedy under the Lease by reason of any default of the
Tenant under the Lease, until the Landlord shall have given a copy of such
written notice to the Administrative Agent as provided above and, in the event
any such default is not cured by the Tenant within any time period provided for
under the terms and conditions of the Lease, the Landlord will allow the
Administrative Agent (a) thirty (30)
days from the expiration of the Tenant’s cure period under the Lease within
which the Administrative Agent shall have the right, but shall not be
obligated, to remedy such act, omission or other default and Landlord will
accept such performance by the Administrative Agent and (b) up to an additional sixty (60) days to
occupy the Premises; provided that during such period of occupation the
Administrative Agent shall pay to the Landlord the basic rent due under the
Lease pro-rated on a per diem basis determined on a thirty (30) day month (provided
that such rent shall exclude any rent adjustments, indemnity payments or
similar amounts payable under the Lease for default, holdover or similar
charge).


 


7.             The undersigned will notify all successor owners,
transferees, purchasers and mortgagees of the Premises of the existence of this
Agreement.  The agreements contained
herein may not be modified or terminated orally and shall be binding upon the
successors, assigns and personal representatives of the undersigned, upon any
successor owner or transferee of the Premises, and upon any purchasers,
including any mortgagee, from the undersigned.


 


8.             This Agreement shall continue in effect during the
term of the Credit Agreement, and any extensions, renewals or modifications
thereof and any substitutions therefor, shall be binding upon the successors,
assigns and transferees of Landlord, and shall inure to the benefit of the
transferees of Landlord, and shall inure to the benefit of the Administrative
Agent, each Lender, each Hedging Agreement Provider and their respective
successors and assigns.


 

















 


Landlord
hereby waives notice of the Administrative Agent’s acceptance of and reliance
on this Agreement.


 


9.             This Agreement (a) may
be executed and delivered in any number of counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement and (b) may, upon
execution, be delivered by facsimile or electronic mail, which shall be deemed
for all purposes to be an original signature.


 


10.          This Agreement shall be governed by, and construed
and interpreted in accordance with, the law of the State of New York.  All judicial proceedings brought by the
Landlord, the Administrative Agent or the Tenant with respect to this Agreement
may be brought in any state or federal court of competent jurisdiction in the
State of New York, and, by execution and delivery of this Agreement, each of
the Landlord, Administrative Agent and the Tenant accepts, for itself and in connection
with its properties, generally and unconditionally, the non-exclusive
jurisdiction of the aforesaid courts and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with this Agreement from which no
appeal has been taken or is available.


 


11.          This Agreement represents the agreement of the
Landlord, Administrative Agent and the Tenant with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Landlord, Administrative Agent and the Tenant relative to the
subject matter hereof not expressly set forth or referred to herein.


 


12.          This Agreement may not be amended, modified or
waived except by a written amendment or instrument signed by each of the
Landlord, the Administrative Agent and the Tenant.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


IN WITNESS WHEREOF, Landlord and the Administrative Agent have each
caused this Agreement to be duly executed by their respective authorized
representatives as of the date first above written.


 


 


	
   

  	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION (successor-by-merger to Wachovia Bank,
  National Association),

  
	
   

  	
   

  	
  as
  Administrative Agent for the Lenders

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [                  ],

  
	
   

  	
   

  	
  as
  Landlord

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Acknowledged
  and Agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
                                                                  ,

  	
   

  	
   

  
	
  as
  Tenant

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  



 
















 


Exhibit A


 


Lease


 

















 


EXHIBIT 4.1(g)


 


[FORM OF]


SOLVENCY CERTIFICATE


 


	
  TO:

  	
   

  	
  Wells
  Fargo Bank, National Association (successor-by-merger to Bank, National
  Association), as Administrative Agent

  
	
   

  	
   

  	
   

  
	
  RE:

  	
   

  	
  Credit
  Agreement, dated as of October 15, 2010, by and among OSI
  Systems, Inc., a Delaware corporation (the “Borrower”), the
  Domestic Subsidiaries of the Borrower from time to time party thereto (the “Guarantors”),
  the lenders and other financial institutions from time to time party thereto
  (the “Lenders”), and Wells Fargo Bank, National Association
  (successor-by-merger to Wachovia Bank, National Association), as
  Administrative Agent for the Lenders (as amended, modified, extended,
  restated, replaced, or supplemented from time to time, the “Credit
  Agreement”; capitalized terms used herein and not otherwise defined shall
  have the meanings set forth in the Credit Agreement)

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
   

  	
  [Date]

  



 


The undersigned [chief financial officer]  of
OSI Systems, Inc., a Delaware corporation (the “Borrower”), is
familiar with the properties, businesses, assets and liabilities of the Credit
Parties and is duly authorized to execute this certificate on behalf of the
Borrower and the Credit Parties.


 


The undersigned certifies that he has made such investigation and
inquiries as to the financial condition of the Credit Parties as the
undersigned deems necessary and prudent for the purpose of providing this
Certificate.  The undersigned
acknowledges that the Administrative Agent and the Lenders are relying on the
truth and accuracy of this Certificate in connection with the making of Loans
and other Extensions of Credit under the Credit Agreement.


 


The undersigned certifies that the financial information, projections
and assumptions which underlie and form the basis for the representations made
in this Certificate were reasonable when made and were made in good faith and
continue to be reasonable as of the date hereof.


 


BASED ON THE FOREGOING, the undersigned certifies that, both before and
after giving effect to the Transactions:


 


(a)           Each of the
Credit Parties is solvent and is able to pay its debts and other liabilities,
contingent obligations and other commitments as they mature in the normal
course of business.


 

















 


(b)           The fair
saleable value of each Credit Party’s assets, measured on a going concern
basis, exceeds all probable liabilities, including those to be incurred
pursuant to the Credit Agreement.


 


(c)           None of the
Credit Parties has unreasonably small capital in relation to the business in
which it is or proposed to be engaged.


 


(d)           None of the
Credit Parties has incurred, or believes that it will incur debts beyond its
ability to pay such debts as they become due.


 


(e)           In executing
the Credit Documents and consummating the Transactions, none of the Credit
Parties intends to hinder, delay or defraud either present or future creditors
or other Persons to which one or more of the Credit Parties is or will become
indebted.


 


This
Certificate may, upon execution, be delivered by facsimile or electronic mail,
which shall be deemed for all purposes to be an original signature.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 

















 


	
   

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


EXHIBIT 4.1(p)


 


[FORM OF]


FINANCIAL CONDITION
CERTIFICATE


 


	
  TO:

  	
   

  	
  Wells
  Fargo Bank, National Association (successor-by-merger to Wachovia Bank,
  National Association), as Administrative Agent

  
	
   

  	
   

  	
   

  
	
  RE:

  	
   

  	
  Credit
  Agreement, dated as of October 15, 2010, by and among OSI
  Systems, Inc., a Delaware corporation (the “Borrower”), the
  Domestic Subsidiaries of the Borrower from time to time party thereto (the “Guarantors”),
  the lenders and other financial institutions from time to time party thereto
  (the “Lenders”), and Wells Fargo Bank, National Association
  (successor-by-merger to Wachovia Bank, National Association), as
  Administrative Agent for the Lenders (as amended, modified, extended,
  restated, replaced, or supplemented from time to time, the “Credit
  Agreement”; capitalized terms used herein and not otherwise defined shall
  have the meanings set forth in the Credit Agreement)

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
   

  	
  [Date]

  



 


Pursuant to the terms of Section 4.1 of the Credit Agreement, I,
[                           ,
                           ]
of the Borrower, hereby certify on behalf of the Credit Parties and not in my
individual capacity that, as of the date hereof, the statements below are
accurate and complete in all respects:


 


(a)           There does not
exist any pending or threatened (a) litigation,
injunction, order or claim with respect to the Borrower or any of its  subsidiaries which could reasonably be expected to have a
Material Adverse Effect on the Credit Parties taken as a whole or (b) bankruptcy or insolvency proceedings
with respect to the Credit Parties.


 


(c)           Immediately
after giving effect to the Credit Agreement, the other Credit Documents and all
Transactions contemplated to occur on the Closing Date, (i) no Default or Event of Default exists, (ii) all representations and warranties
contained in the Credit Agreement and in the other Credit Documents are true
and correct, and (iii) the Credit
Parties are in pro forma compliance with each of the initial financial
covenants set forth in Section 5.9  of the Credit
Agreement, as demonstrated by the financial covenant calculations set forth on Schedule
A attached hereto, as of [June 30, 2010] [the last day of the quarter
ending at least twenty (20) days preceding the Closing Date].


 


(d)           Immediately
after giving effect to the Credit Agreement, the other Credit Documents and all
Transactions contemplated to occur on the Closing Date, each of the conditions
precedent in Section 4.1 have been satisfied, including, without
limitation:


 

















 


(i)            Immediately
after giving effect to the Transactions, Consolidated Funded Debt  minus the outstanding amount of all Performance
Letters of Credit (including Letters of Credit issued under the Credit
Agreement that are Performance Letters of Credit) is less than or equal to
$100,000,000.00, as demonstrated by the financial covenant calculations set
forth on Schedule A attached hereto.


 


(ii)           Attached hereto
on Exhibit A are true and complete copies of each Material Contract
not previously delivered to the Administrative Agent, together with all
exhibits and schedules thereto.


 


This
Financial Condition Certificate may, upon execution, be delivered by facsimile
or electronic mail, which shall be deemed for all purposes to be an original
signature.


 


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  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


Schedule A


 


Financial Covenant Calculations


 


[TO BE COMPLETED BY BORROWER]


 

















 


Exhibit A


 


Material Contracts


 


[TO BE COMPLETED BY BORROWER]


 


[See attached.]


 

















 


EXHIBIT 4.1(q)


 


[FORM OF]


PATRIOT ACT CERTIFICATE


 


	
  TO:

  	
   

  	
  Wells
  Fargo Bank, National Association (successor-by-merger to Wachovia Bank,
  National Association), as Administrative Agent

  
	
   

  	
   

  	
   

  
	
  RE:

  	
   

  	
  Credit
  Agreement, dated as of October 15, 2010, by and among OSI
  Systems, Inc., a Delaware corporation (the “Borrower”), the
  Domestic Subsidiaries of the Borrower from time to time party thereto (the “Guarantors”),
  the lenders and other financial institutions from time to time party thereto
  (the “Lenders”), and Wells Fargo Bank, National Association
  (successor-by-merger to Wachovia Bank, National Association), as
  Administrative Agent for the Lenders (as amended, modified, extended,
  restated, replaced, or supplemented from time to time, the “Credit
  Agreement”; capitalized terms used herein and not otherwise defined shall
  have the meanings set forth in the Credit Agreement)

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
   

  	
  [Date]

  



 


I,
[                              ],
hereby certify that I am the duly elected, qualified and acting [                              ]
of the Borrower and am authorized to execute this certificate on behalf of the
Credit Parties.


 


I
hereby certify on behalf of the Credit Parties that attached hereto on Schedule
A is true and complete information, as requested by the Administrative
Agent, on behalf of the Lenders, for compliance with The Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)), as amended or modified from time to
time. (the “Patriot Act”), including, without limitation, the legal name
and address of the Borrower and the other Credit Parties and other information
that will allow the Administrative Agent or any Lender, as applicable, to
identify the Borrower and the Credit Parties in accordance with the Patriot
Act.


 


This
Patriot Act Certificate may, upon execution, be delivered by facsimile or
electronic mail, which shall be deemed for all purposes to be an original
signature.


 


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  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 






 












 


Schedule A


 


	
  Legal
  Name of the Borrower:

  	
   

  
	
   

  	
   

  
	
  State
  of Organization:

  	
   

  
	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  
	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  
	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  
	
   

  	
   

  
	
  Organizational
  Identification Number:(1)

  	
   

  
	
   

  	
   

  
	
  Federal
  Tax Identification Number:

  	
   

  



 


	
  Legal
  Name of Guarantor:

  	
   

  
	
   

  	
   

  
	
  State
  of Organization:

  	
   

  
	
   

  	
   

  
	
  Type
  of Organization:

  	
   

  
	
   

  	
   

  
	
  Address
  of Chief Executive Office:

  	
   

  
	
   

  	
   

  
	
  Address
  of Principal Place of Business:

  	
   

  
	
   

  	
   

  
	
  Organizational
  Identification Number:

  	
   

  
	
   

  	
   

  
	
  Federal
  Tax Identification Number:

  	
   

  



 


[To be
completed for each Guarantor]


 


[TO BE COMPLETED BY BORROWER]


 






(1) 
This item does not apply to a Credit Party organized under the laws of
Alabama, Indiana, Massachusetts, Nebraska, New Hampshire, New Mexico, New
York, Oklahoma, South Carolina, Vermont or West Virginia.


 

















 


EXHIBIT 5.2(b)


 


[FORM OF]


OFFICER’S COMPLIANCE
CERTIFICATE


 


	
  TO:

  	
   

  	
  Wells
  Fargo Bank, National Association (successor-by-merger to Wachovia Bank,
  National Association), as Administrative Agent

  
	
   

  	
   

  	
   

  
	
  RE:

  	
   

  	
  Credit
  Agreement, dated as of October 15, 2010, by and among OSI
  Systems, Inc., a Delaware corporation (the “Borrower”), the
  Domestic Subsidiaries of the Borrower from time to time party thereto (the “Guarantors”),
  the lenders and other financial institutions from time to time party thereto
  (the “Lenders”), and Wells Fargo Bank, National Association
  (successor-by-merger to Wachovia Bank, National Association), as
  Administrative Agent for the Lenders (as amended, modified, extended,
  restated, replaced, or supplemented from time to time, the “Credit
  Agreement”; capitalized terms used herein and not otherwise defined shall
  have the meanings set forth in the Credit Agreement)

  
	
   

  	
   

  	
   

  
	
  DATE:

  	
   

  	
  [Date]

  



 


For
the fiscal [quarter] [year] ended
[                                  ,
          ].


 


The
undersigned hereby certifies on behalf of the Credit Parties that, to the best
of his/her knowledge, with respect to the Credit Agreement:


 


(a)           The financial
statements delivered for the fiscal period referred to above present fairly the
financial position of the Borrower and its Subsidiaries, for the period
indicated above, in conformity with GAAP applied on a consistent basis.


 


(b)           Each of the
Credit Parties during the period indicated above observed or performed all of
its covenants and other agreements, and satisfied every condition, contained in
the Credit Agreement to be observed, performed or satisfied by it.


 


(c)           I have obtained
no knowledge of any Default or Event of Default under the Credit Agreement;(1)


 


(d)           Attached hereto
on Schedule A are calculations in reasonable detail demonstrating
compliance by the Credit Parties with the financial covenant contained in
Section 5.9 of the Credit Agreement as of the last day of the fiscal
period referred to above.


 






(1) 
If a Default or Event of Default shall have occurred, an explanation of such
Default or Event of Default shall be provided on a separate page attached
hereto together with an explanation of the action taken or proposed to be taken
by the Borrower with respect thereto.


 

















 


(e)           Attached hereto
on Schedule B is a certificate detailing the amount of all acquisitions
and all Investments (including Permitted Acquisitions) made during the fiscal
period referred to above and amounts received in connection with any
Extraordinary Receipt during the fiscal period referred to above.


 


(f)            [Attached
hereto on Schedule C is an updated copy of Schedule 3.3 to the
Credit Agreement.](2)


 


(g)           [Attached
hereto on Schedule D is an updated copy of Schedule 3.12 to the
Credit Agreement.](3)


 


(h)           [Attached hereto
on Schedule E is an updated copy of Schedule 3.16 to the Credit
Agreement.](4)


 


(i)            [Attached
hereto on Schedule F is an updated copy of Schedule 3.24 to the
Credit Agreement.](5)


 


(j)            [Attached
hereto on Schedule G is an updated copy of Schedule 3.25 to the
Credit Agreement.](6)


 


This
Certificate may, upon execution, be delivered by facsimile or electronic mail,
which shall be deemed for all purposes to be an original signature.


 


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(2)           Attach Schedule
C if the Borrower or any of its Subsidiaries has formed or acquired a new
Subsidiary since the Closing Date or since Schedule 3.3 to the Credit
Agreement was last updated.


 


(3)           Attach Schedule
D if the Borrower or any of its Subsidiaries has formed or acquired a new
Subsidiary since the Closing Date or since Schedule 3.12 to the Credit
Agreement was last updated.


 


(4)           Attach Schedule
E if the Borrower or any of its Subsidiaries has acquired any new
Intellectual Property since the Closing Date or since Schedule 3.16 to
the Credit Agreement was last updated.


 


(5)           Attach Schedule
F if any new Material Contract has been entered into since the Closing Date
or since Schedule 3.24 to the Credit Agreement was last updated
(together with a copy of such Material Contract(s)).


 


(6)           Attach Schedule
G if the Borrower or any of its Subsidiaries has altered or acquired any
insurance policies since the Closing Date.


 

















 


	
   

  	
  OSI
  SYSTEMS, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 

















 


Schedule A


 


Financial Covenant Calculations


 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule B


 


Calculations


 


	
  I.

  	
  all
  acquisitions

  	
   

  	
  I.

  
	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
  all
  Investments (including Permitted Acquisitions)

  	
   

  	
  II.

  



 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule C


 


Schedule 3.3 to Credit Agreement


 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule D


 


Schedule 3.12 to Credit Agreement


 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule E


 


Schedule 3.16 to Credit Agreement


 


[TO BE COMPLETED BY BORROWER]


 

















 


Schedule F


 


Schedule 3.24 to Credit Agreement


 


[TO BE COMPLETED BY BORROWER]


 


[Please attach a copy of each Material Contract.]


 

















 


Schedule G


 


Schedule 3.25 to Credit Agreement


 


[TO BE COMPLETED BY BORROWER]


 


[Please attach a copy of the insurance coverage.]