Exhibit
10.1


 


Execution Version


 


AMENDED AND RESTATED


 


CREDIT AGREEMENT,


 


dated as of October 22, 2010,


 


(amending the Credit Agreement, dated as of March 15, 2010, as
amended)


 


among


 


REDDY ICE CORPORATION,

as the Borrower,


 


VARIOUS FINANCIAL INSTITUTIONS AND OTHER PERSONS

FROM TIME TO TIME PARTIES HERETO,

as the Lenders,


 


and


 


JPMORGAN CHASE BANK, N.A.,

as the Administrative Agent


 






 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  
	
  ARTICLE I

  
	
  DEFINITIONS
  AND ACCOUNTING TERMS

  
	
   

  
	
  SECTION 1.1.

  	
  Defined Terms

  	
  1

  
	
  SECTION 1.2.

  	
  Use of Defined Terms

  	
  28

  
	
  SECTION 1.3.

  	
  Cross-References

  	
  28

  
	
  SECTION 1.4.

  	
  Accounting and Financial Determinations

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
  COMMITMENTS,
  BORROWING AND ISSUANCE

  
	
  PROCEDURES,
  NOTES AND LETTERS OF CREDIT

  
	
   

  
	
  SECTION 2.1.

  	
  Commitments

  	
  29

  
	
  SECTION 2.2.

  	
  Reductions in Commitment Amounts

  	
  30

  
	
  SECTION 2.3.

  	
  Borrowing Procedures

  	
  31

  
	
  SECTION 2.4.

  	
  Continuation and Conversion Elections

  	
  33

  
	
  SECTION 2.5.

  	
  Funding

  	
  33

  
	
  SECTION 2.6.

  	
  Reallocation of Revolving Loans

  	
  34

  
	
  SECTION 2.7.

  	
  Register; Notes

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
  REPAYMENTS,
  PREPAYMENTS, INTEREST AND FEES

  
	
   

  
	
  SECTION 3.1.

  	
  Repayments and Prepayments; Application

  	
  35

  
	
  SECTION 3.2.

  	
  Interest Provisions

  	
  38

  
	
  SECTION 3.3.

  	
  Fees

  	
  39

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
  CERTAIN
  LIBO RATE AND OTHER PROVISIONS

  
	
   

  
	
  SECTION 4.1.

  	
  LIBO Rate Lending Unlawful

  	
  39

  
	
  SECTION 4.2.

  	
  Deposits Unavailable

  	
  40

  
	
  SECTION 4.3.

  	
  Increased LIBO Rate Loan Costs, etc.

  	
  40

  
	
  SECTION 4.4.

  	
  Funding Losses

  	
  40

  
	
  SECTION 4.5.

  	
  Increased Capital Costs

  	
  41

  
	
  SECTION 4.6.

  	
  Taxes

  	
  42

  
	
  SECTION 4.7.

  	
  Payments, Computations, etc.

  	
  45

  
	
  SECTION 4.8.

  	
  Sharing of Payments

  	
  46

  
	
  SECTION 4.9.

  	
  Setoff

  	
  47

  
	
  SECTION 4.10.

  	
  Replacement of Lenders

  	
  47

  
	
  SECTION 4.11.

  	
  Mitigation of Claims

  	
  48

  
				



 


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  Page

  
	
   

  
	
  ARTICLE V

  
	
  CONDITIONS
  TO EFFECTIVENESS

  
	
   

  
	
  SECTION 5.1.

  	
  Initial Credit Extension

  	
  48

  
	
  SECTION 5.2.

  	
  All Credit Extensions

  	
  50

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
  REPRESENTATIONS
  AND WARRANTIES

  
	
   

  
	
  SECTION 6.1.

  	
  Organization, etc.

  	
  51

  
	
  SECTION 6.2.

  	
  Due
  Authorization, Non-Contravention, etc.

  	
  51

  
	
  SECTION 6.3.

  	
  Government Approval, Regulation, etc.

  	
  52

  
	
  SECTION 6.4.

  	
  Validity, etc.

  	
  52

  
	
  SECTION 6.5.

  	
  Financial Information

  	
  52

  
	
  SECTION 6.6.

  	
  No Material Adverse Effect; Solvency

  	
  52

  
	
  SECTION 6.7.

  	
  Litigation, Labor Controversies, etc.

  	
  52

  
	
  SECTION 6.8.

  	
  Subsidiaries

  	
  53

  
	
  SECTION 6.9.

  	
  Ownership of Properties

  	
  53

  
	
  SECTION 6.10.

  	
  Taxes

  	
  53

  
	
  SECTION 6.11.

  	
  Pension and Welfare Plans

  	
  53

  
	
  SECTION 6.12.

  	
  Environmental Warranties

  	
  54

  
	
  SECTION 6.13.

  	
  Accuracy of Information

  	
  55

  
	
  SECTION 6.14.

  	
  Regulations T, U and X

  	
  55

  
	
  SECTION 6.15.

  	
  Absence of Any Undisclosed Liabilities

  	
  55

  
	
  SECTION 6.16.

  	
  Mortgages

  	
  55

  
	
  SECTION 6.17.

  	
  Amounts of Other Debt

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
  COVENANTS

  
	
   

  
	
  SECTION 7.1.

  	
  Affirmative Covenants

  	
  56

  
	
  SECTION 7.2.

  	
  Negative Covenants

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
  EVENTS OF
  DEFAULT

  
	
   

  
	
  SECTION 8.1.

  	
  Listing of Events of Default

  	
  75

  
	
  SECTION 8.2.

  	
  Action if Bankruptcy

  	
  77

  
	
  SECTION 8.3.

  	
  Action if Other Event of Default

  	
  77

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  
	
  THE
  ADMINISTRATIVE AGENT

  
	
   

  
	
  SECTION 9.1.

  	
  Actions

  	
  77

  
	
  SECTION 9.2.

  	
  Funding Reliance, Etc.

  	
  78

  
				



 


ii

















 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  SECTION 9.3.

  	
  Exculpation

  	
  78

  
	
  SECTION 9.4.

  	
  Successor

  	
  79

  
	
  SECTION 9.5.

  	
  Loans by Administrative Agent

  	
  79

  
	
  SECTION 9.6.

  	
  Credit Decisions

  	
  79

  
	
  SECTION 9.7.

  	
  Copies, Etc.

  	
  80

  
	
  SECTION 9.8.

  	
  Reliance by Administrative Agent

  	
  80

  
	
  SECTION 9.9.

  	
  Defaults

  	
  80

  
	
  SECTION 9.10.

  	
  [Reserved]

  	
  81

  
	
  SECTION 9.11.

  	
  Withholding Taxes

  	
  81

  
	
  SECTION 9.12.

  	
  Intercreditor Agreements

  	
  81

  
	
   

  	
   

  	
   

  
	
  ARTICLE X

  
	
  MISCELLANEOUS
  PROVISIONS

  
	
   

  
	
  SECTION 10.1.

  	
  Waivers, Amendments, Etc.

  	
  81

  
	
  SECTION 10.2.

  	
  Notices; Time

  	
  83

  
	
  SECTION 10.3.

  	
  Payment of Costs and Expenses

  	
  83

  
	
  SECTION 10.4.

  	
  Indemnification

  	
  84

  
	
  SECTION 10.5.

  	
  Survival

  	
  85

  
	
  SECTION 10.6.

  	
  Severability

  	
  85

  
	
  SECTION 10.7.

  	
  Headings

  	
  85

  
	
  SECTION 10.8.

  	
  Execution in Counterparts, Effectiveness, Etc.

  	
  85

  
	
  SECTION 10.9.

  	
  Governing Law; Entire Agreement

  	
  86

  
	
  SECTION 10.10.

  	
  Successors and Assigns

  	
  86

  
	
  SECTION 10.11.

  	
  Sale and Transfer of Credit Extensions; Participations in
  Credit Extensions

  	
  86

  
	
  SECTION 10.12.

  	
  Other Transactions

  	
  90

  
	
  SECTION 10.13.

  	
  Forum Selection and Consent to Jurisdiction

  	
  90

  
	
  SECTION 10.14.

  	
  Waiver of Jury Trial

  	
  91

  
	
  SECTION 10.15.

  	
  Limitation on Interest

  	
  91

  
	
  SECTION 10.16.

  	
  Confidentiality

  	
  92

  
	
  SECTION 10.17.

  	
  USA PATRIOT Act Notice

  	
  93

  
	
  SECTION 10.18.

  	
  Effect of Amendment and Restatement of the Existing Credit
  Agreement

  	
  93

  
				



 


iii

















 


	
  SCHEDULE
  I

  	
  —

  	
  Disclosure
  Schedule

  
	
  SCHEDULE
  II

  	
  —

  	
  Percentages;
  Lending Office

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A-1

  	
  —

  	
  Form of
  Revolving Note

  
	
  EXHIBIT A-2

  	
  —

  	
  Form of
  Swing Line Note

  
	
  EXHIBIT B

  	
  —

  	
  Form of
  Borrowing Request

  
	
  EXHIBIT C

  	
  —

  	
  Form of
  Continuation/Conversion Notice

  
	
  EXHIBIT D

  	
  —

  	
  Form of
  Lender Assignment Agreement

  
	
  EXHIBIT E

  	
  —

  	
  Form of
  Compliance Certificate

  
	
  EXHIBIT F-1

  	
  —

  	
  Form of
  Non-Bank Tax Certificate

  
	
  EXHIBIT F-2

  	
  —

  	
  Form of
  Non-Bank Tax Certificate

  
	
  EXHIBIT F-3

  	
  —

  	
  Form of
  Non-Bank Tax Certificate

  
	
  EXHIBIT F-4

  	
  —

  	
  Form of
  Non-Bank Tax Certificate

  
	
  EXHIBIT G

  	
  —

  	
  Form of
  Guaranty

  
	
  EXHIBIT H

  	
  —

  	
  [Reserved]

  
	
  EXHIBIT I

  	
  —

  	
  Conformed
  Copy of Pledge and Security Agreement

  
	
  EXHIBIT J

  	
  —

  	
  Form of
  Closing Date Certificate

  
	
  EXHIBIT K

  	
  —

  	
  Form of
  Solvency Certificate

  
	
  EXHIBIT L

  	
  —

  	
  Conformed
  Copy of First Lien Intercreditor Agreement

  
	
  EXHIBIT M

  	
  —

  	
  Conformed
  Copy of Junior Lien Intercreditor Agreement

  
	
  EXHIBIT N

  	
  —

  	
  Form of
  Mortgage

  



 


iv

















 


CREDIT AGREEMENT


 


THIS
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 22, 2010, is
among REDDY ICE CORPORATION, a Nevada corporation (the “Borrower”), the
various financial institutions and other Persons from time to time parties
hereto (collectively, the “Lenders”) and JPMORGAN CHASE BANK, N.A., as
the administrative agent for the Lenders (in such capacity, the “Administrative
Agent”).


 


W  I  T
N  E  S  S  E  T  H:


 


WHEREAS, pursuant to the Credit Agreement, dated as of March 15,
2010 (the “Original Closing Date”) (as amended, supplemented, amended
and restated or otherwise modified prior to the date hereof, the “Existing
Credit Agreement”), among the Borrower, the lenders party thereto (the “Existing
Lenders”), and JPMorgan Chase Bank, N.A., (“JPMorgan”) as
administrative agent, the Existing Lenders committed to extend to the Borrower
a $50,000,000 revolving credit facility to make revolving loans (the “Existing
Loans”);


 


WHEREAS, the parties hereto wish to amend and restate the Existing
Credit Agreement in its entirety on the Closing Date (such term and each other
capitalized term used but not defined in the preamble and the recitals having
the meanings provided in Section 1.1) to, among other things, provide for
Loans to the Borrower in an amount equal to the applicable Commitment Amount on
and subject to the terms and conditions of this Agreement;


 


WHEREAS,
the Borrower has requested that the Existing Credit Agreement be amended and
restated in its entirety to become effective and binding on the Borrower
pursuant to the terms of this Agreement, and the Lenders (including certain of
the Existing Lenders) have agreed (subject to the terms of this Agreement) to
amend and restate the Existing Credit Agreement in its entirety to read as set
forth in this Agreement, with the intent that the terms of this Agreement shall
supersede the terms of the Existing Credit Agreement (which shall hereafter
have no further effect upon the parties thereto); and


 


WHEREAS,
all Obligations are and shall continue to be secured by all collateral on which
a Lien is granted to the Administrative Agent pursuant to any Loan Document;


 


NOW,
THEREFORE, in consideration of the premises and the covenants and agreements
contained herein, the parties hereto hereby agree to amend and restate the
Existing Credit Agreement, and the Existing Credit Agreement is hereby amended
and restated, in its entirety as follows:


 


ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS


 


SECTION 1.1.          Defined Terms.  The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):


 

















 


“Administrative
Agent” is defined in the preamble and includes each other Person
appointed as the successor Administrative Agent pursuant to Section 9.4.


 


“Affected
Lender” is defined in Section 4.10.


 


“Affiliate”
of any Person means any other Person which, directly or indirectly, controls,
is controlled by or is under common control with such Person.  “Control” of a Person means the power,
directly or indirectly, (a) to vote 10% or more of the Capital Securities
(on a fully diluted basis) of such Person having ordinary voting power for the
election of directors, managing members or general partners (as applicable) or (b) to
direct or cause the direction of the management and policies of such Person
(whether by contract or otherwise).


 


“Agreement”
means, on any date, the Existing Credit Agreement as amended and restated on
the Closing Date and as the same may thereafter from time to time be further
amended, supplemented, amended and restated or otherwise modified and in effect
on such date.


 


“Alternate
Base Rate” means, on any date and with respect to all Base Rate Loans, a
fluctuating rate of interest per annum equal to the greatest of (a) 2.50%,
(b) the Base Rate in effect on such day, (c) the Federal Funds Rate
in effect on such day plus 1⁄2 of 1% and (d) except during a LIBO
Rate Unavailability Period, the sum of 1.0% plus the LIBO Rate (Reserve
Adjusted) for a one month Interest Period beginning on such day (or if such day
is not a Business Day, the immediately preceding Business Day), provided
that, for the avoidance of doubt, the LIBO Rate (Reserve Adjusted) for any day
shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or
any successor or substitute page) at approximately 11:00 a.m. London time
on such day (without any rounding).  Any
change in the Alternate Base Rate due to a change in the Base Rate, the Federal
Funds Rate or the LIBO Rate (Reserve Adjusted) shall be effective from and
including the effective date of such change in the Base Rate, the Federal Funds
Rate or the LIBO Rate (Reserve Adjusted), respectively.  The Administrative Agent will give notice
promptly to the Borrower and the Lenders of changes in the Alternate Base Rate;
provided that the failure to give such notice shall not affect the
Alternate Base Rate in effect after such change.


 


“Applicable
Margin” means for Base Rate Loans and for LIBO Rate Loans, 6.00% and 7.00%,
respectively.


 


“Approved
Fund” means any Person (other than a natural Person) that (a) 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, and (b) is administered, advised or managed by a Lender, an
Affiliate of a Lender or an entity or an Affiliate of an entity that
administers, advises or manages a Lender.


 


“Asset
Swap” means a Disposition of assets in exchange for the substantially
contemporaneous receipt of assets of a similar nature and to be used by the
Borrower or a Subsidiary in accordance with Section 7.2.1, in each
case having a Fair Market Value comparable to the Fair Market Value of the
assets Disposed; provided that if the Borrower or a Subsidiary Guarantor



 


2

















 


Disposes
of such assets, Borrower or a Subsidiary Guarantor must receive such assets in
the exchange.


 


“Audited
Financial Statements” is defined in clause (b) of Section 7.1.1.


 


“Authorized
Officer” means, relative to any Obligor, those of its officers, general
partners or managing members (as applicable) whose signatures and incumbency
shall have been certified to the Administrative Agent and the Lenders pursuant to
Section 5.1.1.


 


“Average
Life” means, as of the date of determination, with respect to any
Indebtedness, the quotient obtained by dividing:


 


(1)                                  the sum of the products of
the numbers of years from the date of determination to the dates of each
successive scheduled principal payment of or redemption or similar payment with
respect to such Indebtedness multiplied by the amount of such payment by


 


(2)           the sum of all such payments.


 


“Base
Rate” means, at any time, the rate of interest per annum publicly announced
from time to time by the Administrative Agent in New York as its prime rate;
each change in the Base Rate shall be effective from and including the date
such change is publicly announced as being effective.  The Base Rate is not necessarily intended to
be the lowest rate of interest determined by the Administrative Agent in
connection with extensions of credit.


 


“Base
Rate Loan” means a Loan bearing interest at a fluctuating rate determined
by reference to the Alternate Base Rate.


 


“Borrower”
is defined in the preamble.


 


“Borrowing”
means the Loans of the same type and, in the case of LIBO Rate Loans, having
the same Interest Period made by all Lenders required to make such Loans on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.


 


“Borrowing
Request” means a Loan request and certificate duly executed by an
Authorized Officer of the Borrower substantially in the form of Exhibit B
hereto.


 


“Business
Day” means (a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in New
York, New York and (b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day which is a Business Day described in clause
(a) above and which is also a day on which dealings in Dollars are
carried on in the London interbank Eurodollar market.


 


“Capital
Expenditures” means, for any period, the aggregate amount of (a) all
expenditures of the Borrower and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, would be classified as
capital expenditures and (b) Capitalized 


 


3

















 


Lease
Liabilities incurred by the Borrower and its Subsidiaries during such
period.  The term Capital Expenditures
shall not include any expenditures for Permitted Acquisitions otherwise
permitted hereunder.


 


“Capital
Securities” means, with respect to any Person, all shares, interests,
participations or other equivalents (however designated, whether voting or
non-voting) of such Person’s equity capital, whether now outstanding or issued
after the Closing Date, including common shares, preferred shares, membership
interests in a limited liability company, limited or general partnership
interests in a partnership or any other equivalent of such ownership interest.


 


“Capitalized
Lease Liabilities” means, with respect to any Person, all monetary
obligations of such Person and its Subsidiaries under any leasing or similar
arrangement which have been (or, in accordance with GAAP, should be) classified
as capitalized leases, and for purposes of each Loan Document the amount of
such obligations at any time shall be the capitalized amount thereof at such
time, determined in accordance with GAAP, and the stated maturity thereof shall
be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a premium or a penalty.


 


“Cash
Equivalent Investment” means, at any time:


 


(a)           any direct
obligation of (or obligation unconditionally guaranteed by) the United States
(or any agency thereof, to the extent such obligations are supported by the
full faith and credit of the United States), in each case maturing not more
than one year after such time;


 


(b)           any direct
obligation of (or obligation unconditionally guaranteed by) a State of the
United States, a political subdivision thereof or a taxing authority thereof,
to the extent such obligations are rated investment grade by both Moody’s and
S&P and do not mature more than one year after such time;


 


(c)           commercial paper
maturing not more than 360 days from the date of issue, which is issued by (i) a
corporation (other than an Affiliate of any Obligor) organized under the laws
of any State of the United States or of the District of Columbia and rated “A-1”
or higher by S&P or “P-1” or higher by Moody’s, or (ii) any Lender (or
its holding company) other than a Designated Lender;


 


(d)           any certificate of
deposit, time deposit or bankers acceptance, maturing not more than one year
after its date of issuance, which is issued by either (i) any bank
organized under the laws of the United States (or any State thereof) and which
has (x) a credit rating of “A2” or higher from Moody’s or “A” or higher
from S&P and (y) a combined capital and surplus greater than
$500,000,000, or (ii) any Lender;


 


4

















 


(e)           any repurchase
agreement having a term of 90 days or less entered into with any Lender or any
commercial banking institution satisfying the criteria set forth in clause
(c)(i); or


 


(f)            shares of any
mutual fund whose investment guidelines restrict substantially all of such fund’s
investments to investments of the type specified in clauses (a) through
(e) above.


 


“Cash
Management Obligations”  means
obligations owed by the Company or any Subsidiary Guarantor to a Person who was
a Lender or an Affiliate of a Lender at the time of entry of such obligations
under this Agreement in respect of any overdraft and related liabilities
arising from treasury, depository, credit and debit card and cash management
services or any automated clearing house transfers of funds.


 


“Casualty
Event” means the damage, destruction or condemnation, as the case may be,
of property of any Person or any of its Subsidiaries.


 


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


 


“CERCLIS”
means the Comprehensive Environmental Response, Compensation and Liability
Information System List.


 


“Change
in Control” means:


 


(a)           any person or group
(within the meaning of Sections 13(d) and 14(d) under the Exchange
Act) shall become the ultimate “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act), directly or indirectly, of more than 30% of
the outstanding Voting Securities of Parent, collectively, beneficially and of
record on a fully diluted basis; or


 


(b)           the failure of
Parent at any time to directly own beneficially and of record on a fully
diluted basis 100% of the outstanding Capital Securities of the Borrower; or


 


(c)           during any period of
24 consecutive months, individuals who at the beginning of such period
constituted the Board of Directors of Parent (together with any new directors
whose election to such Board or whose nomination for election by the
stockholders of Parent was approved by a vote of a majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of Parent
then in office; or


 


(d)           the occurrence of a “change
of control” (or similarly defined term) under any of the indentures, agreements
or other instruments governing the New Notes, any Pari Passu Lien Indebtedness
or any Refinancing Indebtedness in respect thereof.


 


5
















 


“Closing
Date” means the date on which all the conditions precedent set forth in Section 5.1
shall be satisfied or waived.


 


“Closing
Date Certificate” means the certificate executed and delivered by an
Authorized Officer of the Borrower pursuant to the terms of this Agreement,
substantially in the form of Exhibit J hereto.


 


“Code”
means the Internal Revenue Code of 1986, and the regulations thereunder, in
each case as amended, reformed or otherwise modified from time to time.


 


“Collateral” shall mean, collectively,
all of the “Collateral” under the Security Agreement, the Mortgaged Property
and all other property of whatever kind and nature subject or purported to be
subject from time to time to a Lien under any Collateral Document.


 


“Collateral Documents” shall mean
the Security Agreement, the Mortgages, the Guaranty and each other security
document or pledge agreement delivered in accordance with applicable local or
foreign law to grant a valid, perfected security interest in any property as
collateral for the Obligations, and all Uniform Commercial Code or other
financing statements or instruments of perfection required by this Agreement,
the Security Agreement, any Mortgage or any other such security document or
pledge agreement to be filed with respect to the security interests in property
and fixtures created pursuant to the Security Agreement or any Mortgage and any
other document or instrument utilized to pledge or grant or purport to pledge
or grant a security interest or lien on any property as collateral for the
Obligations.


 


“Commitment”
means, as the context may require, the Revolving Loan Commitment or the Swing
Line Loan Commitment.


 


“Commitment
Amount” means, as the context may require, the Revolving Loan Commitment
Amount or the Swing Line Loan Facility Amount.


 


“Commitment
Termination Event” means:


 


(a)                                  the occurrence
of any Event of Default with respect to the Borrower described in clauses (a) through
(d) of Section 8.1.9; or


 


(b)                                 the occurrence
and continuance of any other Event of Default and either


 


(i) the declaration of all or any portion of
the Loans to be due and payable pursuant to Section 8.3, or


 


(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the Borrower that
the Commitments have been terminated pursuant to Section 8.3.


 


“Compliance
Certificate” means a certificate duly completed and executed by an
Authorized Officer of the Borrower, substantially in the form of Exhibit E
hereto.


 


6

















 


“Contingent
Liability” means any agreement, undertaking or arrangement by which any
Person guarantees, endorses or otherwise becomes or is contingently liable upon
(by direct or indirect agreement, contingent or otherwise, to provide funds for
payment, to supply funds to, or otherwise to invest in, a debtor, or otherwise
to assure a creditor against loss) the Indebtedness of any other Person (other
than by endorsements of instruments in the course of collection or deposit), or
guarantees the payment of dividends or other distributions upon the Capital
Securities of any other Person.  The
amount of any Person’s obligation under any Contingent Liability shall (subject
to any limitation set forth therein) be deemed to be the outstanding principal
amount of the debt, obligation or other liability guaranteed thereby.


 


“Continuation/Conversion
Notice” means a notice of continuation or conversion and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit C hereto.


 


“Controlled
Group” means all members of a controlled group of corporations and all
members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Borrower, are
treated as a single employer under Sections 414(b) or 414(c) of the
Code or Section 4001 of ERISA.


 


“Copyright
Security Agreement” means any Copyright Security Agreement executed and
delivered by any Obligor, in substantially the form of Exhibit C to
any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.


 


“Credit
Extension” means the making of a Loan by a Lender.


 


“Credit
Parties” means, collectively, the Lenders, the Administrative Agent and, in
each case, each of their respective successors, transferees and assigns.


 


“Default”
means any Event of Default or any condition, occurrence or event which, after
notice or lapse of time or both, would constitute an Event of Default.


 


“Defaulting
Lender” means any Lender, as determined by the Administrative Agent, that (a) has
not made available to the Administrative Agent such Lender’s ratable portion of
a requested borrowing within three Business Days of the date required to be
funded by it hereunder or has not reimbursed the Swing Line Lender for such
Lender’s ratable portion of the amount of Swing Line Loans, in each case in
accordance with Sections 2.3.1 and 2.3.2, respectively; (b) has
notified the Borrower or the Administrative Agent or any Lender in writing that
it does not intend to comply with its obligations under Section 2.3.1
or 2.3.2 or has made a public statement to the effect that it does not
intend to comply with its obligations under Section 2.3.1 or 2.3.2
or under other agreements in which it commits to extend credit; (c) has
not, within three Business Days after request by the Administrative Agent,
confirmed that it will comply with the terms of this Agreement relating to its
obligations to fund prospective Loans and participations in then outstanding
Swing Line; (d) has otherwise failed to pay over to the Administrative
Agent or any other Lender any other amount required to be paid by it hereunder
within five Business Days of the date when due, unless the subject of a good
faith dispute; (e) has become or is insolvent or 


 


7

















 


has
a parent company that has become or is insolvent; or (f) is the subject
of, or is a Subsidiary of a Person that is the subject of, a bankruptcy,
insolvency or similar proceeding or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar Person charged
with reorganization or liquidation of its business or custodian, appointed for
it, or has taken any action in furtherance of, or indicating its consent to,
approval of or acquiescence in any such proceeding or appointment or has a
parent company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent to, approval
of or acquiescence in any such proceeding or appointment.


 


“Designated
Lender” means a Defaulting Lender or a Downgraded Lender.


 


“Disclosure
Schedule” means the Disclosure Schedule attached hereto as Schedule I,
as it may be amended, supplemented, amended and restated or otherwise modified
from time to time by the Borrower with the written consent of the Required
Lenders.


 


“Disposition”
(or similar words such as “Dispose”) means any sale, transfer, lease,
contribution or other conveyance (including by way of merger) of, or the
granting of options, warrants or other rights to, any Person’s or such Person’s
Subsidiaries’ assets (including accounts receivable and Capital Securities of
such Person’s Subsidiaries) to any other Person in a single transaction or
series of transactions.


 


“Disqualified
Capital Securities” means, with respect to any Person, Capital Securities
which by their terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder) or
upon the happening of any event:


 


(1)                                  mature or are mandatorily
redeemable (other than redeemable only for a Capital Securities of such Person
which is not itself a Disqualified Capital Security) pursuant to a sinking fund
obligation or otherwise;


 


(2)                                  are convertible
or exchangeable at the option of the holder for Indebtedness or Disqualified
Capital Securities; or


 


(3)                                  are mandatorily
redeemable or must be purchased upon the occurrence of any event, in whole or
in part,


 


in
each case on or prior to the first anniversary of the Stated Maturity Date.


 


“DOJ
Costs” means non-recurring fees, expenses and amounts paid in defense of,
or to discharge judgments, pursuant to settlements or as fines or penalties
arising from or related to, lawsuits, governmental proceedings or regulatory
actions or investigations related to or in connection with, the DOJ
Investigation.


 


8

















 


“DOJ
Investigation” means the investigation pending on the Closing Date by the
Antitrust Division of the United States Department of Justice into possible
antitrust violations in the packaged ice industry by Parent and its
Subsidiaries.


 


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


 


“Downgraded
Lender” means any Lender that has a non-investment grade rating from Moody’s,
S&P or another nationally recognized rating agency.


 


“EBITDA”
means, for any applicable period, the sum of (a) Net Income, plus (b) in
each case without duplication, to the extent deducted in determining Net Income
for such period, the sum of (i) amounts attributable to depreciation and
amortization, (ii) income tax expense, (iii) Interest Expense, (iv) any
other non-cash charges (less non-cash income) for which no cash reserves
(or receivables) have been or will be set aside (or created), including
non-cash compensation expenses, (v) any loss from the extinguishment of
Indebtedness; (vi) non-recurring fees, charges and expenses directly
related to the Prior Transactions and the Transaction in an aggregate amount
during the term of this Agreement not to exceed $15,000,000 (to the extent such
fees, charges and expenses are not capitalized or otherwise deferred), (vii) non-recurring
DOJ Costs not in excess of $15,000,000 in the aggregate during the term of this
Agreement; and (viii) all fees and expenses incurred in connection with
Permitted Acquisitions to the extent accounted for as expenses.


 


“Eligible
Assignee” means (a) a Lender, (b) an Affiliate of a Lender, (c) an
Approved Fund or (d) any other Person (other than a natural Person) other
than the Borrower or any of its Affiliates; provided that (x) in
the case of clauses (b), (c) and (d), such Affiliate
of a Lender, Approved Fund or Person is approved by the Swing Line Lender and
the Administrative Agent and (y) in the case of clause (d), unless
a Default has occurred and is continuing, the Borrower shall approve of such
Person.  Each approval referred to in
this definition shall not be unreasonably withheld or delayed.


 


“Environment”
means ambient air, indoor air, surface water, groundwater, drinking water, land
surface and subsurface strata and natural resources.


 


“Environmental
Laws” means all applicable foreign, federal, state or local statutes, laws
(including common law), ordinances, codes, rules, regulations and final orders
of a Governmental Authority (including consent decrees and administrative
orders) relating to pollution and the protection of the environment and human
health (to the extent related to exposure to Hazardous Material).


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto of similar import, together with the regulations
thereunder, in each case as in effect from time to time.  References to sections of ERISA also refer to
any successor sections thereto.


 


“Event
of Default” is defined in Section 8.1.


 


9

















 


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


 


“Exchange
Offer” means the exchange offer made to the holders of the Existing Parent
Notes to exchange such Existing Parent Notes for the Second Lien Notes upon the
terms set forth in the Offer to Purchase, which exchange offer expired on March 19,
2010.


 


“Excluded
Taxes” means, with respect to any payment to be made by or on account of
any obligation of any Obligor hereunder or under any other Loan Document, (i) any
Taxes imposed on (or measured by) its overall gross income or net income by the
jurisdiction under the laws of which the Credit Party receiving the payment 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, (ii) any Taxes
in the nature of the branch profits tax imposed by Section 884(a) of
the Code that is imposed by any jurisdiction described in clause (a) above;
(iii) any other Taxes imposed by a jurisdiction as a result of any other
present or former connection with such jurisdiction (excluding any connection
with such jurisdiction arising solely from such recipient having executed,
delivered, enforced, become a party to, performed its obligations under,
received payments under, received or perfected a security interest under,
and/or engaged in any other transaction pursuant to, any Loan Document), (iv) in
the case of a Non-U.S. Credit Party, any U.S. federal withholding Tax that is
imposed pursuant to any laws in effect at the time such Non-U.S. Credit Party
becomes a party to this Agreement (or designates a new lending office), except
to the extent that such Non-U.S. Credit Party (or its assignor, if any) was
entitled, immediately prior to designation of a new lending office (or
assignment), to receive additional amounts from an Obligor with respect to any
such withholding Tax pursuant to clause (a) of Section 4.6
and (v) any withholding Tax that is attributable to a Credit Party’s
failure to comply with clause (e) of Section 4.6.


 


“Exemption
Certificate” is defined in clause (e) of Section 4.6.


 


“Existing
Credit Agreement” is defined in the recitals.


 


“Existing
Lenders” is defined in the recitals.


 


“Existing
Loans” is defined in the recitals.


 


“Existing
Parent Notes” means the 101⁄2% Senior Discount Notes of Parent due 2012.


 


“Fair
Market Value” means, with respect to any asset, the price (after taking
into account any liabilities relating to such asset) that would be negotiated
in an arm’s-length transaction for cash between a willing seller and a willing
and able buyer, neither of which is under any compulsion to complete the
transaction, as such price is determined in good faith by management of the
Borrower or by the Board of Directors of the Borrower or a duly authorized
committee thereof.  Fair Market Value
(other than of any asset with a public trading market) in excess of $5,000,000
shall be determined by the Board of Directors of the Borrower acting reasonably
and in good faith and shall be evidenced by a board resolution delivered to the
Administrative Agent.


 


10

















 


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


 


“Fee
Letters” means (i) the confidential fee letter, dated the Original
Closing Date, from the Administrative Agent to the Borrower, as amended, supplemented,
amended and restated or otherwise modified from time to time, and (ii) each
other fee letter, dated the Closing Date, between the Borrower and any Lender.


 


“Filing
Statements” means all UCC financing statements or other similar financing
statements and UCC termination statements required pursuant to the Loan
Documents.


 


“First
Lien Intercreditor Agreement” means that certain first lien intercreditor
agreement dated the Original Closing Date, among the Administrative Agent and
the collateral agent for the First Lien Notes.


 


“First
Lien Notes” means the 11.25% First Lien Notes due 2015 of Borrower.


 


“Fiscal
Quarter” means a quarter ending on the last day of March, June, September or
December.


 


“Fiscal
Year” means any period of twelve consecutive calendar months ending on December 31;
references to a Fiscal Year with a number corresponding to any calendar year (e.g.,
the “2010 Fiscal Year”) refer to the Fiscal Year ending on December 31 of
such calendar year.


 


“Foreign
Pledge Agreement” means any supplemental pledge agreement governed by the
laws of a jurisdiction other than the United States, the District of Columbia
or a State thereof executed and delivered by the Borrower or any of its
Subsidiaries pursuant to the terms of this Agreement, in form and substance
reasonably satisfactory to the Administrative Agent, as may be necessary or
desirable under the laws of organization or incorporation of a Subsidiary to
further protect or perfect the Lien on and security interest in any Collateral
(as defined in the Security Agreement).


 


“Foreign
Subsidiary” means any Subsidiary that is not a U.S. Subsidiary.


 


“F.R.S.
Board” means the Board of Governors of the Federal Reserve System or any
successor thereto.


 


“GAAP”
means (a) subject to clause (b) below, with respect to the
interpretation of all accounting terms used herein and in each other Loan
Document, the calculation of all accounting determinations and computations
required to be made hereunder or thereunder (including under 


 


11

















 


Section 7.2.4 and in respect
of any defined terms used herein or in any other Loan Document), those U.S.
generally accepted accounting principles applied in the preparation of the
Borrower’s audited consolidated financial statements for the Fiscal Year ended December 31,
2009 and (b) with respect to the financial statements of the Borrower
required to be delivered pursuant to clauses (a) and (b) of
Section 7.1.1 or any similar financial statements of the Borrower
or any of its Subsidiaries required to be delivered hereunder or under any
other Loan Document, U.S. generally accepted accounting principles in effect at
the time (or for the period) to which such financial statements relate.  Notwithstanding the foregoing, the treatment
of operating leases under GAAP will, for purposes of this Agreement, be deemed
to be what such treatment is on the Closing Date.


 


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


 


“Governmental Real Property Disclosure
Requirements” shall mean any requirement of law of any Governmental
Authority requiring notification of the buyer, lessee, mortgagee, assignee or
other transferee of any real property, facility, establishment or business, or
notification, registration or filing to or with any Governmental Authority, in
connection with the sale, lease, mortgage, assignment or other transfer
(including any transfer of control) of any real property, facility,
establishment or business, of the actual or threatened presence or release in
or into the environment, or the use, disposal or handling of Hazardous Material
on, at, under or near the real property, facility, establishment or business to
be sold, leased, mortgaged, assigned or transferred.


 


“Granting
Lender” is defined in clause (i) of Section 10.11.


 


“Guarantor”
means Parent and each Subsidiary Guarantor.


 


“Guaranty”
means the Guaranty executed and delivered by an Authorized Officer of Parent
and each U.S. Subsidiary pursuant to the terms of this Agreement, substantially
in the form of Exhibit G hereto, as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with the
terms hereof and thereof.


 


“Hazardous
Material” shall mean any material or substance that (a) constitutes a “hazardous
substance” as defined by CERCLA, “hazardous waste” as defined by the Resource
Conservation and Recovery Act, as amended, or a “pollutant”, “contaminant”, “hazardous
material”, “hazardous chemical”, or “regulated substance” within the meaning of
any applicable Environmental Laws, or (b) is otherwise regulated by, or
that otherwise gives rise to liability under, any applicable Environmental
Laws.  Without limiting the generality of
the foregoing, Hazardous Material shall include any substance that contains any
ammonia, ammonia hydroxide, asbestos, polychlorinated biphenyls, or petroleum,
or that is flammable, explosive, radioactive or corrosive.


 


12

















 


“Hedging
Obligations” means, with respect to any Person, all liabilities of such
Person under currency exchange agreements, interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, commodity
price swaps, caps and collars and all other agreements or arrangements designed
to protect such Person against fluctuations in interest rates, currency
exchange rates, prices of diesel fuel and the impact of weather on such Person’s
business.


 


“herein”,
“hereof”, “hereto”, “hereunder” and similar terms contained
in any Loan Document refer to such Loan Document as a whole and not to any
particular Section, paragraph or provision of such Loan Document.


 


“Impermissible
Qualification” means any qualification or exception to the opinion or
certification of any independent public accountant as to any financial
statement of the Borrower


 


(a)                                  which is of a “going
concern” or similar nature;


 


(b)                                 which relates
to the limited scope of examination of matters relevant to such financial
statement; or


 


(c)                                  which relates to
the treatment or classification of any item in such financial statement and
which, as a condition to its removal, would require an adjustment to such item
the effect of which would be to cause the Borrower to be in Default.


 


“including”
and “include” means including without limiting the generality of any
description preceding such term, and, for purposes of each Loan Document, the
parties hereto agree that the rule of ejusdem  generis shall
not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.


 


“Indebtedness”
of any Person means:


 


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


 


(b)                                 all
obligations, contingent or otherwise, relative to the face amount of all
letters of credit, whether or not drawn, and banker’s acceptances issued for
the account of such Person;


 


(c)                                  all Capitalized
Lease Liabilities of such Person;


 


(d)                                 for purposes of
Section 8.1.5 only, all other items which, in accordance with GAAP,
would be included as liabilities on the balance sheet of such Person as of the
date at which Indebtedness is to be determined;


 


(e)                                  net Hedging
Obligations of such Person;


 


13

















 


(f)                                    whether or not
so included as liabilities in accordance with GAAP, all obligations of such
Person to pay the deferred purchase price of property or services (excluding
trade accounts payable in the ordinary course of business which are not overdue
for a period of more than 90 days or, if overdue for more than 90 days, as to
which a dispute exists and adequate reserves in conformity with GAAP have been established
on the books of such Person), and indebtedness secured by (or for which the
holder of such indebtedness has an existing right, contingent or otherwise, to
be secured by) a Lien on property owned or being acquired by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse;


 


(g)                                 obligations
arising under Synthetic Leases;


 


(h)                                 all Contingent
Liabilities of such Person in respect of any of the foregoing; and


 


(i)                                     all
Disqualified Capital Securities of such Person.


 


The
Indebtedness of any Person shall include the Indebtedness of any other Person
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such Person, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.


 


“Indemnified
Liabilities” is defined in Section 10.4.


 


“Indemnified
Parties” is defined in Section 10.4.


 


“Indemnified
Taxes” means any Taxes other than Excluded Taxes.


 


“Intercreditor
Agreements” shall mean the collective reference to the First Lien
Intercreditor Agreement and the Junior Lien Intercreditor Agreement, conformed
copies of which are attached as Exhibit L and Exhibit M hereto,
respectively, as the same may be amended, modified or otherwise changed in
accordance with the terms hereof and thereof.


 


“Interest
Expense” means, for any applicable period, the aggregate interest expense,
including the portion of any cash payments made or accrued in respect of
Capitalized Lease Liabilities allocable to interest expense, net of interest
income, of the Borrower and its Subsidiaries for such applicable period
determined in accordance with GAAP.


 


“Interest
Period” means, relative to any LIBO Rate Loan, the period beginning on (and
including) the date on which such LIBO Rate Loan is made or continued as, or
converted into, a LIBO Rate Loan pursuant to Sections 2.3 or 2.4
and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three or six months thereafter (or, if such month has no
numerically corresponding day, on the last Business Day of such month), as the
Borrower may select in its relevant notice pursuant to Sections 2.3 or 2.4;
provided that:


 


14

















 


(a)                                  the Borrower
shall not be permitted to select Interest Periods to be in effect at any one
time which have expiration dates occurring on more than ten different dates;


 


(b)                                 if such
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next following Business Day (unless such next
following Business Day is the first Business Day of a calendar month, in which
case such Interest Period shall end on the Business Day next preceding such
numerically corresponding day); and


 


(c)                                  no Interest
Period for any Loan may end later than the Stated Maturity Date for such Loan.


 


“Investment”
means, relative to any Person,


 


(a)                                  any loan,
advance or extension of credit made by such Person to any other Person,
including the purchase by such Person of any bonds, notes, debentures or other
debt securities of any other Person;


 


(b)                                 Contingent
Liabilities in favor of any other Person; and


 


(c)                                  any Capital
Securities held by such Person in any other Person.


 


The
amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if
made by the transfer or exchange of property other than cash, be deemed to have
been made in an original principal or capital amount equal to the fair market
value of such property at the time of such Investment.


 


“JPMorgan”
is defined in the recitals.


 


“Junior
Lien Intercreditor Agreement” means that certain junior lien intercreditor
agreement dated the Original Closing Date, among the Administrative Agent, the
collateral agent for the First Lien Notes and the collateral agent for the
Second Lien Notes.


 


“Lender
Assignment Agreement” means an assignment agreement substantially in the
form of Exhibit D hereto.


 


“Lenders”
is defined in the preamble.


 


“Lender’s
Environmental Liability” means any and all losses, liabilities,
obligations, penalties, claims, litigation, demands, defenses, costs,
judgments, suits, proceedings, damages (including consequential damages),
reasonable disbursements or expenses of any kind or nature whatsoever, whether
or not based on strict liability (including reasonable attorneys’ fees at trial
and appellate levels; reasonable experts’ fees and disbursements and expenses
incurred in investigating, defending against or prosecuting any litigation,
matter, claim or proceeding; and reasonable consultant fees, disbursements and
expenses) which may at any time be imposed upon,


 


15
















 


incurred
by or asserted or awarded against the Administrative Agent or any Lender or any
of such Person’s Affiliates, shareholders, directors, officers, employees, and
agents in connection with or arising from:


 


(a)                                  the Release,
threatened Release or presence of any Hazardous Material at, from, on, in,
under or affecting all or any portion of any property owned now or formerly,
operated or used by the Borrower or any of its Subsidiaries, or their
respective predecessors in interest, or resulting from activities of the
Borrower or any of its Subsidiaries or any of their respective predecessors;


 


(b)                                 any
misrepresentation, inaccuracy or breach of any warranty, contained or referred
to in Section 6.12 or the breach of any covenant in Section 7.1.6;


 


(c)                                  any actual or
alleged violation by the Borrower or any of its Subsidiaries of any
Environmental Laws; or


 


(d)                                 the imposition
of any lien for damages caused by or for the recovery of any costs for the
cleanup, Release or threatened Release of Hazardous Material by the Borrower or
any of its Subsidiaries, or in connection with any Release or threatened
Release of Hazardous Material at, on, under or from any property owned or
operated at any time by the Borrower or any of its Subsidiaries.


 


“Lending
Office” means the office of a Lender designated as its “Lending Office” on Schedule
II hereto or in a Lender Assignment Agreement, or such other office
designated from time to time by notice from such Lender to the Borrower and the
Administrative Agent, whether or not outside the United States.


 


“Leverage
Ratio” means, as of the last day of any Fiscal Quarter, the ratio of (a) Loans
outstanding on the last day of such Fiscal Quarter to (b) EBITDA computed
for the period consisting of such Fiscal Quarter and each of the three
immediately preceding Fiscal Quarters, giving effect to any adjustments (if
any) referred to in clause (b) of Section 1.4.


 


“LIBO
Rate” means, with respect to any LIBO Rate Loan for any Interest Period,
the greatest of (a) 1.50% and (b) the rate appearing on Reuters
Screen LIBOR01 Page (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate
quotations comparable to those currently provided on such page of such
Service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period, as the rate for dollar deposits with a maturity comparable to such
Interest Period.  In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with
respect to such LIBO Rate Loan for such Interest Period shall be the greatest
of (a) 1.50% and (b) the rate at which dollar deposits of $5,000,000
and for a maturity comparable to such Interest Period are offered by the
principal London office of the Administrative Agent in immediately 


 


16

















 


available
funds in the London interbank market at approximately 11:00 a.m. London
time, two Business Days prior to the commencement of such Interest Period.


 


“LIBO
Rate Loan” means a Loan bearing interest, at all times during an Interest
Period applicable to such Loan, at a rate of interest determined by reference
to the LIBO Rate (Reserve Adjusted).


 


“LIBO
Rate (Reserve Adjusted)” means, relative to any Loan to be made, continued
or maintained as, or converted into, a LIBO Rate Loan for any Interest Period,
a rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the
LIBOR Reserve Percentage.  The LIBO Rate
(Reserve Adjusted) for any Interest Period for LIBO Rate Loans will be
determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect two Business Days before the first day of such Interest
Period.


 


“LIBO
Rate Unavailability Period” means any period of time during which a notice
delivered to the Borrower in accordance with Section 4.2(a), (b) or
(c) shall remain in force and effect.


 


“LIBOR
Reserve Percentage” means, relative to any Interest Period for LIBO Rate
Loans, the reserve percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, emergency, supplemental,
marginal and other reserves and taking into account any transitional
adjustments or other scheduled changes in reserve requirements) specified under
regulations issued from time to time by the F.R.S. Board and then applicable to
assets or liabilities consisting of or including “Eurocurrency Liabilities”, as
currently defined in Regulation D of the F.R.S. Board, having a term
approximately equal or comparable to such Interest Period.


 


“Lien”
means any security interest, mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or otherwise), charge against
or interest in property, or other priority or preferential arrangement of any
kind or nature whatsoever, in each case to secure payment of a debt or
performance of an obligation.


 


“Loan”
means, as the context may require, a Revolving Loan or a Swing Line Loan of any
type.


 


“Loan
Documents” means, collectively, this Agreement, the Notes, each Fee Letter,
each Guaranty, each Collateral Document and each other agreement, certificate,
document or instrument delivered in connection with any Loan Document, whether
or not specifically mentioned herein or therein; provided that for
purposes of any agreement pursuant to which the Administrative Agent is granted
a Lien to secure the Obligations, the term “Loan Document” shall include the
documentation related to Cash Management Obligations.


 


“Material
Adverse Effect” means a material adverse effect on (a) the condition
(financial or otherwise), business, operations, assets, liabilities (contingent
or otherwise) or properties of 


 


17

















 


the
Borrower and its Subsidiaries taken as a whole, (b) the rights and
remedies of any Secured Party under the Loan Documents taken as a whole or (c) the
ability of Parent, the Borrower or any Significant Subsidiary to perform its
Obligations under any Loan Document.


 


“Minimum Liquidity”
means, at any time, the sum of (i) the amount of the Borrower’s and the
Subsidiary Guarantors’ unrestricted cash and Cash Equivalent Investments at
such time and (ii) the difference between (x) the Revolving Loan
Commitment Amount at such time and (y) the aggregate outstanding Revolving
Loans and Swing Line Loans at such time.


 


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


 


“Mortgage”
means an agreement, a mortgage, deed of trust or any other document creating or
evidencing a Lien on Mortgaged Property (which Lien secured thereby shall be in
a maximum amount of either (x) if such Mortgaged Property is situated in
Alabama, Florida, Georgia, Oklahoma, Virginia or any other state/commonwealth
that imposes a tax/levy on the recordation of a mortgage, deed of trust or any
other document creating or evidencing a lien on real property, 115% of the book
value or cost (whichever is higher) of such Mortgaged Property or (y) if
such Mortgaged Property is situated in Arizona, Colorado, Louisiana, North
Carolina, Texas, West Virginia or any other state/commonwealth that does not
impose a tax/levy on the recordation of a mortgage, deed of trust or any other
document creating or evidencing a lien on real property, the maximum principal
amount of the Loan) executed, acknowledged and delivered by each Obligor that
is the owner of the respective Mortgaged Property in favor of the
Administrative Agent for the benefit of the Secured Parties, substantially in
the form attached hereto as Exhibit N, subject to modification necessary
for recording in the recording office of each applicable political subdivision
(i.e. county) where each such Mortgaged
Property is situated, as amended, supplemented, amended and restated or
otherwise modified from time to time.


 


“Mortgaged
Property” means (a) all real property owned by any Obligor on the
Closing Date with a book value or cost (whichever is higher) of at least
$1,500,000 (which properties owned as of the Closing Date are described in Item
6.9(b) of the Disclosure Schedule) and (b) all other real
property, if any, which shall be subject to a Mortgage delivered pursuant to clause
(j) of Section 5.1.5 and Section 7.1.8.


 


“Net
Casualty Proceeds” means, with respect to any Casualty Event, the amount of
any insurance proceeds or condemnation awards (net of any taxes actually paid
or estimated by the Borrower to be payable in cash) received by the Borrower or
any of its Subsidiaries in connection with such Casualty Event (net of all
reasonable collection expenses thereof), but excluding any proceeds or awards
required to be paid to a creditor (other than the Lenders) which holds a Lien
permitted by Section 7.2.3 on the property which is the subject of
such Casualty Event; provided that if the amount of any estimated taxes
exceeds the amount of taxes actually required to be paid in cash in respect of
such Casualty Event within 12 months of such Casualty Event, the aggregate
amount of such excess shall constitute Net Casualty Proceeds.


 


“Net
Debt Proceeds” means, with respect to each of (a) the incurrence, sale
or issuance by the Borrower or any of its Subsidiaries after the Closing Date
of any Indebtedness which is 


 


18

















 


not
expressly permitted by Section 7.2.2, or (b) the issuance by
the Borrower of any of its Subsidiaries of Disqualified Capital Securities, the
excess of (x) the gross cash proceeds actually received by such Person
from such incurrence, sale or issuance, less (y) all reasonable
arranging or underwriting fees and commissions, and all legal, investment banking,
brokerage and accounting and other professional fees, sales commissions and
disbursements and other reasonable closing costs and expenses, in each case,
actually incurred and paid in cash in connection with such incurrence, sale or
issuance.


 


“Net
Disposition Proceeds” means the gross cash proceeds actually received by
the Borrower or its U.S. Subsidiaries from any Disposition pursuant to clause
(c) of Section 7.2.10 and any cash payment actually
received in respect of promissory notes or other non-cash consideration
delivered to the Borrower or its U.S. Subsidiaries in respect of such specified
Dispositions, minus the sum of (a) all reasonable legal, investment
banking, brokerage and accounting fees and expenses incurred in connection with
such Disposition, (b) all reasonable expenses to prepare such asset for
sale and all transportation costs in connection with such sale, (c) all
taxes actually paid or estimated by the Borrower to be payable in cash within
the next 12 months in connection with such Disposition, (d) payments made
by the Borrower or its U.S. Subsidiaries to retire Indebtedness (other than the
Credit Extensions) where payment of such Indebtedness is required in connection
with such Disposition and (e) the amount of any reserves established by
the Borrower or any of the U.S. Subsidiaries to fund contingent liabilities
reasonably estimated to be payable during the 12 month period following such
event that such Person’s chief financial officer determined in good faith are
directly attributable to such event; provided that if the amount of any
estimated taxes pursuant to clause (c) exceeds the amount of taxes
actually required to be paid in cash in respect of such Disposition or the
amount of any estimated reserves pursuant to clause (e) above exceeds
the amount of reserves actually required to be paid in cash in respect of such
Disposition, in each case within 12 months of such Disposition, the aggregate
amount of such excess shall thereupon constitute Net Disposition Proceeds.


 


“Net
Income” means, for any period, the aggregate of all amounts (exclusive of
all amounts in respect of any extraordinary gains or losses) which would be
included as net income on the consolidated financial statements of the Borrower
and its Subsidiaries for such period.


 


“New
Notes” means the collective reference to the First Lien Notes and the
Second Lien Notes.


 


“Non-U.S.
Credit Party” means any Credit Party that is not a “United States person”,
as defined under Section 7701(a)(30) of the Code.


 


“Note”
means, as the context may require, a Revolving Note or a Swing Line Note.


 


“Obligations”
means all obligations (monetary or otherwise, whether absolute or contingent,
matured or unmatured) of the Borrower and each other Obligor arising under or
in connection with a Loan Document or any Cash Management Obligations,
including the principal of and interest (including interest accruing during the
pendency of any proceeding of the type described in Section 8.1.9,
whether or not allowed in such proceeding) on the Loans and any fees, costs, 


 


19

















 


expenses
and indemnities, whether primary, secondary, direct, contingent, fixed or
otherwise (including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding), of Borrower and the other
Obligors under this Agreement and the other Loan Documents.


 


“Obligor”
means, as the context may require, Parent, the Borrower, Subsidiary Guarantors
and each other Person (other than a Secured Party) obligated under any Loan
Document.


 


“Offer
to Purchase” means the offer to purchase dated February 22, 2010
issued by the Borrower in connection with the Exchange Offer.


 


“Organic
Document” means, relative to any Obligor, as applicable, its certificate of
incorporation, by laws, certificate of partnership, partnership agreement,
certificate of formation, limited liability agreement, operating agreement and
all shareholder agreements, voting trusts and similar arrangements applicable
to any of such Obligor’s Capital Securities.


 


“Original
Closing Date” is defined in the recitals.


 


“Other
Taxes” means any and all present or future stamp, documentary or similar
excise Taxes or levies that arise on account of any payment made or required to
be made under any Loan Document or from the execution, delivery, registration,
recording or enforcement of, or otherwise with respect to any Loan Document.


 


“Parent”
means Reddy Ice Holdings, Inc., a Delaware corporation.


 


“Pari
Passu Lien Indebtedness” shall have the meaning assigned thereto in the
First Lien Intercreditor Agreement.


 


“Participant”
is defined in clause (d) of Section 10.11.


 


“Participant
Register” is defined in clause (d) of Section 10.11.


 


“Patent
Security Agreement” means any Patent Security Agreement executed and
delivered by any Obligor, in substantially the form of Exhibit A to
the Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.


 


“Patriot
Act” is defined in Section 10.17.


 


“PBGC”
means the Pension Benefit Guaranty Corporation and any Person succeeding to any
or all of its functions under ERISA.


 


“Pension
Plan” means a “pension plan”, as such term is defined in Section 3(2) of
ERISA, which is subject to Title IV of ERISA (other than a multiemployer plan
as defined in Section 4001(a)(3) of ERISA), and to which the Borrower
or any corporation, trade or business that is, along with the Borrower, a
member of a Controlled Group, may have liability, including 


 


20

















 


any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by
reason of being deemed to be a contributing sponsor under Section 4069 of
ERISA.


 


“Percentage”
means any Lender’s Revolving Loan Percentage.


 


“Permitted
Acquisition” means an acquisition (whether pursuant to an acquisition of
Capital Securities, assets or otherwise) by the Borrower or any Subsidiary of a
business, a line of business or an operating lease from any Person in which the
following conditions are satisfied:


 


(a)                                  immediately
before and after giving effect to such acquisition, no Default shall have
occurred and be continuing or would result therefrom (including under Section 7.2.1);


 


(b)                                 the Borrower
shall have delivered to the Administrative Agent a Compliance Certificate for
the period of the most recently completed four full Fiscal Quarters immediately
preceding such acquisition (prepared in good faith and in a manner and using
such methodology which is consistent with the most recent financial statements
delivered pursuant to Section 7.1.1) giving pro  forma
effect to the consummation of such acquisition and evidencing compliance with
the covenants set forth in Section 7.2.4 for the immediately
preceding test date;


 


(c)                                  [Reserved];


 


(d)                                 the Revolving
Loan Commitment Amount less the aggregate outstanding principal
amount of Revolving Loans and Swing Line Loans on the date such acquisition is
consummated (after giving effect to such acquisition and any financing in
connection therewith) shall be at least $5,000,000;


 


(e)                                  the business,
line of business or operating lease to be acquired shall be held by the
Borrower or a Subsidiary Guarantor (or a Person that becomes a Subsidiary
Guarantor upon such acquisition); and


 


(f)                                    to the extent a
Person is acquired in such acquisition, such Person shall be Solvent and comply
with Section 7.1.8.


 


“Person”
means any natural person, corporation, limited liability company, partnership,
joint venture, association, trust or unincorporated organization, Governmental
Authority or any other legal entity, whether acting in an individual, fiduciary
or other capacity.


 


“Pledged
Subsidiary” means each Subsidiary in respect of which the Administrative
Agent has been granted a security interest in or a pledge of (a) any of
the Capital Securities of such Subsidiary or (b) any intercompany notes of
such Subsidiary owing to the Borrower or another Subsidiary.


 


21

















 


“Prior
Transactions” means (i) the entry into the Existing Credit Agreement
on the Original Closing Date, (ii) the issuance of the New Notes on the
Original Closing Date, (iii) the Exchange Offer and (iv) the
repayment of the Borrower’s prior credit agreement on the Original Closing
Date.


 


“Priority
Payment Lien Obligations” has the meaning set forth in the First Lien
Intercreditor Agreement.


 


“Proceeds
Account” is defined in clause (d) of Section 3.1.1.


 


“Quarterly
Payment Date” means the last Business Day of March, June, September and
December.


 


“Ratification”
means that certain Ratification of Collateral Documents dated as of the Closing
Date, by the Borrower and the Parent, as amended, supplemented, amended and
restated or otherwise modified from time to time.


 


“Reddy
Ice Corporation” means Reddy Ice Corporation, a Nevada corporation.


 


“Refinance”
means, in respect of any Indebtedness, to refinance, extend, renew, refund,
repay, prepay, redeem, purchase, defease or retire, or to issue other
Indebtedness in exchange or replacement for, such Indebtedness.  “Refinanced” and “Refinancing” shall have
correlative meanings.


 


“Refinancing
Indebtedness” means Indebtedness that Refinances any Indebtedness of the
Borrower or any Subsidiary of the Borrower existing on the Closing Date or
incurred in compliance with this Agreement, including Indebtedness that
Refinances Refinancing Indebtedness; provided, however, that:


 


(1)                                  such Refinancing
Indebtedness has a stated maturity no earlier than the stated maturity of the
Indebtedness being Refinanced;


 


(2)                                  such Refinancing
Indebtedness has an Average Life at the time such Refinancing Indebtedness is
Incurred that is equal to or greater than the Average Life of the Indebtedness
being Refinanced;


 


(3)                                  such Refinancing
Indebtedness has an aggregate principal amount (or if incurred with original
issue discount, an aggregate issue price) that is equal to or less than the
aggregate principal amount (or if incurred with original issue discount, the
aggregate accreted value) then outstanding or committed (plus fees and
expenses, including any premium and defeasance costs) under the Indebtedness
being Refinanced;


 


(4)                                  if the Indebtedness being
Refinanced is subordinated in right of payment to the Obligations, such
Refinancing Indebtedness is subordinated in right of payment to 


 


22

















 


the
Obligations at least to the same extent as the Indebtedness being Refinanced;
and


 


(5)                                  the covenants, events of
default, interest rates, yield, events of default and remedies relating thereto
shall not be materially less favorable to the Lenders than those contained in
the Indebtedness being Refinanced;


 


provided  further,
however, that Refinancing Indebtedness shall not include Indebtedness of
a Subsidiary that is not a Guarantor that Refinances Indebtedness of the
Borrower or a Guarantor.


 


“Refunded
Swing Line Loans” is defined in clause (b) of Section 2.3.2.


 


“Register”
is defined in clause (a) of Section 2.7.


 


“Release”
means any spilling, emitting, leaking, pumping, pouring, injecting, escaping,
emptying, discharging, leaching, dumping or disposing into or through the
indoor or outdoor Environment.


 


“Replacement
Lender” is defined in clause (g) of Section 10.11.


 


“Replacement
Notice” is defined in Section 4.10.


 


“Required
Lenders” means, at any time, Lenders holding more than 50% of the Total
Exposure Amount.


 


“Resource
Conservation and Recovery Act” means the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901, et seq.,
as amended.


 


“Restricted
Payment” means the declaration or payment of any dividend (other than
dividends payable solely in Capital Securities (other than Disqualified Capital
Securities) of the Borrower or any Subsidiary) on, or the making of any payment
or distribution on account of, or setting apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of any class of Capital Securities of the Borrower or any
Subsidiary or any warrants or options to purchase any such Capital Securities
of the Borrower or such Subsidiary, whether now or hereafter outstanding, or
the making of any other distribution in respect thereof, either directly or
indirectly, whether in cash or property, obligations of the Borrower or any
Subsidiary or otherwise (other than distributions payable solely in Capital
Securities (other than Disqualified Capital Securities) of the Borrower or any
of its Subsidiaries).


 


“Revolving
Loan Commitment” means, relative to any Lender, such Lender’s obligation
(if any) to make Revolving Loans pursuant to clause (a) of Section 2.1.1.


 


“Revolving
Loan Commitment Amount” means $50,000,000, as such amount may be reduced
from time to time pursuant to Section 2.2.


 


23

















 


“Revolving
Loan Commitment Termination Date” means the earliest of


 


(a)                                  the Stated
Maturity Date;


 


(b)                                 the date on
which the Revolving Loan Commitment Amount is terminated in full or reduced to
zero pursuant to the terms of this Agreement; and


 


(c)                                  the date on
which any Commitment Termination Event occurs.


 


Upon
the occurrence of any event described above, the Revolving Loan Commitments
shall terminate automatically and without any further action.


 


“Revolving
Loan Lender” is defined in clause (a) of Section 2.1.1.


 


“Revolving
Loan Percentage” means, relative to any Lender, the applicable percentage
relating to Revolving Loans set forth opposite its name on Schedule II
hereto under the Revolving Loan Commitment column or set forth in a Lender
Assignment Agreement under the Revolving Loan Commitment column, as such
percentage may be adjusted from time to time pursuant to Lender Assignment
Agreements executed by such Lender and its assignee Lender and delivered
pursuant to Section 10.11.  A
Lender shall not have any Revolving Loan Commitment if its percentage under the
Revolving Loan Commitment column is zero.


 


“Revolving
Loans” is defined in clause (a) of Section 2.1.1.


 


“Revolving
Note” means a promissory note of the Borrower payable to any Revolving Loan
Lender, in the form of Exhibit A-1 hereto (as such promissory note
may be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate Indebtedness of the Borrower to such Revolving Loan Lender
resulting from outstanding Revolving Loans, and also means all other promissory
notes accepted from time to time in substitution therefor or renewal thereof.


 


“S&P”
means Standard & Poor’s Rating Services, a division of The McGraw-Hill
Companies, Inc.


 


“SEC”
means the Securities and Exchange Commission.


 


“Second
Lien Notes” means the 13.25% Second Lien Notes due 2015 of Borrower.


 


“Secured
Parties” means, collectively, the Lenders (including the Swing Line
Lender), the Administrative Agent, each Person that is owed any obligations by
the Borrower or any of its Subsidiaries in respect of Cash Management
Obligations, and, in each case, each of their respective successors,
transferees and assigns.


 


“Security
Agreement” means the Pledge and Security Agreement dated as of the Original
Closing Date, a conformed copy of which is attached as Exhibit I hereto,
as the same may be amended, modified or otherwise changed in accordance with
the terms hereof and thereof.


 


24

















 


“Significant
Subsidiary” means each Subsidiary of the Borrower that (a) accounted
for at least 3% of the consolidated gross revenues of the Borrower and its
Subsidiaries or (b) has assets which represent at least 3% of the
consolidated gross assets of the Borrower and its Subsidiaries, in each case,
as of the last day of the most recently completed Fiscal Quarter with respect
to which, pursuant to clauses (a) and (b) of Section 7.1.1,
financial statements have been, or are required to have been, delivered by the
Borrower on or before the date as of which any such determination is made, as
reflected in such financial statements.


 


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


 


“SPC”
is defined in clause (i) of Section 10.11.


 


“Stated
Maturity Date” means with respect to all Revolving Loans and Swing Line
Loans, October 22, 2014.


 


“Subsidiary”
means, with respect to any Person, any other Person of which more than 50% of
the outstanding Voting Securities of such other Person (irrespective of whether
at the time Capital Securities of any other class or classes of such other
Person shall or might have voting power upon the occurrence of any contingency)
is at the time directly or indirectly owned or controlled by such Person, by
such Person and one or more other Subsidiaries of such Person, or by one or
more other Subsidiaries of such Person. 
Unless the context otherwise specifically requires, the term “Subsidiary”
shall be a reference to a Subsidiary of the Borrower.


 


“Subsidiary
Guarantor” means each Subsidiary that executes the Guaranty following the
Closing Date, pursuant to Section 7.1.8 or otherwise.


 


“Substitute
Lender” is defined in Section 4.10.


 


“Survey” shall mean a survey of any
Mortgaged Property (and all improvements thereon) which is (a) (i) prepared
by a surveyor or engineer licensed to perform surveys in the jurisdiction where
such Mortgaged Property is located, (ii) dated (or redated) not earlier
than three years


 


25
















 


prior
to the date of delivery thereof unless there shall have occurred to Borrower’s
knowledge within three years prior to such date of delivery (x) any
material exterior construction on the site of such Mortgaged Property or (y) any
easement, right of way or other interest in the Mortgaged Property has been
granted or become effective through operation of law or otherwise with respect
to such Mortgaged Property which, in either case, can be graphically depicted
on a survey, in which events, as applicable, such survey shall be dated (or
redated) after the completion of such construction or if such construction
shall not have been completed as of such date of delivery, or after the grant
or effectiveness of any such easement, right of way or other interest in the
Mortgaged Property, (iii) certified (which such certification may be
provided in the form of a separate stand-alone survey certification) by the
surveyor (in a manner reasonably acceptable to the Administrative Agent) to the
Administrative Agent, and the Title Company, (iv) complying in all
respects with the minimum detail requirements of the American Land Title
Association as such requirements are in effect on the date of preparation of
such survey and (v) sufficient for the Title Company to remove all
standard survey exceptions from the Title Policy (or commitment) relating to
such Mortgaged Property and issue the endorsements of the type required by Section 7.1.9(c),
(b) Express Maps prepared by First American Title Insurance Company or
(c) otherwise reasonably acceptable to the Administrative Agent.


 


“Swing
Line Lender” means, subject to the terms of this Agreement, Macquarie Bank
Limited.


 


“Swing
Line Loan Facility Amount” means, on any date, $5,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.


 


“Swing
Line Loans” is defined in clause (b) of Section 2.1.1.


 


“Swing
Line Note” means a promissory note of the Borrower payable to the Swing
Line Lender, in the form of Exhibit A-2 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to the Swing Line Lender
resulting from outstanding Swing Line Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.


 


“Synthetic
Lease” means, as applied to any Person, any lease (including leases that
may be terminated by the lessee at any time) of any property (whether real,
personal or mixed) (a) that is not a capital lease in accordance with GAAP
and (b) in respect of which the lessee retains or obtains ownership of the
property so leased for federal income tax purposes, other than any such lease
under which that Person is the lessor.


 


“Tax
Returns” means any return, report or similar statement required to be filed
with respect to any Tax (including any attached schedules) including any
informational return, claim for refund, amended return or declaration of
estimated Tax.


 


“Tax
Sharing Agreement” means the tax sharing agreement, dated as of the Closing
Date, among Parent and the Borrower, in form and substance reasonably
satisfactory to the Administrative


 


26

















 


Agent,
as amended, supplemented, amended and restated or otherwise modified from time
to time.


 


“Taxes”
means all income, stamp or other taxes, duties, levies, imposts, charges,
assessments, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all
interest, penalties or similar liabilities with respect thereto.


 


“Termination
Date” means the date on which all Obligations have been paid in full in
cash, all Cash Management Obligations have been paid in full and all
Commitments have terminated.


 


“Title Company” shall mean any
title insurance company as shall be retained by Borrower and reasonably
acceptable to the Administrative Agent.


 


“Title Policy” shall have the
meaning assigned to such term in clause (c) of Section 7.1.9.


 


“Total
Exposure Amount” means, on any date of determination (and without
duplication), the outstanding principal amount of all Loans and the unfunded
amount of the Commitments.


 


“Trademark
Security Agreement” means any Trademark Security Agreement executed and
delivered by any Obligor, in substantially in the form of Exhibit B
to any Security Agreement, as amended, supplemented, amended and restated or
otherwise modified from time to time.


 


“Transaction”
means the contemplated amendment and restatement of the Existing Credit Agreement,
including the entering into of this Agreement on the Closing Date.


 


“type”
means, relative to any Loan, the portion thereof, if any, being maintained as a
Base Rate Loan or a LIBO Rate Loan.


 


“UCC”
means the Uniform Commercial Code as in effect from time to time in the State
of New York; provided that if, with respect to any Filing Statement or
by reason of any provisions of law, the perfection or the effect of perfection
or non perfection of the security interests granted to the Administrative Agent
pursuant to the applicable Loan Document is governed by the Uniform Commercial
Code as in effect in a jurisdiction of the United States other than New York,
then “UCC” means the Uniform Commercial Code as in effect from time to time in
such other jurisdiction for purposes of the provisions of each Loan Document
and any Filing Statement relating to such perfection or effect of perfection or
non perfection.


 


“Unaudited
Quarterly Financial Statements” is defined in clause (a) of Section 7.1.1.


 


“United
States” or “U.S.” means the United States of America, its fifty
states and the District of Columbia.


 


27

















 


“U.S.
Subsidiary” means any Subsidiary that is incorporated or organized under
the laws of the United States or a state thereof or the District of Columbia.


 


“Voting
Securities” means, with respect to any Person, Capital Securities of any
class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.


 


“wholly
owned Subsidiary” means any Subsidiary all of the outstanding Capital
Securities of which (other than any director’s qualifying shares or investments
by foreign nationals mandated by applicable laws) are owned directly or
indirectly by the Borrower.


 


SECTION 1.2.                               Use of Defined
Terms.  Unless otherwise defined or
the context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each other Loan Document and
the Disclosure Schedule.


 


SECTION 1.3.                               Cross-References.  Unless otherwise specified, references in a
Loan Document to any Article or Section are references to such Article or
Section of such Loan Document, and references in any Article, Section or
definition to any clause are references to such clause of such Article, Section or
definition.


 


SECTION 1.4.                               Accounting and
Financial Determinations.


 


(a)                                  Unless otherwise specified,
all accounting terms used in each Loan Document shall be interpreted, and all
accounting determinations and computations thereunder (including under Section 7.2.4
and the definitions used in such calculations) shall be made, in accordance
with GAAP.  Unless otherwise expressly
provided, all financial covenants and defined financial terms shall be computed
on a consolidated basis for the Borrower and its Subsidiaries, in each case
without duplication.


 


(b)                                 As of any date of
determination, for purposes of determining the Leverage Ratio (and any
financial calculations required to be made or included within the Leverage
Ratio, or required for purposes of preparing any Compliance Certificate to be
delivered pursuant to clause (b) of the definition of “Permitted
Acquisition”), the calculation of the Leverage Ratio and other financial
calculations shall include or exclude, as the case may be, the effect of any
business, line of business or operating lease that has been acquired or
disposed of by the Borrower or any of its Subsidiaries as permitted by the
terms hereof (including through mergers or consolidations) as of such date of
determination, as determined by the Borrower on a pro forma basis, which determination may include one-time
adjustments or reductions in costs, if any, directly attributable to any such
disposition or acquisition, as the case may be, in each case (i) calculated
in accordance with Regulation S-X of the Securities Act of 1933, as amended,
for the period of four Fiscal Quarters ended on or immediately prior to the
date of determination of any Leverage Ratio and (ii) giving effect to any
such acquisition or disposition as if it had occurred on the first day of such
four Fiscal Quarter period.


 


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(c)                                  If the Borrower or the
Administrative Agent determines that a change in GAAP has altered the treatment
of certain financial data to its (or the Lenders’) detriment under this
Agreement, such party may, by written notice to the other party not later than
60 days after the end of the Fiscal Quarter during which such change in GAAP
becomes effective, request renegotiation of the financial covenants affected by
such change.  If the Borrower and the
Required Lenders have not agreed on revised covenants within thirty days after
delivery of such notice, then, for purposes of this Agreement, GAAP will have
the meaning set forth in clause (a) of the definition of “GAAP”.  Notwithstanding any other provision contained
herein, all terms of an accounting or financial nature used herein shall be
construed, and all computations of amounts and ratios referred to herein shall
be made, without giving effect to any election under Statement of Financial
Accounting Standards 159 (or any other Financial Accounting Standard having a
similar result or effect) to value any Indebtedness or other liabilities of Parent,
the Borrower or any Subsidiary at “fair value”, as defined therein.


 


ARTICLE II

COMMITMENTS, BORROWING AND ISSUANCE

PROCEDURES, NOTES AND LETTERS OF CREDIT


 


SECTION 2.1.                               Commitments.  On the terms and subject to the conditions of
this Agreement, the Lenders severally agree to make Credit Extensions as set
forth below.


 


SECTION 2.1.1. 
Revolving Loans and Swing Line Loans.  From time to time on any Business Day
occurring from and after the Closing Date until five Business Days prior to the
Revolving Loan Commitment Termination Date,


 


(a)                          each Lender
that has a Revolving Loan Commitment (referred to as a “Revolving Loan
Lender”) agrees that it will make loans (relative to such Lender, its “Revolving
Loans”) to the Borrower (i) equal to such Lender’s Revolving Loan
Percentage of the aggregate amount of each Borrowing of the Revolving Loans
requested by the Borrower to be made on such day and (ii) otherwise, in
accordance with clause (a) of Section 2.7; and


 


(b)                         the Swing Line
Lender, in reliance upon the agreements of the Revolving Loan Lenders set forth
in Section 2.3.2, but nonetheless in its sole and absolute
discretion, will make loans (its “Swing Line Loans”) to the Borrower
equal to the principal amount of the Swing Line Loan requested by the Borrower
to be made on such day.


 


On
the terms and subject to the conditions hereof, the Borrower may from time to
time borrow, prepay and reborrow Revolving Loans and Swing Line Loans.


 


No
Revolving Loan Lender shall be permitted or required to make any Revolving Loan
if, after giving effect thereto, the aggregate outstanding principal amount of
all Revolving Loans of such Revolving Loan Lender, together with such Lender’s
Revolving Loan Percentage of the aggregate amount of all Swing Line Loans,
would exceed such Lender’s Revolving Loan Percentage of the then existing
Revolving Loan Facility Amount. 
Furthermore, the Swing Line Lender


 


29

















 


shall
not be permitted or required to make Swing Line Loans if, after giving effect
thereto, (i) the aggregate outstanding principal amount of all Swing Line
Loans would exceed the then existing Swing Line Loan Commitment Amount or (ii) unless
otherwise agreed to by the Swing Line Lender, in its sole discretion, the sum
of all Swing Line Loans and Revolving Loans made by the Swing Line Lender would
exceed the Swing Line Lender’s Revolving Loan Percentage of the then existing
Revolving Loan Commitment Amount.


 


SECTION 2.2.                               Reductions in
Commitment Amounts.  The
Commitment Amounts are subject to reduction from time to time as set forth
below.


 


SECTION 2.2.1. 
Reductions.  The Borrower
may, from time to time on any Business Day occurring after Closing Date,
voluntarily reduce the amount of the Revolving Loan Commitment Amount or the
Swing Line Loan Facility Amount on the Business Day so specified by the
Borrower; provided that all such reductions shall require at least one
Business Day’s prior notice to the Administrative Agent (which notice may be
telephonic so long as such notice is confirmed in writing within 24 hours
thereafter) and be permanent, and any partial reduction of any Commitment
Amount shall be in a minimum amount of $5,000,000 and in an integral multiple
of $1,000,000.  Any optional or mandatory
reduction of the Revolving Loan Commitment Amount pursuant to the terms of this
Agreement which reduces the Revolving Loan Commitment Amount below the Swing
Line Loan Facility Amount shall result in an automatic and pro  rata
reduction of the Swing Line Loan Facility Amount (as directed by the Borrower
in a notice to the Administrative Agent delivered together with the notice of
such voluntary reduction in the Revolving Loan Commitment Amount) to an
aggregate amount not in excess of the Revolving Loan Commitment Amount, as so
reduced, without any further action on the part of the Swing Line Lender.


 


SECTION 2.2.2. 
[Reserved]


 


SECTION 2.2.3. 
Defaulting/Designated Lenders. 
Notwithstanding any provision of this Agreement to the contrary, if any
Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:


 


(a)                          Fees shall
cease to accrue on the unfunded portion of the Revolving Loan Commitment of
such Defaulting Lender pursuant to Section 3.3.


 


(b)                         The Commitments
and Revolving Loans of such Defaulting Lender shall not be included in
determining whether all Lenders or the Required Lenders have taken or may take
any action hereunder (including any consent to any amendment or waiver pursuant
to Section 10.1), provided that any waiver, amendment or
modification requiring the consent of all Lenders or each affected Lender which
affects such Defaulting Lender differently than other affected Lenders shall
require the consent of such Defaulting Lender.


 


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(c)                          If any Swing
Line Loan is outstanding at the time a Lender becomes a Defaulting Lender then:


 


(i)                                     all or any part
of such Swing Line Loan shall be reallocated among the non-Defaulting Lenders
in accordance with their respective applicable Revolving Loan Percentages but
only to the extent (x) the sum of all non-Defaulting Lenders’ Revolving
Loans plus such Defaulting Lender’s Swing Line Loans does not exceed the total
of all non-Defaulting Lenders’ Revolving Loan Commitments and (y) the
conditions set forth in Section 5.2 are satisfied at such time; and


 


(ii)                                  if the
reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one Business Day following
notice by the Administrative Agent prepay such Swing Line Loan.


 


(d)                         The Swing Line
Lender shall not be required to fund any Swing Line Loan unless it is satisfied
that the related exposure will be 100% covered by the Commitments of the
non-Defaulting Lenders, and participating interests in any such newly made
Swing Line Loan shall be allocated among non-Defaulting Lenders in a manner
consistent with Section 2.2.3(c)(i) (and Defaulting Lenders
shall not participate therein).


 


(e)                          In the event
and on the date that each of the Administrative Agent, the Borrower and the
Swing Line Lender agrees that a Defaulting Lender has adequately remedied all
matters that caused such Lender to be a Defaulting Lender, then the Swing Line
Loans of the Lenders shall be readjusted to reflect the inclusion of such
Lender’s Revolving Loan Commitments and on such date such Lender shall purchase
at par such of the Loans of the other Lenders (other than Swing Line Loans) as
the Administrative Agent shall determine may be necessary in order for such
Lender to hold such Loans in accordance with its applicable Revolving Loan
Percentage.


 


(f)                            All parties
hereto agree to any and all amendments to Schedule II hereto to reflect
any and all adjustments to Commitments, Commitment Amounts and Revolving Loan
Percentages referenced in this Section.


 


SECTION 2.3.                               Borrowing
Procedures.  Loans
(other than Swing Line Loans) shall be made by the Lenders in accordance with Section 2.3.1,
and Swing Line Loans shall be made by the Swing Line Lender in accordance with Section 2.3.2.


 


SECTION 2.3.1. 
Borrowing Procedure.  In
the case of Loans other than Swing Line Loans, by telephonic notice to the
Administrative Agent on or before 12:00 noon on a Business Day (followed
(within one Business Day) by the delivery of a confirming Borrowing Request,
the Borrower may from time to time irrevocably request, on the same Business
Day in the case of Base Rate Loans or on not less than three Business Days’
notice in the case of LIBO Rate Loans, and in either case not more than five
Business Days’ notice, that a Borrowing be made, in the case of LIBO Rate
Loans, in a minimum amount of $2,000,000 and an integral multiple of
$1,000,000, or in the case of Base Rate Loans, in a minimum amount of
$1,000,000 and an


 


31

















 


integral
multiple of $500,000 or, in either case, in the unused amount of the applicable
Commitment.  On the terms and subject to
the conditions of this Agreement, each Borrowing shall be comprised of the type
of Loans, and shall be made on the Business Day, specified in such Borrowing
Request.  In the case of Loans other than
Swing Line Loans, on or before 3:00 p.m. on such Business Day each Lender
that has a Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender’s
Percentage of the requested Borrowing. 
Such deposit will be made to an account which the Administrative Agent
shall specify from time to time by notice to the Lenders.  To the extent funds are received from the
Lenders, the Administrative Agent shall make such funds available to the
Borrower by wire transfer to the accounts the Borrower shall have specified in
its Borrowing Request.  No Lender’s
obligation to make any Loan shall be affected by any other Lender’s failure to
make any Loan.


 


SECTION 2.3.2. 
Swing Line Loans; Participations, etc.  Subject to the terms and conditions set forth
herein, the Swing Line Lender may, in reliance upon the agreements of the
Revolving Loan Lenders set forth in this Section 2.3.2, but
nonetheless in its sole and absolute discretion, make Swing Line Loans and the
Borrower may request Swing Line Loans as follows:


 


(a)                          By telephonic
notice to the Swing Line Lender on or before 12:00 noon on a Business Day
(followed (within one Business Day) by the delivery of a confirming Borrowing
Request), the Borrower may from time to time irrevocably request that Swing
Line Loans be made by the Swing Line Lender in an aggregate minimum principal
amount of $250,000 and an integral multiple of $50,000.  All Swing Line Loans shall be made as Base
Rate Loans and shall not be entitled to be converted into LIBO Rate Loans.  The proceeds of each Swing Line Loan shall be
made available by the Swing Line Lender to the Borrower by wire transfer to the
account the Borrower shall have specified in its notice therefor by the close
of business on the Business Day telephonic notice is received by the Swing Line
Lender.  Upon the making of each Swing
Line Loan, and without further action on the part of the Swing Line Lender or
any other Person, each Revolving Loan Lender (other than the Swing Line Lender)
shall be deemed to have irrevocably purchased, to the extent of its Revolving
Loan Percentage, a participation interest in such Swing Line Loan, and such
Revolving Loan Lender shall, to the extent of its Revolving Loan Percentage, be
responsible for reimbursing within one Business Day of receiving notice thereof
the Swing Line Lender for Swing Line Loans which have not been reimbursed by
the Borrower in accordance with the terms of this Agreement.


 


(b)                         If (x) any
Swing Line Loan shall be outstanding for more than four Business Days, (y) any
Swing Line Loan is or will be outstanding on a date when the Borrower requests
that a Revolving Loan be made or (z) any Default shall occur and be
continuing, then each Revolving Loan Lender (other than the Swing Line Lender)
irrevocably agrees that it will, at the request of the Swing Line Lender, make
a Revolving Loan (which shall initially be funded as a Base Rate Loan) in an
amount equal to such Lender’s Revolving Loan Percentage of the aggregate
principal amount of all such Swing Line Loans then outstanding (such
outstanding Swing Line Loans hereinafter referred to as the “Refunded Swing
Line Loans”).  On or before 11:00 a.m.
on the first Business Day


 


32

















 


following receipt by each
Revolving Loan Lender of a request to make Revolving Loans as provided in the
preceding sentence, each Revolving Loan Lender shall deposit in an account
specified by the Swing Line Lender the amount so requested in same day funds
and such funds shall be applied by the Swing Line Lender to repay the Refunded
Swing Line Loans.  At the time the
Revolving Loan Lenders make the above referenced Revolving Loans, the Swing
Line Lender shall be deemed to have made, in consideration of the making of the
Refunded Swing Line Loans, Revolving Loans in an amount equal to the Swing Line
Lender’s Revolving Loan Percentage of the aggregate principal amount of the
Refunded Swing Line Loans.  Upon the
making (or deemed making, in the case of the Swing Line Lender) of any
Revolving Loans pursuant to this clause, the amount so funded shall become an
outstanding Revolving Loan and shall no longer be owed as a Swing Line
Loan.  All interest payable with respect
to any Revolving Loans made (or deemed made, in the case of the Swing Line
Lender) pursuant to this clause shall be appropriately adjusted to reflect the
period of time during which the Swing Line Lender had outstanding Swing Line
Loans in respect of which such Revolving Loans were made.  Each Revolving Loan Lender’s obligation to
make the Revolving Loans referred to in this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the Swing Line Lender, any Obligor or any Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default; (iii) any
adverse change in the condition (financial or otherwise) of any Obligor; (iv) the
acceleration or maturity of any Obligations or the termination of any
Commitment after the making of any Swing Line Loan; (v) any breach of any
Loan Document by any Person; or (vi) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.


 


SECTION 2.4.                               Continuation
and Conversion Elections.  By
telephonic notice to the Administrative Agent on or before 12:00 noon on a
Business Day (followed (within one Business Day) by the delivery of a
confirming Continuation/Conversion Notice), the Borrower may from time to time
irrevocably elect, on not less than one Business Day’s notice in the case of
Base Rate Loans, or three Business Days’ notice in the case of LIBO Rate Loans,
and in either case not more than five Business Days’ notice, that all, or any
portion in an aggregate minimum amount of $2,000,000 and an integral multiple
of $500,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans
or be, in the case of LIBO Rate Loans, converted into Base Rate Loans or
continued as LIBO Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least
three Business Days (but not more than five Business Days) before the last day
of the then current Interest Period with respect thereto, such LIBO Rate Loan
shall, on such last day, automatically convert to a Base Rate Loan); provided
that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders that have made such Loans, and (y) no
portion of the outstanding principal amount of any Loans may be continued as,
or be converted into, LIBO Rate Loans when any Default has occurred and is
continuing.


 


SECTION 2.5.                               Funding.  Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or 


 


33

















 


Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided
that such LIBO Rate Loan shall nonetheless be deemed to have been made and to
be held by such Lender, and the obligation of the Borrower to repay such LIBO
Rate Loan shall nevertheless be to such Lender for the account of such foreign
branch, Affiliate or international banking facility.  In addition, the Borrower hereby consents and
agrees that, for purposes of any determination to be made for purposes of Sections
4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed
that each Lender elected to fund all LIBO Rate Loans by purchasing Dollar
deposits in its Lending Office’s interbank eurodollar market.


 


SECTION 2.6.                               Reallocation of
Revolving Loans.  With respect
to any Revolving Lender, on any date on which


 


(a)                          the aggregate
outstanding principal amount of all Revolving Loans of such Revolving Loan
Lender, together with such Lender’s Revolving Loan Percentage of the aggregate
amount of all Swing Line Loans, is less than such Lender’s Revolving Loan
Percentage of the then Revolving Loan Commitment Amount, such Revolving Loan
Lender shall make a Revolving Loan to the Borrower in an amount of such
deficiency; provided that the proceeds of such Revolving Loans shall not
be funded to the Borrower, but instead shall be applied by the Administrative
Agent to make mandatory repayments required under clause (b) below;
and


 


(b)                         the aggregate
outstanding principal amount of all Revolving Loans of such Revolving Loan Lender,
together with such Lender’s Revolving Loan Percentage of the aggregate amount
of all Swing Line Loans, exceeds such Lender’s Revolving Loan Percentage of the
then existing Revolving Loan Commitment Amount, the Borrower shall make a
mandatory repayment of such Revolving Loan Lender’s Revolving Loans in an
amount equal to such excess (and if there is more than one Lender that this clause
(b) applies to, such payments shall be made to all such Lenders on a pro
rata basis).


 


SECTION 2.7.                               Register; Notes.


 


(a)                                  The Borrower hereby
designates the Administrative Agent to serve as the Borrower’s agent, solely
for the purpose of this clause, to maintain a register (the “Register”)
on which the Administrative Agent will record each Lender’s Commitment, the
Loans made by each Lender (and related interest amount) and each repayment in
respect of the principal amount of the Loans, annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment Agreement
delivered to the Administrative Agent pursuant to Section 10.11.  Failure to make any recordation, or any error
in such recordation, shall not affect any Obligor’s Obligations.  The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the
Administrative Agent and the Lenders shall treat each Person in whose name a
Loan is registered as the owner thereof for the purposes of all Loan Documents,
notwithstanding notice or any provision herein to the contrary.  Any assignment or transfer of a Commitment or
the Loans made pursuant hereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment Agreement that has
been executed by the requisite parties pursuant to Section 10.11.  No assignment or transfer of a Lender’s
Commitment or 


 


34

















 


Loans shall be effective unless such
assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.


 


(b)                                 The Borrower agrees that,
upon the request of any Lender, the Borrower will execute and deliver to such
Lender a Note evidencing the Loans made by, and payable to such Lender in a
maximum principal amount equal to such Lender’s Revolving Loan Percentage of
the original applicable Commitment Amount. 
The Borrower hereby irrevocably authorizes each Lender to make (or cause
to be made) appropriate notations on the grid attached to such Lender’s Note
(or on any continuation of such grid), which notations, if made, shall
evidence, inter alia, the date of, the
outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. 
Such notations shall, to the extent not inconsistent with notations made
by the Administrative Agent in the Register, be conclusive and binding on each
Obligor absent manifest error; provided that the failure of any Lender
to make any such notations or any error in such notations shall not limit or
otherwise affect any Obligations of any Obligor.


 


ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES


 


SECTION 3.1.                               Repayments and
Prepayments; Application.  The
Borrower agrees that the Loans shall be repaid and prepaid pursuant to the
following terms.


 


SECTION 3.1.1. 
Repayments and Prepayments. 
The Borrower shall repay in full the unpaid principal amount of each
Loan upon the applicable Stated Maturity Date therefor.  Prior thereto, payments and prepayments of
the Loans shall or may be made as set forth below.


 


(a)                          From time to
time on any Business Day, the Borrower may make a voluntary prepayment, in
whole or in part, of the outstanding principal amount of any


 


(i)                                     Loans (other
than Swing Line Loans); provided that (A) any such prepayment of
Revolving Loans shall be made pro  rata among the Revolving Loans
of the same type and, if applicable, having the same Interest Period of all
Lenders that have made such Revolving Loans; (B) all such voluntary
prepayments shall require, in the case of Base Rate Loans at least one Business
Day’s prior notice (such notice to be delivered before noon on such day), and
in the case of LIBO Rate Loans at least three Business Day’s prior notice (such
notice to be delivered before noon on such day), and in either case not more
than five Business Days’ prior irrevocable notice to the Administrative Agent
(which notice may be telephonic so long as such notice is confirmed in writing
within 24 hours thereafter and such notice to be delivered before noon on such
day); and (C) all such voluntary partial prepayments shall be, in the case
of LIBO Rate Loans, in an aggregate minimum amount of $2,000,000 and an
integral multiple of $1,000,000 and, in the case of Base Rate Loans, in an
aggregate minimum amount of $1,000,000 and an integral multiple of $500,000;
and


 


35
















 


(ii)                                  Swing Line
Loans; provided that (A) all such voluntary prepayments shall require
prior telephonic notice to the Swing Line Lender on or before 1:00 p.m. on the
day of such prepayment (such notice to be confirmed in writing within 24 hours
thereafter); and (B) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $250,000 and an integral multiple of $50,000.


 


Each notice of prepayment sent pursuant to this clause shall specify
the prepayment date and the principal amount of each Borrowing (or portion
thereof) to be prepaid.  Each such notice
shall be irrevocable and shall commit the Borrower to prepay such Borrowing by
the amount stated therein on the date stated therein; provided that a
notice of prepayment may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. All
prepayments under this clause (other than prepayments of Revolving Loans that
are Base Rate Loans that are not made in connection with the termination or
permanent reduction of the Revolving Loan Commitment) shall be accompanied by
accrued and unpaid interest on the principal amount to be prepaid to but
excluding the date of payment.


 


(b)                         (i)  On each date when the aggregate outstanding
principal amount of all Revolving Loans and Swing Line Loans exceeds the
Revolving Loan Commitment Amount (as it may be reduced from time to time
pursuant to this Agreement), the Borrower shall make a mandatory prepayment of
Revolving Loans or Swing Line Loans (or both).


 


(ii)                          The Borrower
shall also make mandatory repayments in accordance with clause (b) of Section
2.6.


 


(c)                          Concurrently
with the receipt by the Borrower or any of its Subsidiaries of any Net Debt
Proceeds, the Borrower shall (or shall cause such Subsidiary to) make a
mandatory prepayment of the Loans in an amount equal to 100% of such Net Debt
Proceeds, to be applied as set forth in Section 3.1.2.


 


(d)                         In the event
the Borrower or any of its Subsidiaries receives any Net Disposition Proceeds
or Net Casualty Proceeds, the Borrower shall (subject to the proviso hereto),
within 5 Business Days of such receipt, deliver to the Administrative Agent a
calculation of the amount of such Net Disposition Proceeds or Net Casualty
Proceeds, and, to the extent the aggregate amount of such proceeds received by
the Borrower and their respective Subsidiaries in any Fiscal Year exceeds
$1,000,000, the Borrower shall (or shall cause such Subsidiary to) make a
mandatory prepayment of the Loans in an amount equal to 100% of such excess; provided
that, upon written notice by the Borrower to the Administrative Agent not more
than 5 Business Days following receipt of any Net Disposition Proceeds or Net
Casualty Proceeds, such proceeds may be retained by the Borrower and its
Subsidiaries (and be excluded from the prepayment requirements of this clause)
if


 


36

















 


(A) the Borrower informs the
Administrative Agent in such notice of its good faith intention to apply (or
cause one or more of its Subsidiaries to apply) such Net Disposition Proceeds
or Net Casualty Proceeds to the acquisition of other assets or properties in
the U.S. consistent with the businesses permitted to be conducted pursuant to Section
7.2.1 (including by way of merger or Investment), and (B) within 365 days
following the receipt of such Net Disposition Proceeds or Net Casualty
Proceeds, such proceeds are applied or committed to such acquisition.  The amount of such Net Disposition Proceeds
or Net Casualty Proceeds unused or uncommitted after such 365 day period shall
be applied to prepay the Loans as set forth in Section 3.1.2; provided
that in the event the Borrower or such Subsidiary has not applied such
committed but unused Net Disposition Proceeds or Net Casualty Proceeds for such
acquisition within eighteen months following the receipt of such Net
Disposition Proceeds or Net Casualty Proceeds, all of such committed but unused
Net Disposition Proceeds or Net Casualty Proceeds shall be applied to prepay
the Loans as set forth in Section 3.1.2 at the end of such
eighteen-month period.  At any time after
receipt of any such Net Disposition Proceeds or Net Casualty Proceeds in excess
of $2,500,000 during any Fiscal Year (individually or in the aggregate) but
prior to the application thereof to a mandatory prepayment or the acquisition
of other assets or properties as described above, the Borrower shall deposit
(or cause to be deposited) an amount equal to such excess into a cash
collateral account (the “Proceeds Account”) maintained with (and subject
to documentation reasonably satisfactory to) the Administrative Agent for the benefit
of the Secured Parties (and over which the Administrative Agent shall have a
first priority perfected Lien that benefits from the priorities established for
Priority Payment Lien Obligations under the First Lien Intercreditor Agreement)
pending such application as a prepayment or to be released as requested by the
Borrower in respect of such acquisition. 
Amounts deposited in such cash collateral account shall be invested in
Cash Equivalent Investments, as directed by the Borrower.


 


(e)                          Immediately upon
any acceleration of the Stated Maturity Date of any Loans pursuant to Sections
8.2 or 8.3, the Borrower shall repay all the Loans, unless, pursuant
to Section 8.3, only a portion of all the Loans is so accelerated (in
which case the portion so accelerated shall be so repaid).


 


Each
prepayment of any Loans made pursuant to this Section shall be without premium
or penalty, except as may be required by Section 4.4.  In lieu of making any mandatory prepayment
pursuant to clauses (c), (d), or (e) of this Section in
respect of any LIBO Rate Loan other than on the last day of the Interest Period
therefor, so long as no Default shall have occurred and be continuing, the
Borrower at its option may deposit with the Administrative Agent an amount
equal to the amount of the LIBO Rate Loan to be prepaid and such LIBO Rate Loan
shall be repaid on the last day of the Interest Period therefor in the required
amount.  Such deposit shall be held by
the Administrative Agent in a corporate time deposit account established on
terms reasonably satisfactory to the Administrative Agent (including that the
Administrative Agent has been granted a Lien over such deposit that benefits
from the priorities established for Priority Payment Lien Obligations under the
First Lien Intercreditor Agreement), earning interest at the then-customary
rate for accounts of such type.  Such
deposit shall cash collateralize the applicable Obligations; provided
that (A) the Borrower may at any time direct that such deposit be 


 


37

















 


applied
to make the applicable payment required pursuant to this Section, subject to
the provisions of Section 4.4 and (B) upon the occurrence of an Event of
Default, such amounts on deposit may be applied by the Administrative Agent to
prepay the Loans.


 


SECTION 3.1.2. 
Application.  Amounts
prepaid pursuant to Section 3.1.1 shall be applied as set forth in this
Section.


 


(a)                          Subject to clause
(b) below, each prepayment or repayment of the principal of the Loans shall
be applied, to the extent of such prepayment or repayment, first, to the
principal amount thereof being maintained as Base Rate Loans, and second,
subject to the terms of the last paragraph of Section 3.1.1 and Section
4.4, to the principal amount thereof being maintained as LIBO Rate Loans.


 


(b)                         Each prepayment
of the Loans made pursuant to clauses (c), (d) or (e) of Section
3.1.1 shall be applied to a reduction of the Revolving Loan Commitment
Amount in accordance with Section 2.2.1 and clause (b) of Section
2.6 shall simultaneously be complied with.


 


SECTION 3.2.                               Interest
Provisions.  Interest on
the outstanding principal amount of the Loans shall accrue and be payable in
accordance with the terms set forth below.


 


SECTION 3.2.1. 
Rates.  Pursuant to an
appropriately delivered Borrowing Request or Continuation/Conversion Notice,
the Borrower may elect that the Loans comprising a Borrowing accrue interest at
a rate per annum:


 


(a)                          on that portion
maintained from time to time as a Base Rate Loan, equal to the sum of the
Alternate Base Rate from time to time in effect plus the Applicable
Margin; provided that all Swing Line Loans shall always accrue interest
at a rate per annum equal to the Alternate Base Rate from time to time in
effect plus the then effective Applicable Margin for Revolving Loans
maintained as Base Rate Loans; and


 


(b)                         on that portion
maintained as a LIBO Rate Loan, during each Interest Period applicable thereto,
equal to the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus
the Applicable Margin,


 


but
in no event in excess of the maximum nonusurious interest rate permitted by
applicable law.  All LIBO Rate Loans
shall bear interest from and including the first day of the applicable Interest
Period to (but not including) the last day of such Interest Period at the
interest rate determined as applicable to such LIBO Rate Loan.  Interest on Base Rate Loans shall be
calculated from and including the first day of the Borrowing of such Base Rate
Loan to (but not including) the date interest is required to be paid on such
Base Rate Loan pursuant to Section 3.2.3.


 


SECTION 3.2.2. 
Post-Maturity Rates.  After
the date any principal amount of any Loan is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, and such



 


38

















 


Obligation
shall not have been paid, the Borrower shall pay, but only to the extent
permitted by law, interest (after as well as before judgment) on such amounts
at a rate per annum equal to (a) in the case of overdue principal on any Loan,
the rate of interest that otherwise would be applicable to such Loan plus
2% per annum; and (b) in the case of overdue interest, fees and other monetary
Obligations, the Alternate Base Rate plus 2% per annum, but in no event
in excess of the maximum nonusurious interest rate permitted by applicable law.


 


SECTION 3.2.3. 
Payment Dates.  Interest
accrued on each Loan shall be payable, without duplication:


 


(a)                          on the Stated
Maturity Date;


 


(b)                         on the date of
any payment or prepayment, in whole or in part, of principal outstanding on
such Loan (other than Swing Line Loans and Base Rate Loans) on the principal
amount so paid or prepaid;


 


(c)                          with respect to
Base Rate Loans (including Swing Line Loans), on each Quarterly Payment Date
occurring after the Closing Date;


 


(d)                         with respect to
LIBO Rate Loans, on the last day of each applicable Interest Period (and, if
such Interest Period shall exceed three months, on each Quarterly Payment Date
occurring after the first day of such Interest Period); and


 


(e)                          on that portion
of any Loans the Stated Maturity Date of which is accelerated pursuant to Sections
8.2 or 8.3, immediately upon such acceleration.


 


Interest
accrued on Loans or other monetary Obligations after the date such amount is
due and payable (whether on the Stated Maturity Date, upon acceleration or
otherwise) shall be payable upon demand.


 


SECTION 3.3.                               Fees.  The Borrower agrees to pay the fees in the
amounts and on the dates set forth in each Fee Letter.  All such fees shall be non refundable.


 


ARTICLE IV

CERTAIN LIBO RATE AND OTHER PROVISIONS


 


SECTION 4.1.                               LIBO Rate
Lending Unlawful.  If any
Lender shall determine (which determination shall, upon notice thereof to the
Borrower and the Administrative Agent, be conclusive and binding on the
Borrower) that the introduction of or any change in or in the interpretation of
any law makes it unlawful, or any Governmental Authority asserts that it is
unlawful, for such Lender to make or continue any Loan as, or to convert any
Loan into, a LIBO Rate Loan, the obligations of such Lender to make, continue
or convert any such LIBO Rate Loan shall, upon such determination, forthwith be
suspended until such Lender shall notify the Administrative Agent that the
circumstances causing such suspension no longer exist, and all outstanding LIBO
Rate Loans payable to such Lender shall automatically convert into Base Rate 


 


39

















 


Loans at the end of the then current Interest
Periods with respect thereto or sooner, if required by such law or assertion.


 


SECTION 4.2.                               Deposits
Unavailable.  If the
Administrative Agent shall have determined that


 


(a)                          Dollar deposits
in the relevant amount and for the relevant Interest Period are not available
to it in its relevant market;


 


(b)                         by reason of
circumstances affecting its relevant market, adequate means do not exist for
ascertaining the interest rate applicable hereunder to LIBO Rate Loans; or


 


(c)                          the LIBO Rate
for any requested Interest Period with respect to a proposed LIBO Rate Loan or
in connection with a LIBO Rate Loan does not adequately and fairly reflect the
cost to such Lenders of funding such Loan;


 


then,
upon notice from the Administrative Agent to the Borrower and the Lenders, the
obligations of all Lenders under Sections 2.3 and 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.


 


SECTION 4.3.                               Increased LIBO
Rate Loan Costs, etc.  The
Borrower agrees to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum receivable by such Person
in respect of, such Person’s Commitments and the making of Credit Extensions
hereunder (including the making, continuing or maintaining (or of its
obligation to make or continue) any Loans as, or of converting (or of its
obligation to convert) any Loans into, LIBO Rate Loans) that arise in
connection with any change in, or the introduction, adoption, effectiveness,
change in interpretation, reinterpretation or phase in after the Closing Date
of, any law or regulation, directive, guideline, decision or request (whether
or not having the force of law) of any Governmental Authority, except for such
changes with respect to increased capital costs and Taxes which are governed by
Sections 4.5 and 4.6, respectively.  Each affected Lender shall promptly notify
the Administrative Agent and the Borrower in writing of the occurrence of any
such event, stating the reasons therefor and the additional amount required fully
to compensate such Person for such increased cost or reduced amount.  Such additional amounts shall be payable by
the Borrower directly to such Lender within five days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrower. 
Notwithstanding the foregoing, no Lender shall be entitled to
compensation under this Section for any costs incurred or reductions suffered
with respect to any date that it has such costs unless it shall have notified
the Borrower that it will demand compensation for such costs not more than 180
days after the date on which it shall have become aware of such costs.


 


SECTION 4.4.                               Funding Losses.  In the event any Lender shall incur any loss
or expense (including any loss or expense incurred by reason of the liquidation
or reemployment of 


 


40

















 


deposits or other funds acquired by such Lender to
make or continue any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of


 


(a)                          any conversion
or repayment or prepayment of the principal amount of any LIBO Rate Loan on a
date other than the scheduled last day of the Interest Period applicable
thereto, whether pursuant to Article III or otherwise;


 


(b)                         any Loans not
being made as LIBO Rate Loans in accordance with the Borrowing Request
therefor; or


 


(c)                          any Loans not
being continued as, or converted into, LIBO Rate Loans in accordance with the
Continuation/Conversion Notice therefor;


 


then,
upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender such amount as will (in the reasonable
determination of such Lender) reimburse such Lender for such loss or
expense.  Such written notice shall, in
the absence of manifest error, be conclusive and binding on the Borrower.


 


SECTION 4.5.                               Increased
Capital Costs.  If, after
the Closing Date, any change in, or the introduction, adoption, effectiveness,
change in interpretation, reinterpretation or phase in of, any law or
regulation, directive, guideline, decision or request (whether or not having
the force of law) of any Governmental Authority affects or would increase the
amount of capital required or expected to be maintained by any Credit Party or
any Person controlling such Credit Party, and such Credit Party determines (in
good faith but in its sole and absolute discretion) that the rate of return on
its or such controlling Person’s capital as a consequence of the Commitments or
the Credit Extensions made by such Credit Party is reduced to a level below
that which such Credit Party or such controlling Person could have achieved but
for the occurrence of any such circumstance, then upon prompt notice from time
to time by such Credit Party to the Borrower, the Borrower shall within five
days following receipt of such notice pay directly to such Credit Party
additional amounts sufficient to compensate such Credit Party or such
controlling Person for such reduction in rate of return.  A statement of such Credit Party as to any
such additional amount or amounts shall, in the absence of manifest error, be
conclusive and binding on the Borrower. 
In determining such amount, such Credit Party may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.  Notwithstanding the
foregoing, no Credit Party shall be entitled to compensation under this Section
for any additional amounts with respect to any date unless it shall have
notified the Borrower that it will demand compensation hereunder not more than
180 days after the date on which it shall have become aware of such increased
costs.


 


41

















 


SECTION 4.6.                               Taxes.  The Obligors covenant and agree as follows
with respect to Taxes.


 


(a)                          Any and all
payments by any Obligor under any Loan Document shall be made free and clear
of, and without deduction or withholding for or on account of, any Taxes,
unless required by law (as determined by the applicable withholding
agent).  In the event that any
Indemnified Taxes or Other Taxes are imposed and required to be deducted or withheld
from any payment under any Loan Document, then:


 


(i)                                     the amount of
such payment shall be increased by the applicable Obligor as may be necessary
so that such payment is made, after withholding or deduction for or on account
of such Taxes (including any such Taxes attributable to the payments under this
Section 4.6), in an amount that is not less than the amount provided for
in such Loan Document; and


 


(ii)                                  the applicable
withholding agent shall withhold the full amount of such Taxes from such
payment (including any such Taxes attributable to the payments under this Section
4.6) and shall pay such amount to the Governmental Authority imposing such
Taxes in accordance with applicable law.


 


(b)                         In addition,
the Borrower shall pay all Other Taxes imposed (without duplication if any
other Taxes are paid under Section 4.6(a)) to the relevant Governmental
Authority imposing such Other Taxes in accordance with applicable law.


 


(c)                          As promptly as
practicable after the payment of Indemnified Taxes or Other Taxes by an
Obligor, and in any event within 45 days of any such payment being made, the
relevant Obligor shall furnish to the Administrative Agent a copy of an
official receipt (or a certified copy thereof) evidencing the payment of such
Indemnified Taxes or Other Taxes.  The
Administrative Agent shall make copies thereof available to any relevant Credit
Party upon request therefor.


 


(d)                         Subject to clause
(f) below, the Borrower shall indemnify and hold harmless each Credit Party
for any Indemnified Taxes and Other Taxes (including any such Taxes attributable
to the payments under this Section 4.6), levied, imposed or assessed on
(and whether or not paid directly by) such Credit Party whether or not such
Indemnified Taxes or Other Taxes are correctly or legally asserted by the
relevant Governmental Authority. Promptly upon having knowledge that any such
Indemnified Taxes or Other Taxes have been levied, imposed or assessed, and
promptly upon notice thereof by any Credit Party (which notice shall, in the
absence of manifest error, be conclusive and binding on the Borrower), the
Borrower shall pay such Indemnified Taxes or Other Taxes directly to the
relevant Governmental Authority, provided that the Borrower shall not be
obligated to so indemnify each Credit Party in respect of interest or penalties
attributable to any Indemnified Taxes or Other Taxes:  (i) to the extent that such interest or
penalties resulted solely from the failure of the Administrative Agent or such
other Credit Party as applicable, to notify the Borrower of the imposition of
such Indemnified Taxes or Other Taxes


 


42

















 


within 120 days after the
Administrative Agent or such other Credit Party (as the case may be) actually
received written notice of such imposition from the applicable taxing authority
or (ii) such interest or penalties resulted solely from the gross negligence or
willful misconduct of the Administrative Agent or such Credit Party.  With respect to indemnification for
Indemnified Taxes and Other Taxes actually paid by any Credit Party or the
indemnification provided in the immediately preceding sentence, such
indemnification shall be made within 30 days after the date such Credit Party
makes written demand therefor.  The
Borrower acknowledges that any payment made to any Credit Party or to any
Governmental Authority in respect of the indemnification obligations of the
Borrower provided in this clause shall constitute a payment in respect of which
the provisions of clause (a) and this clause shall apply.


 


(e)                          (i) Any Credit
Party (which, for purposes of this clause (e) of Section 4.6,
shall exclude the Administrative Agent in its capacity as the Administrative
Agent) that is entitled to an exemption from or reduction of withholding Tax
(including backup withholding Tax) under the law of the jurisdiction in which
the Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to any payment under this Agreement shall deliver to the Borrower
and the Administrative Agent at any time or times reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed
documentation as may be prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent to permit such payments to be made
without such withholding Tax or at a reduced rate; provided, that no Credit Party shall have any obligation
under this paragraph (e) with
respect to any withholding Tax imposed by any jurisdiction other than the U.S.
federal government if in the reasonable judgment of such Credit Party such
compliance would subject such Credit Party to any material unreimbursed cost or
expense or would otherwise be disadvantageous to such Credit Party in any
material respect.


 


(ii) Without limiting the generality of the foregoing, any Non-U.S.
Credit Party shall, to the extent it is legally eligible to do so, 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 Non-U.S.
Credit Party becomes a Credit Party under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but
only if such Non-U.S. Credit Party is legally eligible to do so), whichever of
the following is applicable:


 


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


 


(II)                                duly completed copies of
Internal Revenue Service Form W-8ECI (or any successor forms),


 


(III)                            in the case of a Non-U.S.
Credit Party claiming the benefits of the exemption for portfolio interest
under Section 881(c) of the Code, (x) a certificate, 


 


43

















 


in
substantially the form of Exhibit F-1, or any other form approved by the
Administrative Agent, to the effect that such Non-U.S. Credit Party is not (A)
a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10
percent shareholder” of the applicable 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 that no payments in connection with
the Loan Documents are effectively connected with such Non-U.S. Credit Party’s
conduct of a U.S. trade or business and (y) duly completed copies of Internal
Revenue Service Form W-8BEN (or any successor forms),


 


(IV)                            to the extent a Non-U.S.
Credit Party is not the beneficial owner (for example, where the Non-U.S.
Credit Party is a partnership, or a participating Lender granting a typical
participation), an Internal Revenue Service Form W-8IMY, accompanied by a Form
W-8ECI, W-8BEN, a certificate in substantially the form of Exhibit F-2, Exhibit
F-3 or Exhibit F-4, as applicable, Form W-9, and/or other certification
documents from each beneficial owner, as applicable; provided that, if the Non-U.S. Credit Party is a partnership
(and not a participating Lender) and one or more partners of such Non-U.S.
Credit Party are claiming the portfolio interest exemption, such Non-U.S.
Credit Party shall provide a certificate, in substantially the form of Exhibit
F-3, on behalf of such beneficial owner(s) (in
lieu of requiring each beneficial owner to provide such certificate); and


 


(V)                                any other form prescribed by
applicable laws as a basis for claiming exemption from or a reduction in U.S.
federal withholding tax duly completed together with such supplementary
documentation as may be prescribed by applicable requirements of law to permit the
applicable Borrower and the Administrative Agent to determine the withholding
or deduction required to be made.


 


(iii) Each Non-U.S. Credit Party shall, from time to time after the
initial delivery by such Non-U.S. Credit Party of the forms described above,
whenever a lapse in time or change in such Lender’s circumstances renders such
forms, certificates or other evidence so delivered obsolete or inaccurate,
promptly (1) deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) renewals, amendments
or additional or successor forms, properly completed and duly executed by such
Non-U.S. Credit Party, together with any other certificate or statement of
exemption required in order to confirm or establish such Non-U.S. Credit Party’s
status or that such Non-U.S. Credit Party is entitled to an exemption from or
reduction in any applicable withholding tax or (2) notify Administrative Agent
and the Borrower of its inability to deliver any such forms, certificates or
other evidence.


 


(iv) Any Credit Party that is a “United States person” (within the
meaning of Section 7701(a)(30) of the Code) shall deliver to the Borrower and
the Administrative Agent on or prior to the date on which such Credit Party
becomes a Credit Party under 


 


44

















 


this
Agreement (and from time to time thereafter as prescribed by applicable law or
upon the request of the Borrower or the Administrative Agent), duly executed
and properly completed copies of Internal Revenue Service Form W-9 certifying
that it is not subject to U.S. federal backup withholding.


 


(f)                            If and to the
extent that any Credit Party determines (in good faith) that it has actually
realized a refund of a Tax in respect to which an Obligor paid any additional
amounts to such Credit Party pursuant to clause (a)(i) or clause (d)
above, such Credit Party shall, to the extent such Credit Party determines in
good faith that such Credit Party may do so without prejudice to the retention
of such refund and without any other adverse Tax consequences to such Credit
Party, pay to the Obligor an amount it determines to be the proportion of the
refund as will leave it, after such payment, in no better or worse financial
position than had the Tax giving rise to the additional amounts not been
imposed and had the additional amounts giving rise to such refund never been
paid in the first place.  If any refund
resulting in a payment by a Credit Party to the Obligor under this clause is
ultimately disallowed (in whole or in part, and including, as a result of a
settlement with an applicable Governmental Authority), the Obligor shall,
within ten days after receiving written notice from such Credit Party, return
to such Credit Party the portion of the payment previously made to the Obligor
by such Credit Party (plus interest for the relevant period(s) at the
applicable rate(s)) as such Credit Party shall determine (in such Credit Party’s
sole discretion exercised in good faith) to be due and owning in accordance
with this clause. This Section shall not be construed to require any Credit
Party to make available its Tax Returns (or any other information relating to
its Taxes which it deems confidential) to an Obligor or any other person.


 


SECTION 4.7.                               Payments,
Computations, etc.


 


(a)                                  Unless
otherwise expressly provided in a Loan Document, all payments by the Borrower
pursuant to each Loan Document shall be made by the Borrower to the
Administrative Agent for the pro  rata account of the Credit Parties
entitled to receive such payment.  All
payments shall be made without setoff, deduction or counterclaim not later than
noon on the date due in same day or immediately available funds to such account
as the Administrative Agent shall specify from time to time by notice to the
Borrower.  Funds received after that time
shall be deemed to have been received by the Administrative Agent on the next
succeeding Business Day.  The Administrative
Agent shall promptly remit in same day funds to each Credit Party its share, if
any, of such payments received by the Administrative Agent for the account of
such Credit Party.  All interest
(including interest on LIBO Rate Loans) and fees shall be computed on the basis
of the actual number of days (including the first day but excluding the last
day) occurring during the period for which such interest or fee is payable over
a year comprised of 360 days (or, in the case of interest on a Base Rate Loan
(calculated at other than the Federal Funds Rate), 365 days or, if appropriate,
366 days).  Except as otherwise provided
herein, payments due on a day other than a Business Day shall (except as
otherwise required by clause (b) of the definition of “Interest Period”)
be made on the next succeeding Business Day and such extension of time shall be
included in computing interest and fees in connection with that payment.


 


45
















 


(b)                                 Except as otherwise
expressly set forth therein, all payments made under any Loan Document shall be
applied upon receipt (i) first, to the payment of all Obligations (other than
Loans or interest thereon) owing to the Administrative Agent, in its capacity
as the Administrative Agent (including the reasonable fees and expenses of
counsel to the Administrative Agent), (ii) second, after payment in full in
cash of the amounts specified in clause (b)(i), to the ratable payment
of all interest and fees owing and due and payable with respect to the Credit
Extensions and all costs and expenses owing to the Secured Parties pursuant to
the terms of this Agreement, until paid in full in cash, (iii) third, after
payment in full in cash of the amounts specified in clauses (b)(i) and (b)(ii),
to the ratable payment of the principal amount of the Loans then outstanding
and due and payable, and, if such payment resulted from the proceeds of
collateral (or a payment under a Guaranty), to amounts owing to Secured Parties
under Cash Management Obligations then due and payable, (iv) fourth, after
payment in full in cash of the amounts specified in clauses (b)(i)
through (b)(iii), to the ratable payment of all other Obligations owing
to the Secured Parties and due and payable, and (v) fifth, after payment in
full in cash of the amounts specified in clauses (b)(i) through (b)(iv),
to each applicable Obligor or any other Person lawfully entitled to receive
such surplus pursuant to an order of a Governmental Authority.


 


SECTION 4.8.                               Sharing of
Payments.  If any
Credit Party shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of setoff or otherwise) on account of any Credit
Extension (other than pursuant to the terms of Sections 4.3, 4.4,
4.5 or 4.6) in excess of its pro  rata share of
payments obtained by all Credit Parties, such Credit Party shall purchase from
the other Credit Parties such participations in Credit Extensions made by them
as shall be necessary to cause such purchasing Credit Party to share the excess
payment or other recovery ratably (to the extent such other Credit Parties were
entitled to receive a portion of such payment or recovery) with each of them; provided
that if all or any portion of the excess payment or other recovery is
thereafter recovered from such purchasing Credit Party, the purchase shall be
rescinded and each Credit Party which has sold a participation to the
purchasing Credit Party shall repay to the purchasing Credit Party the purchase
price to the ratable extent of such recovery together with an amount equal to
such selling Credit Party’s ratable share (according to the proportion of (a)
the amount of such selling Credit Party’s required repayment to the purchasing
Credit Party to (b) total amount so recovered from the purchasing Credit Party)
of any interest or other amount paid or payable by the purchasing Credit Party
in respect of the total amount so recovered; provided that for the
avoidance of doubt, it is understood that Credit Extension shall not include
any obligations secured by Liens granted pursuant to clause (e) or (g)
of Section 7.2.3 or any Cash Management Obligations or Hedging
Obligations permitted by clause (i) of Section 7.2.2.  The Borrower agrees that any Credit Party
purchasing a participation from another Credit Party pursuant to this Section
may, to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation
as fully as if such Credit Party were the direct creditor of the Borrower in
the amount of such participation.  If
under any applicable bankruptcy, insolvency or other similar law any Credit
Party receives a secured claim in lieu of a setoff to which this Section
applies, such Credit Party shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent


 


46

















 


with the rights of the Credit Parties entitled under
this Section to share in the benefits of any recovery on such secured claim.


 


SECTION 4.9.                               Setoff.  Each Credit Party may, upon the occurrence
and during the continuance of any Event of Default described in clauses (a)
through (d) of Section 8.1.9 or, with the consent of the Required
Lenders, upon the occurrence and during the continuance of any other Event of
Default, appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) the Borrower
hereby grants to each Secured Party a continuing security interest in, any and
all balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Secured Party (excluding deposits held by the
Borrower as a fiduciary for others); provided that any such appropriation
and application shall be subject to the provisions of Section 4.8.  Each Credit Party agrees promptly to notify
the Borrower and the Administrative Agent after any such appropriation and
application made by such Credit Party; provided that the failure to give
such notice shall not affect the validity of such setoff and application.  The rights of each Credit Party under this
Section are in addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Credit Party may have.


 


SECTION 4.10.                         Replacement of
Lenders.  If any Lender (an “Affected
Lender”) (a) fails to vote in favor of a modification to this
Agreement that is otherwise approved by the requisite number of Lenders (which,
in the case of a modification requiring the consent of all Lenders or all
Lenders of a particular class, means all Lenders or all Lenders of such class,
as applicable, other than such non-consenting Lender), (b) makes a demand upon
the Borrower for (or if the Borrower is otherwise required to pay) amounts
pursuant to Section 4.3, 4.5 or 4.6 (and the payment of
such amounts are, and are likely to continue to be, more onerous in the
reasonable judgment of the Borrower than with respect to the other Lenders) or
(c) gives notice pursuant to Section 4.1 requiring a conversion of such
Affected Lender’s LIBO Rate Loans to Base Rate Loans or suspending such Lender’s
obligation to make Loans as, or to convert Loans into, LIBO Rate Loans (unless
such Lender, when taken together with all other Lenders giving such notices at
substantially the same time, constitute the Required Lenders), the Borrower
may, within 30 days of the failure to consent or receipt by the Borrower of
such demand or notice, as the case may be, give notice (a “Replacement
Notice”) in writing to the Administrative Agent and such Affected Lender of
its intention to replace such Affected Lender with a financial institution or
other Person (a “Substitute Lender”) designated in such Replacement
Notice; provided that no Replacement Notice may be given by the Borrower
if (i) such replacement conflicts with any applicable law or regulation, (ii)
any Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) such Lender consents to such modification, or, if
applicable, (iv) prior to any such replacement, such Lender shall have taken
any necessary action under Section 4.5 or 4.6 (if applicable) so
as to eliminate the continued need for payment of amounts owing pursuant to Section
4.5 or 4.6.  If the
Administrative Agent shall, in the exercise of its reasonable discretion and
within 30 days of its receipt of such Replacement Notice, notify the Borrower
and such Affected Lender in writing that the Substitute Lender is satisfactory
to the Administrative Agent (such consent not to be unreasonably withheld and
not being required where the Substitute Lender is already a Lender or an
Affiliate of a Lender), then such Affected Lender shall, subject to the payment
of any amounts due pursuant to Section 4.4, assign, in accordance


 


47

















 


with Section 10.11, all of its Commitments,
Loans, Notes (if any) and other rights and obligations under this Agreement and
all other Loan Documents to such Substitute Lender; provided that (i)
such assignment shall be made pursuant to a Lender Assignment Agreement, (ii)
the purchase price paid by such Substitute Lender shall be in the amount of
such Affected Lender’s Loans, together with all accrued and unpaid interest and
fees in respect thereof, plus all other amounts (including the amounts
demanded and unreimbursed under Sections 4.3, 4.5 and 4.6),
owing to such Affected Lender hereunder and (iii) the Borrower shall pay to the
Affected Lender and the Administrative Agent all reasonable out-of-pocket
expenses incurred by the Affected Lender and the Administrative Agent in
connection with such assignment and assumption (including the processing fees
described in Section 10.11).  Upon
the effective date of an assignment described above, the Substitute Lender
shall become a “Lender” for all purposes under the Loan Documents.


 


SECTION 4.11.                         Mitigation of
Claims.  Each Lender agrees that if it
makes any demand for payment under Section 4.3, 4.4, 4.5,
or 4.6, or if any adoption or change of the type described in Section
4.1 shall occur with respect to it, it will use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, as determined in
its sole discretion) to designate a different lending office (at the Borrower’s
cost) if the making of such a designation would reduce or obviate the need for
the Borrower to make payments under Section 4.3, 4.4, 4.5,
or 4.6, or would eliminate or reduce the effect of any adoption or
change described in Section 4.1.


 


ARTICLE V

CONDITIONS TO EFFECTIVENESS


 


SECTION 5.1.                               Initial Credit
Extension.  The
effectiveness of this Agreement and the obligations of the Lenders hereunder
shall be subject to the prior or concurrent satisfaction of each of the
conditions precedent set forth in this Article.


 


SECTION 5.1.1. 
Resolutions, etc.  The
Administrative Agent shall have received from each Obligor, as applicable, (i)
a copy of a good standing certificate (to the extent applicable), dated a date
reasonably close to the Closing Date, for each such Person and (ii) a
certificate, dated the Closing Date duly executed and delivered by such Person’s
Secretary or Assistant Secretary, managing member or general partner, as
applicable, as to


 


(a)                          resolutions of
each such Person’s Board of Directors (or other managing body, in the case of
an entity other than a corporation) then in full force and effect authorizing
the execution, delivery and performance of each Loan Document to be executed by
such Person and the transactions contemplated hereby and thereby;


 


(b)                         the incumbency
and signatures of those of its officers, managing member or general partner, as
applicable, authorized to act with respect to each Loan Document to be executed
by such Person; and


 


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(c)                          the full force
and validity of each Organic Document of such Person and copies thereof;


 


upon which certificates each Credit Party may
conclusively rely until it shall have received a further certificate of the
Secretary, Assistant Secretary, managing member or general partner, as
applicable, of any such Person canceling or amending the prior certificate of
such Person.


 


SECTION 5.1.2. 
Closing Date Certificate. 
The Administrative Agent shall have received the Closing Date
Certificate, dated the Closing Date and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificate the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of the Borrower as of such
date, and, at the time each such certificate is delivered, such statements
shall in fact be true and correct.  All documents
and agreements required to be appended to the Closing Date Certificate shall be
in form and substance satisfactory to the Administrative Agent.


 


SECTION 5.1.3. 
Delivery of Notes.  The
Administrative Agent shall have received, for the account of each Lender that
has requested a Note, such Lender’s Notes duly executed and delivered by an
Authorized Officer of the Borrower.


 


SECTION 5.1.4. 
Solvency, etc.  The
Administrative Agent shall have received a solvency certificate, in
substantially the form of Exhibit K, duly executed and delivered by
the chief financial or accounting Authorized Officer of the Borrower, dated as
of the Closing Date.


 


SECTION 5.1.5. 
Closing Documents.  The
Administrative Agent shall have received the following:


 


(a)                                  opinions, dated
the Closing Date and addressed to the Administrative Agent and all Lenders,
from (i) DLA Piper LLP (US), New York counsel to the Obligors and (ii)
Brownstein Hyatt Farber Schreck, LLP, Nevada counsel to the Borrower, each in
form and substance reasonably satisfactory to the Administrative Agent;


 


(b)                                 the
Ratification executed and delivered by each of the parties thereto;


 


(c)                                  copies of
Uniform Commercial Code, tax and judgment lien searches, or equivalent reports
or searches, each of a recent date listing all effective financing statements,
lien notices or comparable documents that name any Obligor as debtor and that
are filed in those state and county jurisdictions in which any Obligor is
organized or maintains its principal place of business and such searches or
reports shall reveal no Liens on any of the Collateral except for Liens
permitted by Section 7.2.3; and


 


(d)                                 all
certificates, agreements or instruments representing or evidencing the
Collateral consisting of securities or instruments accompanied by instruments
of transfer and stock powers undated and endorsed in blank have been delivered
to the Administrative Agent.


 


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SECTION 5.1.6. 
Fees, Expenses, etc.  Each
party to each Fee Letter shall have received for its own account, or for the
account of each Lender, as the case may be, all fees, costs and expenses due
and payable pursuant to Section 3.3 and, if then invoiced, Section
10.3.


 


SECTION 5.1.7. 
Other Indebtedness.  After
giving effect to the Transaction, Parent and its Subsidiaries shall have no
outstanding Indebtedness other than (i) up to $15,000,000 of letters of credit
incurred pursuant to clause (g) of Section 7.2.2 (plus letters of
credit that have been fully collateralized by a letter of credit referred to in
such clause (g)), (ii) up to $465,500,000 in aggregate principal
amount of New Notes and Existing Parent Notes and (iii) the Indebtedness
identified in Item 7.2.2(c) of the Disclosure Schedule.


 


SECTION 5.1.8. 
Balance Sheet Cash.  After
giving effect to the Transactions and all payments to be made in connection
therewith, Borrower shall have on its balance sheet at least $20,000,000 in
cash.


 


SECTION 5.1.9. 
Consents.  The Lenders
shall be satisfied that all requisite Governmental Authorities, third parties
and shareholders shall have approved or consented to the Transactions, and
there shall be no governmental or judicial action, actual or threatened, that
has or would have, singly or in the aggregate, a reasonable likelihood of
restraining, preventing or imposing burdensome conditions on the Transaction or
the other transactions contemplated hereby.


 


SECTION 5.1.10. 
Litigation.  There shall be
no litigation, public or private, or administrative proceedings, governmental
investigation or other legal or regulatory developments, actual or threatened,
that, singly or in the aggregate, could materially and adversely affect the
ability of the parties to consummate the financings contemplated hereby or the
other Transactions.


 


SECTION 5.1.11. 
No Material Adverse Effect. 
Since December 31, 2009, there has been no event, change, circumstance
or occurrence that, individually or in the aggregate, has had or would
reasonably be expected to result in a Material Adverse Effect.


 


SECTION 5.2.                                   All Credit
Extensions.  The
obligation of each Lender to make any Credit Extension shall be subject to the
satisfaction of each of the conditions precedent set forth below.


 


SECTION 5.2.1. 
Compliance with Warranties, No Default, etc.  Both before and after giving effect to any
Credit Extension the following statements shall be true and correct:


 


(a)                          the
representations and warranties set forth in each Loan Document shall, in each
case, be true and correct in all material respects (except that any
representation and warranty that is qualified as to “materiality” or “Material
Adverse Effect” shall be true and correct in all respects) with the same effect
as if then made (unless stated to relate solely to an earlier date, in which
case such representations and warranties shall be true and correct in all
material respects as of such earlier date); and


 


50

















 


(b)                         no Default
shall have then occurred and be continuing.


 


SECTION 5.2.2. 
Credit Extension Request, etc. 
Subject to Section 2.3.2, the Administrative Agent shall have
received a Borrowing Request if Loans are being requested.  Each of the delivery of a Borrowing Request
and the acceptance by the Borrower of the proceeds of such Credit Extension
shall constitute a representation and warranty by the Borrower that on the date
of such Credit Extension (both immediately before and after giving effect to
such Credit Extension and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct in all material
respects.


 


SECTION 5.2.3. 
Satisfactory Legal Form. 
All documents executed or submitted pursuant hereto by or on behalf of
any Obligor shall be reasonably satisfactory in form and substance to the
Administrative Agent and its counsel, and the Administrative Agent and its
counsel shall have received all information, approvals, documents or
instruments as the Administrative Agent or its counsel may reasonably request
in connection with such Credit Extension.


 


ARTICLE VI

REPRESENTATIONS AND WARRANTIES


 


In
order to induce each Credit Party to enter into this Agreement and to make
Credit Extensions hereunder, the Borrower represents and warrants to each
Credit Party on the Closing Date, on each other date required pursuant to the
terms of any Loan Document as set forth in this Article and on the date of any
Credit Extension (except to the extent expressly relating only to an earlier
date, then as of such earlier date):


 


SECTION 6.1.                                   Organization,
etc.  Each Obligor is validly
organized and existing and in good standing (to the extent applicable) under
the laws of the state or jurisdiction of its incorporation or organization, is
duly qualified to do business and is in good standing as a foreign entity in
each jurisdiction where the nature of its business requires such qualification,
except where the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect, and has full power and authority and holds all
requisite governmental licenses, permits and other approvals to enter into and
perform its Obligations under each Loan Document to which it is a party, to own
and hold under lease its property and to conduct its business substantially as
currently conducted by it, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.


 


SECTION
6.2.                                   Due Authorization, Non-Contravention, etc.  The execution, delivery and
performance by each Obligor of each Loan Document executed or to be executed by
it, each Obligor’s participation in the consummation of all aspects of the
Transaction, and the execution, delivery and performance by the Borrower or (if
applicable) any Obligor of the agreements executed and delivered by it in
connection with the Transaction are in each case within such Person’s powers,
have been duly authorized by all necessary action, and do not


 


51

















 


(a)                          contravene any
(i) Obligor’s Organic Documents, (ii) court decree or order binding on or
affecting any Obligor or (iii) law or governmental regulation binding on or
affecting any Obligor; or


 


(b)                         result in (i)
or require the creation or imposition of, any Lien on any Obligor’s properties
(except as permitted by this Agreement) or (ii) a default under any material
contractual restriction binding on or affecting any Obligor.


 


SECTION 6.3.                               Government
Approval, Regulation, etc.  No
authorization or approval or other action by, and no notice to or filing with,
any Governmental Authority (other than those that have been, or on the Closing
Date will be, duly obtained or made and which are, or on the Closing Date will
be, in full force and effect) is required for the consummation of the
Transaction or the due execution, delivery or performance by any Obligor of any
Loan Document to which it is a party. 
Neither the Borrower nor any of its Subsidiaries is an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.


 


SECTION 6.4.                               Validity, etc.  Each Loan Document that constitutes a
contract to which any Obligor is a party, assuming due authorization, execution
and delivery by the other parties thereto, constitutes the legal, valid and
binding obligations of such Obligor, enforceable against such Obligor in
accordance with their respective terms (except, in any case, as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by
principles of equity).


 


SECTION 6.5.                               Financial
Information.  The
financial statements of Parent and its respective Subsidiaries furnished to the
Administrative Agent and each Lender pursuant to clause (a) of Section
7.1.1 have been prepared in accordance with GAAP consistently applied, and
present fairly in all material respects the consolidated financial condition of
the Persons covered thereby as at the dates thereof and the results of their
operations for the periods then ended. 
All balance sheets, all statements of income and of cash flow and all
other financial information of Parent and its Subsidiaries and/or the Borrower
and its Subsidiaries, as applicable, furnished pursuant to Section 7.1.1
have been and will for periods following the Closing Date be prepared in
accordance with GAAP consistently applied and do or will present fairly in all
material respects the consolidated financial condition of the Persons covered
thereby as at the dates thereof and the results of their operations for the
periods then ended.


 


SECTION 6.6.                               No Material
Adverse Effect; Solvency. 
Since December 31, 2009, there has been no event, change, circumstance
or occurrence that, individually or in the aggregate, has had or would
reasonably be expected to result in a Material Adverse Effect.  Each of the Borrower and each Subsidiary
Guarantor, both before and after giving effect to each Credit Extension, is
Solvent.


 


SECTION 6.7.                               Litigation,
Labor Controversies, etc. 
There is no pending or, to the knowledge of the Borrower or any of its
Subsidiaries, threatened litigation, action, proceeding or labor controversy


 


52

















 


(a)                          except as
disclosed in Item 6.7 of the Disclosure Schedule, affecting the
Borrower, any of its Subsidiaries or any other Obligor, or any of their
respective properties, businesses, assets or revenues, which could reasonably
be expected to have a Material Adverse Effect, and no materially adverse
development has occurred in any labor controversy, litigation, arbitration or
governmental investigation or proceeding disclosed in Item 6.7 of the
Disclosure Schedule; or


 


(b)                         which purports
to affect the legality, validity or enforceability of any Loan Document or the
Transaction.


 


SECTION 6.8.                               Subsidiaries.  The Borrower has no Subsidiaries, except
those Subsidiaries which are identified in Item 6.8 of the Disclosure
Schedule, or which are permitted to have been organized or acquired in
accordance with Sections 7.2.5 or 7.2.9.


 


SECTION 6.9.                               Ownership of
Properties.  The
Borrower and each of its Subsidiaries owns (i) in the case of owned real
property, good and indefeasible fee title to, free and clear of all Liens
except for (x) Liens permitted pursuant to Section 7.2.3 and/or (y)
where the failure to do so could not reasonably be expected to have a Material
Adverse Effect, and (ii) in the case of owned personal property, good and valid
title to, or, in the case of leased real or personal property, valid and
enforceable leasehold interests (as the case may be) in, all of its properties
and assets, tangible and intangible, of any nature whatsoever, free and clear
in each case of all Liens, except for (x) Liens permitted pursuant to Section
7.2.3 and/or (y) except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. 
The real property listed in Item 6.9(a) of the Disclosure
Schedule constitutes, as of the Closing Date, all of the real property owned or
leased by the Borrower and each of its Subsidiaries as of the Closing Date.


 


SECTION 6.10.                         Taxes.  The Borrower and each of its Subsidiaries has
(i) filed all material Tax Returns and reports required by law to have been
filed by it and all such Tax Returns and reports are true, correct and complete
in all material respects and (ii) has paid all material Taxes thereby shown to
be due and owing (including in its capacity as a withholding agent), except any
such Taxes which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on the books of the Borrower or the applicable Subsidiary.


 


SECTION 6.11.                         Pension and
Welfare Plans.  During the
twelve-consecutive-month period prior to the Closing Date and prior to the date
of any Credit Extension hereunder, no steps have been taken to terminate any
Pension Plan, and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA on
the assets of the Borrower or any of its Subsidiaries.  No condition exists or event or transaction
has occurred with respect to any Pension Plan which could reasonably be
expected to result in the incurrence by the Borrower or any member of the
Controlled Group of any material liability, fine or penalty that would have a
Material Adverse Effect.


 


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SECTION 6.12.                         Environmental
Warranties.  Except as
set forth in Item 6.12 of the Disclosure Schedule:


 


(a)                          the Borrower
and each of its Subsidiaries are, and for the past three years have been, in
compliance with all Environmental Laws except such noncompliance that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect;


 


(b)                         there are no
pending or, to the knowledge of the Borrower, threatened (i) claims,
complaints, notices or requests for information received by the Borrower or any
of its Subsidiaries with respect to any alleged violation of any Environmental
Law, or (ii) complaints, notices or inquiries to the Borrower or any of its
Subsidiaries with respect to potential liability under any Environmental Law,
in each case, that could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;


 


(c)                          there have been
no Releases of Hazardous Materials at, on, from or under any property now or,
to the knowledge of the Borrower, previously owned, operated or leased by the
Borrower or any of its Subsidiaries that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect;


 


(d)                         the Borrower
and its Subsidiaries have been issued and are in compliance with all permits,
certificates, approvals, licenses and other authorizations under Environmental
Laws that are necessary to own or operate their properties and facilities, and
for their businesses as currently conducted, in each case, except that
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect;


 


(e)                          other than
properties identified as “no further remedial action planned” or as having
similar status, no property now or, to the knowledge of the Borrower,
previously owned, operated or leased by the Borrower or any of its Subsidiaries
is listed or proposed for listing (with respect to owned property only) on the
National Priorities List pursuant to CERCLA, on the CERCLIS or on any similar
published, final state list of sites requiring investigation or clean-up, in
each case, that could individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect;


 


(f)                            there are no
underground storage tanks, active or abandoned, including petroleum storage
tanks, on or under any property now or, to the knowledge of the Borrower,
previously owned, operated, used or leased by the Borrower or any of its
Subsidiaries that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect;


 


(g)                         to the knowledge
of the Borrower, neither the Borrower nor any Subsidiary has disposed of,
whether directly or indirectly, any Hazardous Material in a manner which could
reasonably be expected to lead to claims against the Borrower or such
Subsidiary for any investigation or cleanup work, damage to natural resources
or personal 


 


54

















 


injury, or any other
liability under Environmental Laws, including claims under CERCLA, that could
reasonably be expected to have a Material Adverse Effect;


 


(h)                         there are no
polychlorinated biphenyls, hexavalent chromium or asbestos present at any
property now or, to the knowledge of the Borrower, previously owned, operated
or leased by the Borrower or any Subsidiary that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect; and


 


(i)                             no conditions
exist at, on or under any property now or, to the knowledge of the Borrower,
previously owned, operated or leased by the Borrower, any of its Subsidiaries
or any predecessor thereof that, with or without the passage of time, or the
giving of notice or both, could reasonably be expected to give rise to
liability under any Environmental Law of the Borrower or any of its
Subsidiaries, in each case, that could reasonably be expected to have a
Material Adverse Effect.


 


SECTION 6.13.                         Accuracy of
Information.  None of the
factual information (excluding projections) heretofore or contemporaneously
furnished in writing to any Credit Party by or on behalf of any Obligor in
connection with any Loan Document or any transaction contemplated hereby
(including the Transaction) contains any untrue statement of a material fact,
or omits to state any material fact necessary to make any information therein,
under the circumstances under which it is made, not misleading, and no factual
information (excluding projections) hereafter furnished in connection with any
Loan Document by or on behalf of any Obligor to any Credit Party will contain
any untrue statement of a material fact or will omit to state any material fact
necessary to make any information not misleading on the date as of which such
information is dated or certified.  All
projections that have been or will be made available to any Credit Party by the
Borrower have been or will be prepared in good faith based upon reasonable
assumptions (it being understood that such projections are subject to
significant uncertainties and contingencies beyond the Borrower’s control).


 


SECTION 6.14.                         Regulations T,
U and X.  No Obligor is engaged in the
business of extending credit for the purpose of buying or carrying margin
stock, and no proceeds of any Credit Extension will be used to purchase or
carry margin stock or otherwise for a purpose which violates, or would be
inconsistent with, F.R.S. Board Regulations T, U or X.  Terms for which meanings are provided in
F.R.S. Board Regulations T, U or X or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.


 


SECTION 6.15.                         Absence of Any
Undisclosed Liabilities. 
There are no material liabilities of any Obligor of any kind whatsoever,
whether accrued, contingent, absolute, determined, determinable or otherwise,
other than those liabilities provided for or disclosed in the most recently
delivered financial statements or those liabilities that have been disclosed to
the Administrative Agent or are otherwise not prohibited from being incurred
hereunder.


 


SECTION 6.16.                         Mortgages.  Each Mortgage is effective to create, in
favor of the Administrative Agent, for its benefit and the benefit of the
Secured Parties, legal, valid and enforceable first priority Liens on, and
security interests in, all of the respective Obligor’s right,


 


55
















 


title and interest in and to the Mortgaged
Properties thereunder and the proceeds thereof, subject only to the Liens set
forth in Section 7.2.3 or other Liens acceptable to the
Administrative Agent, and when the Mortgages are filed in the offices specified
on Schedule 6 to the perfection certificate dated the Closing Date (or, in the
case of any Mortgage executed and delivered after the date thereof in
accordance with the provisions of Section 7.1.8, when such Mortgage
is filed in the offices specified in the local counsel opinion delivered with
respect thereto in accordance with the provisions of Section 7.1.8),
the Mortgages shall constitute fully perfected Liens on, and security interests
in, all right, title and interest of the respective Obligor in the Mortgaged
Properties and the proceeds thereof, in each case prior and superior in right
to any other person, other than Liens permitted hereunder.


 


SECTION 6.17.               Amounts of
Other Debt.  As of the
Closing Date, there are outstanding (x) $300,000,000 in aggregate
principal amount of First Lien Notes, (y) $139,407,000 in aggregate
principal amount of Second Lien Notes and (z) $11,736,000 in aggregate
principal amount of Existing Parent Notes.


 


ARTICLE VII

COVENANTS


 


SECTION 7.1.                 Affirmative Covenants.  The Borrower agrees with
each Credit Party that on and after the Closing Date until the Termination Date
has occurred, the Borrower will, and will cause its Subsidiaries to, perform or
cause to be performed the obligations set forth below.


 


SECTION 7.1.1.  Financial Information, Reports, Notices, etc.  The Borrower will furnish
the Administrative Agent (which will distribute to each Lender) copies of the
following financial statements, reports, notices and information:


 


(a)         as soon as
available and in any event within the earlier of (x) 45 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year and (y) if
Parent or the Borrower is a public reporting company at such time, such earlier
date as the SEC requires the filing of such information (or if Parent or the
Borrower is required to file such information on a Form 10-Q with the SEC,
promptly following such filing), an unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Quarter and consolidated
statements of income and cash flow of the Borrower and its Subsidiaries for
such Fiscal Quarter and for the period commencing at the end of the previous
Fiscal Year and ending with the end of such Fiscal Quarter, and including, in
comparative form the figures for the corresponding Fiscal Quarter in, and year
to date portion of, the immediately preceding Fiscal Year, in each case,
certified as in accordance with GAAP consistently applied (subject to normal
year-end audit adjustments and the omission of footnotes for the monthly
financial statements) presenting fairly in all material respects the
consolidated financial condition of the Persons covered thereby as at the date
thereof and the results of their operations for the periods then ended by the
chief financial or accounting Authorized Officer of the Borrower (collectively,
the “Unaudited Quarterly Financial Statements”); provided that in
the event Parent files quarterly financial statements 


 


56

















 


with the SEC, the Borrower
may elect to deliver consolidated unaudited quarterly financial statements for
Parent and its Subsidiaries in lieu of Unaudited Quarterly Financial Statements
for the Borrower so long as such financial statements are accompanied by a
consolidating schedule thereto for the Borrower and its Subsidiaries delivered
to the Administrative Agent together therewith;


 


(b)        as soon as
available and in any event within the earlier of (x) 90 days after the end
of each Fiscal Year and (y) if Parent or the Borrower is a public
reporting company at such time, such earlier date as the SEC requires the
filing of such information (or if Parent or the Borrower is required to file
such information on a Form 10-K with the SEC, promptly following such filing),
a copy of the consolidated balance sheet of the Borrower and its Subsidiaries,
and the related consolidated statements of income and cash flow of the Borrower
and its Subsidiaries for such Fiscal Year, setting forth in comparative form
the figures for the immediately preceding Fiscal Year, audited (without any
Impermissible Qualification) by nationally recognized independent public
accountants (collectively, the “Audited Financial Statements”); provided
that in the event Parent is required or desires to file audited financial
statements with the SEC, the Borrower may elect to deliver consolidated audited
financial statements for Parent and its Subsidiaries in lieu of Audited
Financial Statements for the Borrower so long as such financial statements are accompanied
by a consolidating schedule for the Borrower and its Subsidiaries (which shall
not be required to be audited) thereto delivered to the Administrative Agent
together therewith;


 


(c)         concurrently
with the delivery of the financial information pursuant to clauses (a) and
(b) for each Fiscal Quarter ending after the Closing Date, a
Compliance Certificate, executed by the chief financial or accounting
Authorized Officer of the Borrower, showing (i) compliance with the
financial covenants set forth in Section 7.2.4 for the period of
four consecutive Fiscal Quarters then ended (or such shorter period as has
elapsed since the Closing Date), (ii) the aggregate amount of
acquisitions, including any Permitted Acquisitions, financed with the proceeds
of Indebtedness permitted hereunder and identifying the clause of Section 7.2.2
that such Indebtedness is permitted under, and whether or not such Indebtedness
constitutes Revolving Loans, (iii) reasonably detailed calculations
demonstrating compliance with Sections 7.2.2, 7.2.5, 7.2.6,
7.2.10 and 7.2.16, (iv) the amount of Restricted Payments,
if any, that the Borrower intends to pay to Parent pursuant to clause (f) of
Section 7.2.6 on the immediately succeeding date on which Parent’s
dividend policy provides for the payment of a dividend (it being understood
that the amount actually paid may differ from such amount reported), and (v) stating
that no Default has occurred and is continuing (or, if a Default has occurred,
specifying the details of such Default and the action that the Borrower or an
Obligor has taken or proposes to take with respect thereto);


 


(d)        as soon as
possible and in any event within five days after the Borrower or any other
Obligor obtains knowledge of the occurrence of a Default, a statement of an
Authorized Officer of the Borrower setting forth details of such Default and
the action which the Borrower or such Obligor has taken and proposes to take
with respect thereto;


 


57

















 


(e)         as soon as
possible and in any event within five days after the Borrower or any other
Obligor obtains knowledge of (i) the occurrence of any material adverse
development with respect to any litigation, action, proceeding or labor
controversy described in Item 6.7 of the Disclosure Schedule, (ii) the
commencement of any litigation, action, proceeding or labor controversy of the
type and materiality described in Section 6.7, or (iii) any
event that could reasonably be expected to have a Material Adverse Effect,
notice thereof and, to the extent the Administrative Agent reasonably requests,
copies of all documentation relating thereto;


 


(f)         promptly after
the sending or filing thereof, copies of all reports, notices, prospectuses and
registration statements which any Obligor files with the SEC or any national
securities exchange;


 


(g)        promptly upon
becoming aware of (i) the institution of any steps by any Person to
terminate any Pension Plan, (ii) the failure to make a required
contribution to any Pension Plan if such failure is sufficient to give rise to
a Lien under Section 302(f) of ERISA on the assets of the Borrower or
any of its Subsidiaries, (iii) the taking of any action with respect to a
Pension Plan which could reasonably be expected to result in the requirement
that any Obligor furnish a bond or other security to the PBGC or such Pension
Plan, or (iv) the occurrence of any event with respect to any Pension Plan
which could reasonably be expected to result in the incurrence by any Obligor
of any material liability, fine or penalty, notice thereof and copies of all
documentation relating thereto;


 


(h)        promptly upon
receipt thereof, copies of all “management letters” submitted to the Borrower
or any other Obligor by the independent public accountants referred to in clause
(b) in connection with each audit made by such accountants;


 


(i)          as soon as
possible and in any event within five days after receipt thereof by any Obligor
or any Subsidiary thereof, copies of all default notices and fully executed
amendments, waivers and other modifications received under or pursuant to any
documentation governing any of the New Notes or any Pari Passu Lien
Indebtedness (or any Refinancing Indebtedness in respect of the New Notes and
Pari Passu Lien Indebtedness);


 


(j)          such other
financial and other information as any Lender through the Administrative Agent
may from time to time reasonably request (including information and reports in
such detail as the Administrative Agent may reasonably request with respect to
the terms of and information provided pursuant to the Compliance Certificate);
and


 


(k)         prior to
incurring any Hedging Obligations, Borrower shall notify Administrative Agent
of such proposed incurrence, which such notice shall contain the face amount of
such proposed Hedging Obligations and any other terms as reasonably requested
by the Administrative Agent.


 


SECTION 7.1.2. 
Maintenance of Existence; Compliance with Laws, etc.  The Borrower will, and will cause each of its
Subsidiaries to, preserve and maintain its legal existence (except 


 


58

















 


as
otherwise permitted by Section 7.2.9), and comply in all material
respects with (i) the terms of (and shall perform or cause the applicable
Subsidiary to perform) its obligations under all material agreements to which
it is a party, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect and (ii) all applicable laws,
rules, regulations and orders, including the payment (before the same become
delinquent), of all Taxes, imposed upon the Borrower or each of Subsidiaries or
upon their property except to the extent being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on the books of the Borrower or such Subsidiary,
as applicable, except where the failure to do so could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


SECTION 7.1.3. 
Maintenance of Properties. 
The Borrower will, and will cause each of its Subsidiaries to, pay and
perform its obligations under all material leases, maintain, preserve, protect
and keep its and their respective Mortgaged Properties in good repair, working
order and condition (ordinary wear and tear excepted), and make necessary
repairs, renewals and replacements so that the business carried on by the
Borrower and its Subsidiaries may be conducted at all times, unless the failure
to do so would not give rise to material liabilities under Environmental Laws
or the reasonable likelihood of harm to the public, or the Borrower or such
Subsidiary determines in good faith that the continued maintenance and/or
preservation of such property is no longer economically desirable, necessary or
useful to the business of the Borrower or any of its Subsidiaries or the
Disposition of such property is otherwise permitted by Section 7.2.9
or 7.2.10, or would not reasonably be expected to result in a Material
Adverse Effect.


 


SECTION 7.1.4. 
Insurance.  The Borrower
will, and will cause each of its Subsidiaries to maintain:


 


(a)         insurance on
its Mortgaged Properties with financially sound and reputable insurance
companies against loss and damage in at least the amounts (and with only those
deductibles) customarily maintained, and against such risks (including fire and
other risks insured against by extended coverage) as are typically insured
against in the same general area of such property, by Persons of comparable
size engaged in the same or similar business as the respective Obligor owning
such property;


 


(b)        liability
insurance in customary amounts for similar companies;


 


(c)         all worker’s
compensation, employer’s liability insurance or similar insurance as may be
required under the laws of any state or jurisdiction in which it may be engaged
in business; and


 


(d)        if any improved
portion of any Mortgaged Property is at any time located in an area identified
by the Federal Emergency Management Agency (or any successor agency) as a
Special Flood Hazard Area with respect to which flood insurance has been made
available under the National Flood Insurance Act of 1968 (as now or hereafter
in effect or successor act thereto), flood insurance with a financially sound
and reputable insurer in an amount and otherwise sufficient to comply with all
applicable rules and regulations


 


59

















 


promulgated pursuant to the
Flood Insurance Laws and deliver to the Administrative Agent evidence of such
compliance in form and substance reasonably acceptable to the Administrative
Agent.


 


Without
limiting the foregoing, all insurance policies covering collateral required
pursuant to this Section shall name the Administrative Agent on behalf of
the Secured Parties as mortgagee or lender loss payee, as the case may be (in
the case of property insurance), or additional insured and loss payee (in the
case of liability insurance), as applicable, and provide that no cancellation
or modification of the policies will be made without at least thirty days’ prior
written notice (or such shorter period as the Administrative Agent may approve)
to the Administrative Agent.


 


SECTION 7.1.5. 
Books and Records.  The
Borrower will, and will cause each of its Subsidiaries to, keep books and
records in accordance with GAAP which accurately reflect in all material
respects all of its business affairs and transactions and permit each Credit
Party or any of their respective representatives, at reasonable times and
intervals upon reasonable notice to the Borrower, to visit each Obligor’s
offices, to discuss such Obligor’s financial matters with its officers and
members of management, and its independent public accountants (and the Borrower
hereby authorizes such independent public accountant to discuss each Obligor’s
financial matters with each Credit Party or their representatives) and to
examine (and photocopy extracts from) any of the Borrower’s books and
records.  The Borrower shall pay any fees
of such independent public accountant incurred in connection with any Credit Party’s
exercise of its rights pursuant to this Section.


 


SECTION 7.1.6. 
Environmental Law Covenant. 
The Borrower will, and will cause each of its Subsidiaries to,


 


(a)         use and operate
all of its and their facilities and properties in compliance with all Environmental
Laws, maintain all permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain in
compliance therewith, handle all Hazardous Materials in compliance with all
applicable Environmental Laws, take timely action to resolve any non-compliance
with or potential liability under Environmental Laws and keep its owned
property free of any Lien imposed by any Environmental Law (unless such
non-compliance, liability or Lien is being contested in good faith and
consistent with GAAP or could not reasonably be expected to result in a
Material Adverse Effect); and


 


(b)        promptly notify
the Administrative Agent of any potential non-compliance with or liability
under any Environmental Law involving a potential loss to the Borrower or any
of its Subsidiaries of greater than $1,000,000, individually or $2,500,000 in
the aggregate and promptly provide to the Administrative Agent upon its request
any written claim, complaint, report, notice, inquiry or other document
relating thereto.


 


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SECTION 7.1.7. 
Use of Proceeds.  The
Borrower will apply the proceeds of the Credit Extensions as follows:


 


(a)         in the case of
the Revolving Loans, for working capital and general corporate purposes of the
Borrower and the Subsidiary Guarantors; and


 


(b)        in the case of
the Swing Line Loans, for working capital and general corporate purposes of the
Borrower and the Subsidiary Guarantors;


 


provided that if any portion of a
Credit Extension will be used to fund a settlement or judgment, the Borrower
shall specify such use of proceeds in the Borrowing Request.


 


SECTION 7.1.8. 
Future Guarantors, Security, etc.  The Borrower will, and will cause each U.S.
Subsidiary to, execute any documents, Filing Statements, agreements and
instruments, and take all further action (including within 90 days of the
acquisition thereof, filing Mortgages with respect to any owned real property
having a cost or book value (whichever is higher) of at least $1,500,000) that
may be required under applicable law, or that the Administrative Agent may
reasonably request, in order to effectuate the transactions contemplated by the
Loan Documents and in order to grant, preserve, protect and perfect the validity
and first priority (subject to (including as to priority) Liens permitted by Section 7.2.3)
of the Liens created or intended to be created by the Loan Documents.  The Borrower will cause any subsequently
acquired or organized U.S. Subsidiary to execute the Guaranty (or supplement
thereto) and the Security Agreement (or supplement thereto) and each other
applicable Loan Document pursuant to which such U.S. Subsidiary grants to the
Administrative Agent in favor of the Secured Parties a security interest in, or
Mortgage on, substantially all of its owned assets.  Such Liens will be created under the Loan
Documents in form and substance reasonably satisfactory to the Administrative
Agent in consultation with the Borrower, and the Borrower shall deliver or
cause to be delivered to the Administrative Agent all such instruments and
documents (including legal opinions, Mortgages, Title Policies, Surveys, life
of loan flood hazard determinations and lien searches) as the Administrative
Agent shall reasonably request to evidence compliance with this Section.  Notwithstanding anything to the contrary in
this Section, so long as no Event of Default has occurred and is continuing,
the Borrower shall not be required to deliver a Foreign Pledge Agreement with
respect to a Foreign Subsidiary unless such Foreign Subsidiary is a Significant
Subsidiary.


 


SECTION 7.1.9. 
Mortgaged Property Requirements. 
The Administrative Agent shall have received the following within ninety
(90) days after the Original Closing Date, unless extended by the
Administrative Agent in its sole discretion:


 


(i)            with respect to
each Mortgaged Property, such consents, approvals or tenant subordination
agreements as shall reasonably be deemed necessary by the Administrative Agent
in order for the owner of such Mortgaged Property to grant the Lien
contemplated by the Mortgage with respect to such Mortgaged Property;


 


(ii)           with respect to
each Mortgage, a policy of title insurance (or marked up title insurance
commitment having the effect of a policy of title insurance) insuring the 


 


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Lien of such Mortgage as a
valid first mortgage Lien on the respective Mortgaged Property and fixtures
described therein in the amount equal to 115% of the book value or cost (whichever
is higher) of such Mortgaged Property (it being understood that such policy or
policies may include a so-called “pro tanto” endorsement effectively causing
such policy or policies to be issued concurrently with the policy or policies
issued to the collateral agent for the First Lien Notes and/or the collateral
agent for the Second Lien Notes insuring its/their respective Lien on the
Mortgaged Property), which policy (or such marked-up commitment) (each, a “Title
Policy”) shall (A) be issued by the Title Company, (B) to the
extent necessary, include such reinsurance arrangements (with provisions for
direct access, if necessary) as shall be reasonably acceptable to the
Administrative Agent, (C) contain a “tie-in” or “cluster” endorsement, if
available under applicable law (i.e., policies which insure against losses
regardless of location or allocated value of the insured property up to a
stated maximum coverage amount), (D) have been supplemented by
endorsements (to the extent applicable and available under local/state law at
commercially reasonable rates) on matters relating to usury, first loss, last
dollar, zoning (or in lieu thereof, reports from zoning report companies or
zoning letters as may be reasonably acceptable to the Administrative Agent),
contiguity, revolving credit, doing business, waiver of arbitration
non-imputation, public road access, survey, variable rate, environmental lien,
subdivision, mortgage recording tax, separate tax lot, revolving credit, and
so-called comprehensive coverage over covenants and restrictions, and (E) contain
no exceptions to title other than Liens permitted pursuant to Section 7.2.3
and exceptions reasonably acceptable to the Administrative Agent;


 


(iii)          with respect to
each Mortgaged Property, such affidavits, certificates, information (including
financial data) and instruments of indemnification (including a so-called “gap”
indemnification) as shall be required to induce the Title Company to issue the
Title Policy/ies and endorsements contemplated above;


 


(iv)          evidence
reasonably acceptable to the Administrative Agent of payment by Borrower of all
Title Policy premiums, search and examination charges, escrow charges and
related charges, mortgage recording taxes, fees, charges, costs and expenses
required for the recording of the Mortgages and issuance of the Title Policies
referred to above;


 


(v)           with respect to
each Mortgaged Property, copies of all leases in which Borrower or any
Subsidiary holds the lessor’s interest or other agreements relating to
possessory interests, if any.  To the
extent any of the foregoing affect any Mortgaged Property, such agreement shall
be subordinate to the Lien of the Mortgage to be recorded against such
Mortgaged Property, either expressly by its terms or, if such agreement shall
not be so subordinate, then Borrower or such Subsidiary shall use commercially
reasonable efforts to obtain a subordination, non-disturbance and attornment
agreement from such tenant, which agreement shall be reasonably acceptable to
the Administrative Agent;


 


(vi)          with respect to
each Mortgaged Property, each Obligor shall have made all notifications,
registrations and filings, to the extent required by, and in accordance with, 


 


62

















 


all Governmental Real Property
Disclosure Requirements applicable to such Mortgaged Property;


 


(vii)         Surveys with
respect to each Mortgaged Property; and


 


(viii)        an amendment to
the Mortgage (or to the extent requested by the Administrative Agent, a new
Mortgage) duly authorized, executed and acknowledged, in recordable form and
otherwise in form and substance reasonably acceptable to the Administrative
Agent with respect to each Mortgaged Property sufficient for the owner of such
Mortgaged Property to (x) grant to the Administrative Agent and/or confirm
the Administrative Agent’s Mortgage Lien on and security interests in such
Mortgaged Property, (y) confirm such owner’s valid and indefeasible title
thereto and (z) to confirm the Mortgaged Property intended to be
encumbered thereby.


 


SECTION 7.2.                 Negative
Covenants.  The
Borrower covenants and agrees with each Lender and the Administrative Agent
that on and after the Closing Date until the Termination Date has occurred, the
Borrower will, and will cause its Subsidiaries to, perform or cause to be
performed the obligations set forth below.


 


SECTION 7.2.1. 
Business Activities.  The
Borrower will not, and will not permit any of its Subsidiaries to, engage in
any business activity except those business activities engaged in on the Closing
Date and business activities that are reasonably related, ancillary or
complementary thereto or a reasonable extension, development or expansion
thereof.


 


SECTION 7.2.2. 
Indebtedness.  The Borrower
will not, and will not permit any of its Subsidiaries to, create, incur, assume
or permit to exist any Indebtedness, other than:


 


(a)         Indebtedness in
respect of the Obligations;


 


(b)        Indebtedness of
Borrower and the Guarantors under the First Lien Notes, Pari Passu Lien
Indebtedness, the Second Lien Notes and Refinancing Indebtedness in respect of
such First Lien Notes, Second Lien Notes and Pari Passu Lien Indebtedness, in
an aggregate principal amount for all such Indebtedness incurred or outstanding
under this clause (b) not to exceed at any time (x) $451,300,000
minus (y) the aggregate principal amount of Existing Parent Notes (or any
refinancing Indebtedness issued in exchange therefor that is not Indebtedness
of Borrower or any Subsidiary) at such time;


 


(c)         Indebtedness
existing as of the Closing Date (other than pursuant to clause (b) of
this Section 7.2.2) which is identified in Item 7.2.2(c) of
the Disclosure Schedule, and Refinancing Indebtedness in respect thereof;


 


(d)        unsecured
Indebtedness (i) incurred in the ordinary course of business of the Borrower
and its Subsidiaries (including open accounts extended by suppliers on normal
trade terms in connection with purchases of goods and services which are not
overdue for a period of more than 90 days or, if overdue for more than 90 days,
as to 


 


63

















 


which a dispute exists and
adequate reserves in conformity with GAAP have been established on the books of
the Borrower or such Subsidiary) and (ii) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, but
excluding (in each case) Indebtedness incurred through the borrowing of money
or Contingent Liabilities in respect thereof;


 


(e)         Indebtedness (i) in
respect of industrial revenue bonds or other similar governmental or municipal
bonds, (ii) evidencing the deferred purchase price of newly acquired
property or incurred to finance the acquisition of equipment of the Borrower or
its Subsidiaries (pursuant to purchase money mortgages or otherwise, whether
owed to the seller or a third party) used in the ordinary course of business of
the Borrower or its Subsidiaries and any Indebtedness assumed in connection
with such acquisition (provided that such Indebtedness is incurred
within 90 days of the acquisition of such property or equipment), (iii) in
respect of Capitalized Lease Liabilities and (iv) refinancing of
Indebtedness referred to in clauses (i) through (iii); provided
that the aggregate amount of all Indebtedness outstanding pursuant to this clause
(e) shall not at any time exceed $10,000,000;


 


(f)         Indebtedness of
any Subsidiary owing to the Borrower or any other Subsidiary and Indebtedness
of the Borrower owing to any Subsidiary, which Indebtedness


 


(i)            shall, if
payable to the Borrower or a Subsidiary Guarantor, and if evidenced by one or
more promissory notes, such promissory notes shall be, duly executed and
delivered in pledge to the Administrative Agent pursuant to a Loan Document and
if payable by the Borrower or any Subsidiary Guarantor, be subordinated to the
Obligations on terms and conditions reasonably acceptable to the Administrative
Agent; and


 


(ii)           if incurred by
a Subsidiary that is not a Subsidiary Guarantor owing to the Borrower or a
Subsidiary Guarantor, shall not (when aggregated with the amount of Investments
made by the Borrower and the Subsidiary Guarantors in Subsidiaries that are not
Subsidiary Guarantors under clause (e)(i) of Section 7.2.5)
exceed $5,000,000 in the aggregate;


 


(g)        Indebtedness of
the Borrower and its Subsidiaries arising from letters of credit issued for the
account of the Borrower or such Subsidiary by a Lender in an aggregate stated
amount at any time outstanding (as determined by aggregating the stated amount
of all such letters of credit and all reimbursement obligations with respect
thereto) not to exceed $15,000,000;


 


(h)        Indebtedness of
a Person existing at the time such Person became a Subsidiary of the Borrower
in connection with a Permitted Acquisition, but only if such Indebtedness was
not created or incurred in contemplation of such Person becoming a Subsidiary,
and Refinancing Indebtedness in respect thereof;


 


64

















 


(i)          Hedging
Obligations entered into in the ordinary course of business and not for
speculative purposes;


 


(j)          Indebtedness
arising from the honoring by a bank or other financial institution of a check,
draft or similar instrument drawn against insufficient funds in the ordinary
course of business; provided that such Indebtedness is extinguished
within five Business Days of its incurrence;


 


(k)         (A) obligations
in respect of performance bonds, bankers’ acceptances, workers’ compensation
claims, surety, bid or appeal bonds, completion guarantees and payment
obligations in connection with self-insurance or similar obligations provided
by the Borrower or any Subsidiary in the ordinary course of business and (B) obligations
owed to (including in respect of letters of credit for the benefit of) any
Person in connection with workers’ compensation, health, disability or other
employee benefits or property, casualty or liability insurance provided by such
Person to the Borrower or any Subsidiary pursuant to reimbursement or
indemnification obligations to such Person, in each case, incurred in the
ordinary course of business;


 


(l)          Indebtedness
arising from agreements of the Borrower or any Subsidiary of the Borrower
providing for indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Subsidiary, other than guarantees of
Indebtedness incurred by any Person acquiring all or any portion of such
business, assets or a Subsidiary for the purpose of financing such acquisition;
and


 


(m)        other
Indebtedness of the Borrower and its Subsidiaries (other than Indebtedness of
Subsidiaries that are not Subsidiary Guarantors owing to the Borrower or
Subsidiary Guarantors) in an aggregate amount at any time outstanding not to
exceed $25,000,000;


 


provided that (A) no
Indebtedness otherwise permitted by clauses (e) or (f)(ii) shall
be assumed, created or otherwise incurred if a Default has occurred and is then
continuing or would result therefrom and (B) in the event that an item of
Indebtedness (or any portion thereof) meets the criteria of more than one of
the types of Indebtedness described above, the Borrower, in its sole
discretion, will classify such item of Indebtedness (or any portion thereof) at
the time of incurrence and will only be required to include the amount and type
of such Indebtedness in one of the above clauses.


 


SECTION 7.2.3. 
Liens.  The Borrower will
not, and will not permit any of its Subsidiaries to, create, incur, assume or
permit to exist any Lien upon any of its property (including Capital Securities
of any Person), revenues or assets, whether now owned or hereafter acquired,
except:


 


(a)         Liens securing
payment of the Obligations;


 


65
















 


(b)           Liens on Collateral securing First Lien Notes, Second Lien
Notes, Pari Passu Lien Indebtedness or Refinancing Indebtedness in respect
thereof incurred pursuant to clause (b) or clause (m) of
Section 7.2.2, so long as, in each case, such Liens (x) in the
case of First Lien Notes and Pari Passu Lien Indebtedness and Refinancing
Indebtedness in respect thereof (except to the extent such Refinancing
Indebtedness consists of Second Lien Notes, in which case the immediately
following clause (y) will apply), are subject to the First Lien
Intercreditor Agreement and (y) in the case of Second Lien Notes or any
Refinancing Indebtedness in respect thereof (except to the extent such
Refinancing Indebtedness consists of First Lien Notes or Pari Passu Lien
Indebtedness, in which case the immediately following clause (x) will
apply), are subject to the Junior Lien Intercreditor Agreement;


 


(c)           Liens existing as of the Closing Date and disclosed in Item
7.2.3(c) of the Disclosure Schedule securing Indebtedness described in
clause (c) of Section 7.2.2, and Refinancing
Indebtedness in respect of Indebtedness outstanding pursuant to such clause
(c); provided that no such Lien shall encumber any additional
property;


 


(d)           Liens securing Indebtedness incurred pursuant to clause
(e) of Section 7.2.2; provided that (i) such
Lien is granted within 90 days after such Indebtedness is incurred, (ii) the
Indebtedness secured thereby does not exceed the cost or the fair market value
of the applicable property, improvements or equipment at the time of such
acquisition (or construction) and (iii) such Lien attaches only to the
assets that are the subject of the Indebtedness referred to in such clause and
proceeds thereof and additions and accessions thereto;


 


(e)           Liens on cash collateral in an amount not to exceed
$15,000,000 securing standby letters of credit issued by a Lender pursuant to clause
(g) of Section 7.2.2;


 


(f)            Liens securing Indebtedness incurred pursuant to clause
(h) of Section 7.2.2; provided that such Liens
existed prior to such Person becoming a Subsidiary, were not created in
anticipation thereof and attach only to the assets of such Person acquired (to
the extent such assets were owned by such Person immediately prior to the
related acquisition);


 


(g)           Liens on cash collateral in an amount not to exceed
$5,000,000 securing Hedging Obligations incurred in compliance with clause (i) of
Section 7.2.2;


 


(h)           Liens in favor of carriers, warehousemen, mechanics,
suppliers, repairmen, materialmen and landlords and other Liens imposed by law
or granted in the ordinary course of business for amounts not overdue or being
diligently contested in good faith by appropriate proceedings;


 


(i)            Liens incurred or deposits made in the ordinary course of
business in connection with worker’s compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure performance of
tenders, statutory obligations,


 


66

















 


bids, leases or other similar obligations (other than
for borrowed money) entered into in the ordinary course of business or to
secure obligations on surety and appeal bonds or performance bonds;


 


(j)            judgment Liens in existence for less than 45 days after
the entry thereof or with respect to which execution has been stayed or the
payment of which is covered in full (subject to a customary deductible) by
insurance maintained with reputable insurance companies and which do not
otherwise result in an Event of Default under Section 8.1.6;


 


(k)           easements, rights-of-way, zoning restrictions, restrictive
covenants, minor defects or irregularities in title and other similar
encumbrances not interfering in any material respect with the value or use of
the property to which such Lien is attached;


 


(l)            Liens for Taxes not at the time delinquent or thereafter
payable without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books;


 


(m)          Liens resulting from operation of law with respect to any
judgments, awards or orders to the extent that such judgments, awards or orders
do not cause or constitute a Default under this Agreement; provided that
if any such Liens are on Collateral, such Liens are being diligently contested
in good faith by appropriate proceedings;


 


(n)           Liens in the form of licenses, leases or subleases granted
or created by the Borrower or any Subsidiary, which licenses, leases or
subleases do not interfere, individually or in the aggregate, in any material
respect with the business of the Borrower or such Subsidiary or individually or
in the aggregate materially impair the use (for its intended purpose) or the
value of the property subject thereto;


 


(o)           Liens on fixtures or personal property held by or granted
to landlords pursuant to leases to the extent that such Liens are not yet due
and payable; and


 


(p)           other Liens securing obligations in an aggregate amount
not to exceed at any time outstanding (x) $5,000,000 minus (y) the
amount of Indebtedness incurred under clause (m) of Section 7.2.2
that is secured by Liens granted pursuant to clause (b) of this Section 7.2.3
at such time.


 


SECTION 7.2.4. 
Financial Condition and Operations.  The Borrower will not permit any of the
events set forth below to occur:


 


(a)           The Borrower will not permit the Leverage Ratio as of the
last day of any Fiscal Quarter to exceed 2.50 to 1.00.


 


(b)           The Borrower will not permit Minimum Liquidity to be less
than $5,000,000 at any time.


 


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SECTION 7.2.5. 
Investments.  The Borrower
will not, and will not permit any of its Subsidiaries to, purchase, make,
incur, assume or permit to exist any Investment in any other Person, except:


 


(a)           Investments existing on the Closing Date and identified in
Item 7.2.5(a) of the Disclosure Schedule;


 


(b)           Cash Equivalent Investments;


 


(c)           Investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;


 


(d)           Investments by the Borrower and any Subsidiary of the
Borrower constituting Capital Expenditures on behalf of the Borrower or such
Subsidiary;


 


(e)           Investments by way of contributions to capital or
purchases of Capital Securities (i) by the Borrower in any Subsidiaries or
by any Subsidiary in other Subsidiaries; provided that the aggregate
amount of intercompany loans made pursuant to clause (f)(ii) of Section 7.2.2
and Investments under this clause made by the Borrower and Subsidiary
Guarantors in Subsidiaries that are not Subsidiary Guarantors shall not exceed
the amount set forth in clause (f)(ii) of Section 7.2.2
at any time, or (ii) by any Subsidiary in the Borrower;


 


(f)            Investments constituting (i) accounts receivable
arising, (ii) trade debt granted, or (iii) deposits made in
connection with the purchase price of goods or services, in each case in the
ordinary course of business;


 


(g)           Investments by way of the acquisition of Capital Securities
permitted pursuant to clause (b) of Section 7.2.9;


 


(h)           Investments consisting of any deferred portion of the
sales price received by the Borrower or any Subsidiary in connection with any
Disposition permitted under Section 7.2.10;


 


(i)            Investments resulting from loans to employees in the
ordinary course of business in an aggregate amount not to exceed $1,000,000 at
any one time outstanding;


 


(j)            Investments from receipt of non-cash consideration from a
Disposition made in compliance with Section 7.2.10;


 


(k)           Investments in Hedging Obligations incurred in compliance
with Section 7.2.2;


 


(l)            Contingent Liabilities to the extent permitted by Section 7.2.2;
and


 


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(m)          other Investments in an aggregate amount not to exceed (A) in
respect of any one Investment or series of related Investments made pursuant to
this clause (m), $5,000,000 or (B) in respect of all Investments
made pursuant to this clause (m), $25,000,000 (except that the
limitations imposed by this clause (m) shall not apply to the
Investment identified on Item 7.2.5(m) of the Disclosure Schedule,
so long as the amount of such Investment does not increase beyond the amount
set forth in such Item);


 


provided that all
clauses of this Section 7.2.5 shall be subject to the following:


 


(x)            any Investment
which when made complies with the requirements of the definition of the term “Cash
Equivalent Investment” may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements; and


 


(y)           no Investment
otherwise permitted by clauses (e)(i) (to the extent such
Investment constitutes an Investment by an Obligor in a Foreign Subsidiary), (g) or
(m) shall be permitted to be made if any Default has occurred and is
then continuing or would result therefrom.


 


SECTION 7.2.6. 
Restricted Payments, etc. 
The Borrower will not, and will not permit any of its Subsidiaries to,
declare or make a Restricted Payment, or make any deposit for any Restricted
Payment, other than:


 


(a)           Restricted Payments made by Subsidiaries to the Borrower
or wholly-owned Subsidiaries;


 


(b)           Restricted Payments made by the Borrower to Parent (i) pursuant
to the Tax Sharing Agreement; provided that the amount of such
Restricted Payment shall not exceed the amount of income taxes that the
Borrower would have been liable for on a stand alone basis or a consolidated
income tax return with its Subsidiaries (reduced by any Taxes directly paid by
the Borrower or any of its Subsidiaries) and (ii) to pay franchise taxes
and other overhead expenses of Parent in an amount not to exceed an aggregate
of $1,000,000 in any Fiscal Year;


 


(c)           repurchases of Capital Securities from former employees,
directors and officers of Parent and its Subsidiaries in an amount not to
exceed $1,000,000 in any Fiscal Year in the aggregate; provided  further
that, to the extent the amount of repurchases permitted to be made in any
Fiscal Year pursuant to this clause (c) exceeds the aggregate amount of
repurchases actually made by the Borrower and its Subsidiaries during such
Fiscal Year, the excess amount may be carried forward to (but only to) the next
succeeding Fiscal Year, and any such amount carried forward to a succeeding
Fiscal Year shall be deemed to be used following the Borrower and its
Subsidiaries using the amount of repurchases permitted by such proviso in such
succeeding Fiscal Year, without giving effect to such carry-forward;


 


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(d)           non-cash repurchases of Capital Securities deemed to occur
upon exercise of stock options to the extent such Capital Securities represents
a portion of the exercise price of such options;


 


(e)           Restricted Payments made by the Borrower to Parent in the
form of a distribution of the property identified on Item 7.2.6(e) of
the Disclosure Schedule;


 


(f)            Restricted Payments made by the Borrower to Parent after
the Closing Date on or no earlier than three Business Days prior to any
interest payment date with respect to the Existing Parent Notes in an amount
not to exceed the interest due on the then outstanding Existing Parent Notes on
such interest payment date, so long as Parent uses such Restricted Payments to
pay such interest on such interest payment date; provided that (A) the
interest expense on (and principal amount of) the Existing Parent Notes have
not increased since the Closing Date and (B) and the interest payment
dates relating thereto have not changed since the Closing Date;


 


(g)           so long as no Default has occurred and is continuing or would
result therefrom, Restricted Payments made by Borrower to Parent after the
Closing Date, so long as such Restricted Payments are used to simultaneously
fund redemptions, repayments, prepayments, repurchases or acquisitions for
value of Existing Parent Notes; provided that the aggregate amount of
all Restricted Payments made pursuant to this clause (g) may not
exceed $12,000,000;


 


(h)           so long as no Default has occurred and is continuing or
would result therefrom, Restricted Payments to the extent necessary to effect a
refinancing of Existing Parent Notes with Indebtedness incurred pursuant to clause
(b) or clause (m) of Section 7.2.2; provided
that the maturity and Average Life of such Indebtedness may not be earlier or
shorter than that of the First Lien Notes issued on the Closing Date and the
terms thereof must be, taken as a whole, no less favorable to the Borrower and
its Subsidiaries than those of the First Lien Notes issued on the Closing Date;
and


 


(i)            so long as no Default has occurred and is continuing or
would result therefrom, other Restricted Payments in an aggregate amount for
all Restricted Payments pursuant to this clause (g) not to exceed
$5,000,000.


 


SECTION 7.2.7. 
[Reserved]


 


SECTION 7.2.8. 
Issuance of Capital Securities. 
The Borrower will not, and will not permit any of its Subsidiaries to,
issue any Capital Securities (whether for value or otherwise) to any Person
other than (a) in the case of Subsidiaries, to the Borrower or another
wholly owned Subsidiary or (b) in the case of the Borrower, to Parent, so
long as, in each case, such Capital Securities are pledged and delivered to the
Administrative Agent pursuant to a Loan Document (to the extent required by Section 7.1.8).


 


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SECTION 7.2.9. 
Consolidation, Merger, Permitted Acquisitions, etc.  The Borrower will not, and will not permit
any of its Subsidiaries to, liquidate or dissolve, consolidate with, or merge
into or with, any other Person, or purchase or otherwise acquire all or substantially
all of the assets of any Person (or any division thereof), except


 


(a)           any Subsidiary may liquidate or dissolve voluntarily into,
and may merge with and into, the Borrower or any other Subsidiary (provided
that a Guarantor may only liquidate or dissolve into, or merge with and into,
the Borrower or another Guarantor), and the assets or Capital Securities of any
Subsidiary may be purchased or otherwise acquired by the Borrower or any other
Subsidiary (provided that the assets or Capital Securities of any
Guarantor may only be purchased or otherwise acquired by the Borrower or
another Guarantor); provided that in no event shall any Pledged
Subsidiary consolidate with or merge with and into any Subsidiary other than
another Pledged Subsidiary unless after giving effect thereto, the
Administrative Agent shall have a perfected pledge of, and security interest in
and to, at least the same percentage of the issued and outstanding interests of
Capital Securities (on a fully diluted basis) of the surviving Person as the
Administrative Agent had immediately prior to such merger or consolidation in
form and substance satisfactory to the Administrative Agent and its counsel,
pursuant to such documentation and opinions as shall be reasonably necessary in
the opinion of the Administrative Agent to create, perfect or maintain the
collateral position of the Secured Parties therein; and


 


(b)           so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its Subsidiaries
may consummate one or more Permitted Acquisitions at any time; provided
that the aggregate purchase price (including in such purchase price the
assumption of Indebtedness and excluding consideration to the extent consisting
of Capital Securities (other than Disqualified Capital Securities) of Parent)
and all fees and expenses payable by Borrower or any of its Subsidiaries in
connection therewith for all such Permitted Acquisitions at or prior to such
time does not exceed an amount equal to (x) in respect of any one
Permitted Acquisition or series of related Permitted Acquisitions, $25,000,000
or (y) in respect of all Permitted Acquisitions since the Closing Date,
$125,000,000 in the aggregate and (ii) in the case of a Permitted
Acquisition of Capital Securities, such Permitted Acquisition shall result in
the acquisition of a wholly owned U.S. Subsidiary (by merger, stock purchase or
purchase of assets).


 


SECTION 7.2.10. 
Permitted Dispositions. 
The Borrower will not, and will not permit any of its Subsidiaries to,
Dispose of any of the Borrower’s or such Subsidiaries’ assets (including
accounts receivable and Capital Securities of Subsidiaries) to any Person in
one transaction or series of transactions unless such Disposition is:


 


(a)           inventory or obsolete, damaged, worn out, surplus or
outdated property Disposed of in the ordinary course of its business;


 


(b)           pursuant to Section 7.2.9;


 


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(c)           (i) for Fair Market Value and the consideration
received consists of no less than 75% cash and (ii) the Net Disposition
Proceeds from such Disposition are applied pursuant to Sections 3.1.1
and 3.1.2; provided that in no event may (A) any one
Disposition or series of related Dispositions made pursuant to this clause (c) Dispose
of assets with a Fair Market Value in excess of $10,000,000 or (B) the
aggregate Fair Market Value of all assets Disposed of pursuant to this clause
(c) exceed $30,000,000 in the aggregate;


 


(d)           from one Obligor (other than Parent) to another Obligor
(other than Parent); provided that any property subject to such
Disposition shall be transferred subject to the Liens of the Collateral
Documents;


 


(e)           Dispositions of automated ice-bagging and palletizing
equipment acquired following the Closing Date in connection with the leaseback
of such machines within ninety (90) days of delivery thereof;


 


(f)            a Disposition of Cash Equivalent Investments;


 


(g)           a Disposition to the extent such Disposition is necessary
to effect a transaction undertaken pursuant to Section 7.2.2, 7.2.3,
7.2.5 or 7.2.6;


 


(h)           the grant in the ordinary course of business of any
non-exclusive license of patents, trademarks, registrations thereof and other
similar intellectual property;


 


(i)            any release of intangible claims or rights in connection
with the loss or settlement of a bona fide lawsuit, dispute or other
controversy;


 


(j)            an Asset Swap;


 


(k)           leases and subleases of assets or properties in the
ordinary course of business not interfering in any material respect with the business
of the Borrower or any of its Subsidiaries; and


 


(l)            a sale or discount, in each case without recourse, of
accounts receivable arising in the ordinary course of business, but only in
connection with the compromise or collection thereof.


 


SECTION 7.2.11. 
Modification of Certain Agreements.  The Borrower will not, and will not permit
any of its Subsidiaries to, consent to any amendment, supplement, waiver or
other modification of, or enter into any forbearance from exercising any rights
with respect to the terms or provisions contained in, the Organic Documents of
the Borrower or any of its Subsidiaries if the result thereof would have an
adverse effect on the Lenders (it being agreed that any modification of any
such Organic Document would not have an adverse effect on the Lenders if such
modification is made to effectuate a transaction otherwise permitted by the
terms of any Loan Document).


 


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SECTION 7.2.12. 
Transactions with Affiliates. 
The Borrower will not, and will not permit any of its Subsidiaries to,
enter into or cause or permit to exist any arrangement, transaction or contract
(including for the purchase, lease or exchange of property or the rendering of
services) with any of its Affiliates, unless such arrangement, transaction or
contract is on fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than it could obtain in an arm’s-length transaction with a
Person that is not an Affiliate, other than:


 


(a)           transactions among the Borrower and its U.S. Subsidiaries;


 


(b)           loans and advances to employees in the ordinary course of
business;


 


(c)           any Restricted Payment pursuant to Section 7.2.6
or any Investment pursuant to clause (e), (g), (i) or
(m) of Section 7.2.5;


 


(d)           issuance and sale of Capital Securities of the Borrower
permitted by Section 7.2.8;


 


(e)           any issuance of securities, or other payments, awards or
grants in cash, Capital Securities or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock ownership plans, in the
ordinary course of business and approved in good faith by the Board of
Directors of the Borrower and Parent;


 


(f)            reasonable fees and compensation paid to, or indemnity
provided for the benefit of, officers, directors, employees or consultants of
the Borrower or any Subsidiary as determined in good faith by the Borrower’s
Board of Directors;


 


(g)           any transaction with a Subsidiary or joint venture or
similar entity which would constitute a transaction with an Affiliate solely
because the Borrower or a Subsidiary owns an equity interest in or otherwise
controls such Subsidiary, joint venture or similar entity; and


 


(h)           in connection with the consummation of the Transactions.


 


SECTION 7.2.13.  Restrictive Agreements, Etc.  The Borrower will not, and will not permit
any of its Subsidiaries to, enter into any agreement prohibiting:


 


(a)           the creation or assumption of any Lien upon its
properties, revenues or assets, whether now owned or hereafter acquired;


 


(b)           the ability of any Obligor to amend or otherwise modify
any Loan Document or Intercreditor Agreement; or


 


(c)           the ability of any Subsidiary to make any payments,
directly or indirectly, to the Borrower, including by way of dividends,
advances, repayments of loans, reimbursements of management and other
intercompany charges, expenses and accruals or other returns on investments.


 


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The
foregoing prohibitions shall not apply to (i) any Loan Document or
Intercreditor Agreement, (ii) in the case of clause (a), (A) any
agreement governing any Indebtedness permitted by clause (e) of Section 7.2.2
as to the assets financed with the proceeds of such Indebtedness, (B) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest, (C) customary provisions restricting assignment of any
agreement entered into in the ordinary course of business, (D) any
restrictions by the holder of a Lien permitted by Section 7.2.3 on
the transfer of the asset or assets subject thereto, (E) customary
restrictions and conditions contained in any agreement relating to the sale of
any asset permitted under Section 7.2.10 pending the consummation
of such sale, (F) any agreement in effect at the time any Subsidiary becomes
a Subsidiary of the Borrower, so long as such agreement was not entered into in
contemplation of such person becoming a Subsidiary of the Borrower, (G) restrictions
on cash or other deposits or net worth requirements imposed by customers under
contracts entered into in the ordinary course of business, (H) in the case
of any joint venture (including any Subsidiary which is a joint venture) which
is not an Obligor, restrictions in such person’s organization or governing
documents or pursuant to any joint venture agreement or stockholders agreement
solely to the extent of the Capital Securities of or assets held in the subject
joint venture or other entity or (i) any agreement in effect on the
Closing Date and set forth on Item 7.2.13 of the Disclosure Schedule, (iii) in
the case of clauses (a) and (c), any agreement of a Foreign
Subsidiary governing the Indebtedness permitted by clause (f)(ii) of
Section 7.2.2, (iv) the Intercreditor Agreements and (v) agreements
pursuant to which the New Notes were issued (in the case of this clause (v),
as in effect on the Closing Date or as amended, modified, replaced, restated or
otherwise changed in a manner that is not, taken as a whole, materially less
favorable to the Lenders).


 


SECTION 7.2.14. 
Sale and Leaseback.  The
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly enter into any agreement or arrangement providing for the sale or
transfer by it of any property (now owned or hereafter acquired) to a Person
and the subsequent lease or rental of such property or other similar property
from such Person unless such transaction complies with Sections 7.2.2
and 7.2.10.


 


SECTION 7.2.15. 
Fiscal Year.  The Borrower
will not, and will not permit any of its Subsidiaries to, modify or make any
other change to its Fiscal Year.


 


SECTION 7.2.16. 
[Reserved].


 


SECTION 7.2.17. 
Prepayments and Amendments of Other IndebtednessSECTION 7.2.18.  .  The
Borrower will not, and will not permit any of its Subsidiaries to, (A) make
any redemptions, repayments, prepayments, repurchases or acquisitions for value
of any Indebtedness incurred or outstanding pursuant to (x) clause (b) of
Section 7.2.2 or (y) to the extent secured by Liens granted
pursuant to clause (b) of Section 7.2.3, clause (m) of
Section 7.2.2, in each case if (i) the consideration used in
all such redemptions, repayments, prepayments, repurchases or acquisitions for
value exceeds $10,000,000 in the aggregate or (ii) either immediately
prior to or immediately after giving effect thereto, the Borrower then has less
than $25,000,000 in Minimum Liquidity or (B) amend or modify, or permit
the amendment or modification of, any provision of any document governing any
Indebtedness referred to in the immediately preceding clause (A) in
any manner that is adverse in any material respect to the interests of the
Lenders.


 


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ARTICLE VIII

EVENTS OF DEFAULT


 


SECTION 8.1.                 Listing of Events of Default.  Each of the following events or occurrences
described in this Article shall constitute an “Event of Default”.


 


SECTION 8.1.1. 
Non-Payment of Obligations. 
The Borrower shall default in the payment or prepayment when due of:


 


(a)           any principal of any Loan; or


 


(b)           any fee described in Article III, any interest
on any Loan or any other monetary Obligation to the extent invoiced, and such
default shall continue unremedied for a period of five days after such amount
was due.


 


SECTION 8.1.2. 
Breach of Warranty.  Any
representation or warranty of any Obligor made or deemed to be made in any Loan
Document (including any certificates delivered pursuant to Article V)
is or shall be incorrect when made or deemed to have been made in any material
respect.


 


SECTION 8.1.3. 
Non-Performance of Certain Covenants and Obligations.  The Borrower shall default in the due
performance or observance of any of its obligations under (A) clauses (d) and
(e) of Section 7.1.1, Section 7.1.7 or Section 7.2
or (B) Section 7.1.1 (other than clauses (d) and (e) thereof)
or Section 7.1.9 and, in the case of this clause (B) of
this Section 8.1.3, such default shall continue unremedied for a
period of 5 days after the earlier to occur of (i) notice thereof given to
the Borrower by the Administrative Agent or any Lender or (ii) the date on
which any Obligor has knowledge of such default.


 


SECTION 8.1.4. 
Non-Performance of Other Covenants and Obligations.  Any Obligor shall default in the due
performance and observance of any other agreement contained in any Loan
Document executed by it, and such default shall continue unremedied for a
period of 30 days after the earlier to occur of (i) notice thereof given
to the Borrower by the Administrative Agent or any Lender or (ii) the date
on which any Obligor has knowledge of such default.


 


SECTION 8.1.5. 
Default on Other Indebtedness. 
(A) A default shall occur in the payment of any amount when due
(subject to any applicable grace period), whether by acceleration or otherwise,
of any principal or stated amount of, or interest or fees on, any Indebtedness
(other than Indebtedness described in Section 8.1.1) of the
Borrower or any of its Subsidiaries or any other Obligor having a principal or
stated amount, individually or in the aggregate, in excess of $7,500,000, or (B) a
default shall occur in the performance or observance of any obligation or
condition with respect to such Indebtedness if the effect of such default is to
accelerate the maturity of any such Indebtedness or (C) any such default
shall continue unremedied for any applicable period of time sufficient to
permit the holder or holders of such Indebtedness, or any trustee or agent for
such holders, to cause or declare such Indebtedness to become due and payable


 


75
















 


or to require such Indebtedness to be prepaid,
redeemed, purchased or defeased, or require an offer to purchase or defease
such Indebtedness to be made, prior to its expressed maturity.


 


SECTION 8.1.6.  Judgments.  Any final or non-appealable judgment or order
for the payment of money individually or in the aggregate in excess of
$7,500,000 (exclusive of any amounts fully covered by insurance (less
any applicable deductible) and as to which the insurer has not disputed its
responsibility to cover such judgment or order) shall be rendered against the
Borrower or any of its Subsidiaries or any other Obligor and such judgment
shall not have been vacated or discharged or stayed or bonded pending appeal
within 60 days after the entry thereof or enforcement proceedings shall have
been commenced by any creditor upon such judgment or order.


 


SECTION 8.1.7.  Pension Plans.  Any of the following events shall occur with
respect to any Pension Plan:


 


(a)         the institution
of any steps by the Borrower, any member of its Controlled Group or any other
Person to terminate a Pension Plan if, as a result of such termination, the
Borrower or any of its Subsidiaries could reasonably be expected to be required
to make a contribution to such Pension Plan, or could reasonably expect to
incur a liability or obligation to such Pension Plan, in either case in excess
of $7,500,000; or


 


(b)        a contribution
failure occurs with respect to any Pension Plan sufficient to give rise to a
Lien under Section 302(f) of ERISA on the assets of the Borrower or
any of its Subsidiaries.


 


SECTION 8.1.8.  Change in Control.  Any Change in Control shall occur.


 


SECTION 8.1.9.  Bankruptcy, Insolvency, Etc.  Parent, the Borrower or any Significant
Subsidiary shall:


 


(a)         become
insolvent or generally fail to pay, or admit in writing its inability or
unwillingness generally to pay, its debts as they become due;


 


(b)        apply for,
consent to, or acquiesce in the appointment of a trustee, receiver,
sequestrator or other custodian for any substantial part of the property of any
thereof, or make a general assignment for the benefit of creditors;


 


(c)         in the absence
of such application, consent or acquiesce to, or permit or suffer to exist, the
appointment of a trustee, receiver, sequestrator or other custodian for a substantial
part of the property of any thereof, and such trustee, receiver, sequestrator
or other custodian shall not be discharged within 60 days;


 


(d)        permit or
suffer to exist the commencement of any bankruptcy, reorganization, debt
arrangement or other case or proceeding under any bankruptcy or insolvency law
or any dissolution, winding up or liquidation proceeding, in respect thereof,
and, if any such case or proceeding is not commenced by Parent, the Borrower or
any Significant


 


76

















 


Subsidiary, such case or
proceeding shall be consented to or acquiesced in by Parent, the Borrower or
such Significant Subsidiary, as the case may be, or shall result in the entry
of an order for relief or shall remain for 60 days undismissed; or


 


(e)         take any action
authorizing, or in furtherance of, any of the foregoing.


 


SECTION 8.1.10.  Impairment of Security, Etc.  Any Loan Document or any Lien granted
thereunder shall (except in accordance with its terms), in whole or in part,
terminate, cease to be effective or cease to be the legally valid, binding and
enforceable obligation of any Obligor party thereto; any Obligor or any other
party shall, directly or indirectly, contest in any manner such effectiveness,
validity, binding nature or enforceability; or, except as permitted under any
Loan Document, any Lien securing any Obligation shall, in whole or in part,
cease to be a perfected first priority Lien (subject to (including with respect
to priority) Liens otherwise permitted hereunder).


 


SECTION 8.1.11.  DOJ Investigation.  The occurrence of any plea, non-appealable
judgment, settlement or fine in excess of $15,000,000 in connection with the
DOJ Investigation.


 


SECTION 8.1.12.  Intercreditor Agreements.  Any Intercreditor Agreement or any provision
thereof shall cease to be in full force and effect other than in accordance
with its terms.


 


SECTION 8.2.                 Action if
Bankruptcy.  If any
Event of Default described in clauses (a) through (d) of
Section 8.1.9 with respect to the Borrower shall occur, the
Commitments (if not theretofore terminated) shall automatically terminate and
the outstanding principal amount of all outstanding Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand to any Person.


 


SECTION 8.3.                 Action if Other
Event of Default.  If any
Event of Default (other than any Event of Default described in Section 8.1.9
with respect to the Borrower) shall occur for any reason, whether voluntary or
involuntary, and be continuing, the Administrative Agent, upon the direction of
the Required Lenders, shall by notice to the Borrower declare all or any
portion of the outstanding principal amount of the Loans and other Obligations
to be due and payable and/or the Commitments (if not theretofore terminated) to
be terminated, whereupon the full unpaid amount of such Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.


 


ARTICLE IX

THE ADMINISTRATIVE AGENT


 


SECTION 9.1.                 Actions.  Each Lender hereby appoints JPMorgan as its
Administrative Agent under and for purposes of each Loan Document.  Each Lender authorizes the Administrative
Agent to act on behalf of such Lender under each Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Administrative Agent (with respect to which the Administrative
Agent agrees that it will comply, 


 


77

















 


except as otherwise provided in this Section or
as otherwise advised by counsel in order to avoid contravention of applicable
law), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof, together with such powers as may be reasonably incidental
thereto.  Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) the
Administrative Agent, pro rata according to
such Lender’s proportionate Total Exposure Amount, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any
kind or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent in any way relating to or arising
out of any Loan Document (including reasonable attorneys’ fees), and as to
which the Administrative Agent is not reimbursed by the Borrower; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, claims, costs or expenses which are
determined by a court of competent jurisdiction in a final proceeding to have
resulted from the Administrative Agent’s gross negligence or willful
misconduct.  The Administrative Agent
shall not be required to take any action under any Loan Document, or to
prosecute or defend any suit in respect of any Loan Document, unless it is
indemnified hereunder to its satisfaction. 
If any indemnity in favor of the Administrative Agent shall be or
become, in the Administrative Agent’s determination, inadequate, the
Administrative Agent may call for additional indemnification from the Lenders
and cease to do the acts indemnified against hereunder until such additional
indemnity is given.  The Administrative
Agent is authorized to release collateral that is permitted to be sold or
released pursuant to the terms of the Loan Documents.


 


SECTION 9.2.                 Funding
Reliance, Etc.  Unless the
Administrative Agent shall have been notified in writing by any Lender by 3:00 p.m.
on the Business Day prior to a Borrowing that such Lender will not make
available the amount which would constitute its Percentage of such Borrowing on
the date specified therefor, the Administrative Agent may assume that such
Lender has made such amount available to the Administrative Agent and, in
reliance upon such assumption, may (in its sole and absolute discretion) make available
to the Borrower a corresponding amount. 
If and to the extent that such Lender shall not have made such amount
available to the Administrative Agent, such Lender and the Borrower severally
agree to repay the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date the
Administrative Agent made such amount available to the Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing (in the case of the
Borrower) and (in the case of a Lender), at the Federal Funds Rate (for the
first two Business Days after which such amount has not been repaid), and
thereafter at the interest rate applicable to Loans comprising such Borrowing.


 


SECTION 9.3.                 Exculpation.  Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall be liable to any Secured
Party for any action taken or omitted to be taken by it under any Loan Document,
or in connection therewith, except for its own willful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or therein,
nor for the effectiveness, enforceability, validity or due execution of any
Loan Document, nor for the creation, perfection or priority of any Liens
purported to be created by any of the Loan Documents, or the validity,
genuineness, enforceability, existence, value or sufficiency 


 


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of any collateral security, nor to make any inquiry
respecting the performance by any Obligor of its Obligations.  Any such inquiry which may be made by the
Administrative Agent shall not obligate it to make any further inquiry or to take
any action.  The Administrative Agent
shall be entitled to rely upon advice of counsel concerning legal matters and
upon any notice, consent, certificate, statement or writing which the
Administrative Agent believes to be genuine and to have been presented by a
proper Person.


 


SECTION 9.4.                 Successor.  The Administrative Agent may resign as such
at any time upon at least 30 days’ prior notice to the Borrower and all
Lenders.  If the Administrative Agent at
any time shall resign, the Required Lenders may, with the consent of the
Borrower (not to be unreasonably withheld or delayed) so long as no Default
then exists, appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder.  If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment, within 30
days after the retiring Administrative Agent’s giving notice of resignation,
then the retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be one of the Lenders or a
commercial banking institution organized under the laws of the United States
(or any State thereof) or a United States branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least
$250,000,000; provided that if such retiring Administrative Agent is
unable to find a commercial banking institution which is willing to accept such
appointment and which meets the qualifications set forth above, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall assume and perform all of the duties of the
Administrative Agent hereunder until such time, if any, as the Required Lenders
appoint a successor as provided for above. 
Upon the acceptance of any appointment as Administrative Agent hereunder
by a successor Administrative Agent, such successor Administrative Agent shall
be entitled to receive from the retiring Administrative Agent such documents of
transfer and assignment as such successor Administrative Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. 
After any retiring Administrative Agent’s resignation hereunder as the
Administrative Agent, the provisions of this Article shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Administrative Agent under the Loan Documents, and Sections 10.3 and 10.4
shall continue to inure to its benefit.


 


SECTION 9.5.                 Loans by
Administrative Agent.  The
Administrative Agent shall have the same rights and powers with respect to (a) the
Credit Extensions made by it or any of its Affiliates, and (b) the Notes
held by it or any of its Affiliates as any other Lender and may exercise the
same as if it were not the Administrative Agent. The Administrative Agent and
its Affiliates may accept deposits from, lend money to, and generally engage in
any kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if it were not the Administrative Agent hereunder.


 


SECTION 9.6.                 Credit
Decisions.  Each Lender
acknowledges that it has, independently of the Administrative Agent and each
other Lender, and based on such Lender’s review of the financial information of
the Borrower, the Loan Documents (the terms and provisions of 


 


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which being satisfactory to such Lender) and such
other documents, information and investigations as such Lender has deemed
appropriate, made its own credit decision to extend its Commitments.  Each Lender also acknowledges that it will,
independently of the Administrative Agent and each other Lender, and based on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under the Loan Documents.


 


SECTION 9.7.                 Copies, Etc.  The Administrative Agent shall use
commercially reasonable efforts to give prompt notice to each Lender of each
notice or request required or permitted to be given to the Administrative Agent
by the Borrower pursuant to the terms of the Loan Documents and the
Intercreditor Agreements (unless concurrently delivered to the Lenders by the
Borrower).  The Administrative Agent will
use commercially reasonable efforts to distribute to each Lender each document
or instrument received for its account and copies of all other communications
received by the Administrative Agent from the Borrower for distribution to the
Lenders by the Administrative Agent in accordance with the terms of the Loan
Documents and the Intercreditor Agreements. 
Each Lender agrees that no liability shall attach to the Administrative
Agent for any failure to comply with this Section 9.7.


 


SECTION 9.8.                 Reliance by
Administrative Agent.  The
Administrative Agent shall be entitled to rely upon any certification, notice
or other communication (including any thereof by telephone, telecopy, telegram
or cable) believed by it to be genuine and correct and to have been signed or
sent by or on behalf of the proper Person, and upon advice and statements of
legal counsel, independent accountants and other experts selected by the
Administrative Agent.  As to any matters
not expressly provided for by the Loan Documents, the Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
thereunder in accordance with instructions given by the Required Lenders or all
of the Lenders as is required in such circumstance, and such instructions of
such Lenders and any action taken or failure to act pursuant thereto shall be
binding on all Secured Parties.  For
purposes of applying amounts in accordance with this Section, the
Administrative Agent shall be entitled to rely upon any Secured Party that has
entered into Cash Management Obligations for a determination (which such
Secured Party agrees to provide or cause to be provided upon request of the
Administrative Agent) of the outstanding Obligations owed to such Secured Party
under such Cash Management Obligations. 
Unless it has actual knowledge evidenced by way of written notice from
any such Secured Party or the Borrower to the contrary, the Administrative
Agent, in acting in such capacity under the Loan Documents, shall be entitled
to assume that no Cash Management Obligations in respect thereof are in
existence or outstanding between any Secured Party and any Obligor.


 


SECTION 9.9.                 Defaults.  The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received a written notice from a Lender or the
Borrower specifying such Default and stating that such notice is a “Notice of
Default”.  In the event that the
Administrative Agent receives such a notice of the occurrence of a Default, the
Administrative Agent shall give prompt notice thereof to the Lenders.  The Administrative Agent shall (subject to Section 10.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided that unless and until the 


 


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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
as it shall deem advisable in the best interest of the Secured Parties except
to the extent that this Agreement expressly requires that such action be taken,
or not be taken, only with the consent or upon the authorization of the
Required Lenders or all Lenders.


 


SECTION 9.10.               [Reserved].


 


SECTION 9.11.               Withholding
Taxes.  To the extent required by any
applicable law, the Administrative Agent may withhold from any payment to any
Lender or Swing Line Lender an amount equivalent to any applicable withholding
Tax.  Without limiting or expanding the
provisions of Section 4.6(a) or (c), each Lender or
Swing Line Lender shall, and does hereby, indemnify the Administrative Agent
against, and shall make payable in respect thereof within 30 days after demand
therefor, any and all Taxes and any and all related losses, claims, liabilities
and expenses (including fees, charges and disbursements of any counsel for the
Administrative Agent) incurred by or asserted against the Administrative Agent
by the Internal Revenue Service or any other Governmental Authority as a result
of the failure of the Administrative Agent to properly withhold Tax from
amounts paid to or for the account of any Lender or Swing Line Lender for any
reason (including, without limitation, because the appropriate form was not delivered
or not property executed, or because such Lender or Swing Line Lender failed to
notify the Administrative Agent of a change in circumstance that rendered the
exemption from, or reduction of withholding Tax ineffective).  A certificate as to the amount of such
payment or liability delivered to any Lender or Swing Line Lender by the
Administrative Agent shall be conclusive absent manifest error.  Each Lender or Swing Line Lender hereby
authorizes the Administrative Agent to set off and apply any and all amounts at
any time owing to such Lender or Swing Line Lender under this Agreement or any
other Loan Document against any amount due the Administrative Agent under this Section 9.11.  The agreements in this Section 9.11
shall survive the resignation and/or replacement of the Administrative Agent,
any assignment of rights by, or the replacement of, a Lender or Swing Line
Lender, the termination of the Commitments and the repayment, satisfaction or
discharge of all other Obligations.


 


SECTION 9.12.               Intercreditor
Agreements. 
Notwithstanding anything herein to the contrary, each Lender
acknowledges that the Lien and security interest granted to the Administrative
Agent pursuant to the Collateral Documents and the exercise of any right or
remedy by the Administrative Agent thereunder are subject to the provisions of
the Intercreditor Agreements.


 


ARTICLE X

MISCELLANEOUS PROVISIONS


 


SECTION 10.1.               Waivers, Amendments, Etc.  The provisions of each Loan
Document (other than Cash Management Obligations and the Fee Letters (which may
be amended or otherwise modified in accordance with the terms thereof)) may
from time to time be amended, modified or waived, if such amendment,
modification or waiver is in writing and consented to by 


 


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the Borrower and the Required Lenders; provided,
however, that no other such amendment, modification or waiver shall:


 


(a)         modify this Section or
change or waive any provision of Section 4.8 requiring pro  rata
treatment of the Lenders, or the sharing of payments by all Lenders, in each
case without the consent of all Lenders;


 


(b)        increase the
aggregate amount of any Credit Extensions required to be made by a Lender
pursuant to its Commitments, extend the final Revolving Loan Commitment Termination
Date or extend the final Stated Maturity Date for any Lender’s Loan, in each
case without the consent of such Lender (it being agreed, however, that any
vote to rescind any acceleration made pursuant to Sections 8.2 and 8.3
of amounts owing with respect to the Loans and other Obligations shall only
require the vote of the Required Lenders);


 


(c)         reduce the
principal amount of or rate of interest on any Lender’s Loan, reduce any fees
described in Article III payable to any Lender or extend the date on
which interest or fees are payable in respect of such Lender’s Loans, in each
case without the consent of such Lender;


 


(d)        reduce the
percentage set forth in the definition of “Required Lenders” or modify any
requirement hereunder that any particular action be taken by all Lenders
without the consent of all Lenders;


 


(e)         have the effect
of increasing the threshold amount set forth in Section 8.1.11
above $30,000,000 without the consent of all Lenders;


 


(f)         except as
otherwise expressly provided in a Loan Document, release (i) the Borrower
from its Obligations under the Loan Documents or any Guarantor from its
obligations under a Guaranty or (ii) all or substantially all of the
collateral under the Loan Documents, in each case without the consent of all Lenders;
or


 


(g)        affect
adversely the interests, rights or obligations of the Administrative Agent (in
its capacity as the Administrative Agent) or the Swing Line Lender (in its
capacity as Swing Line Lender), unless consented to by the Administrative Agent
or the Swing Line Lender, as the case may be.


 


Any
Intercreditor Agreement may be amended, modified or waived by the
Administrative Agent at the direction of the Required Lenders, and the consent
of the Borrower or any Guarantor shall be required only to the extent required
in such Intercreditor Agreement.


 


No
failure or delay on the part of any Credit Party in exercising any power or
right under any Loan Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right.  No notice to or demand on any Obligor in any
case shall entitle it to any notice 


 


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or
demand in similar or other circumstances. 
No waiver or approval by any Credit Party under any Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions.  No waiver or
approval hereunder shall require any similar or dissimilar waiver or approval
thereafter to be granted hereunder.


 


SECTION 10.2.               Notices; Time.  All notices and other communications provided
under each Loan Document shall be in writing (including by facsimile) and
addressed, delivered or transmitted, if to the Borrower, the Administrative
Agent or a Lender to the applicable Person at its address or facsimile number
set forth on Schedule II hereto or set forth in a Lender Assignment
Agreement, or at such other address or facsimile number as may be designated by
such party in a notice to the other parties. 
Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received; any notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the
transmitter.  Electronic mail and
Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 7.1.1, and to distribute Loan Documents for execution by
the parties thereto, and may not be used for any other purpose, except with the
consent of the Administrative Agent. The parties hereto agree that delivery of an
executed counterpart of a signature page to this Agreement and each other
Loan Document by facsimile shall be effective as delivery of an original
executed counterpart of this Agreement or such other Loan Document.  Unless otherwise indicated, all references to
the time of a day in a Loan Document shall refer to New York time.


 


SECTION 10.3.               Payment of
Costs and Expenses.  The
Borrower agrees to pay on demand all reasonable expenses of the Administrative
Agent and Macquarie Bank Limited (including the reasonable fees and
out-of-pocket expenses of Cahill, Gordon & Reindel LLP and Kirkland &
Ellis LLP, their respective counsel, and of local counsel, if any, who may be
retained by or on behalf of the Administrative Agent) in connection with:


 


(a)         the negotiation,
preparation, execution and delivery of each Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements or other
modifications to any Loan Document as may from time to time hereafter be
required, whether or not the transactions contemplated hereby are consummated;
and


 


(b)        the filing or
recording of any Loan Document (including the Filing Statements) and all
amendments, supplements, amendments and restatements and other modifications to
any thereof, searches made following the Closing Date in jurisdictions where
Filing Statements (or other documents evidencing Liens in favor of the Secured
Parties) have been recorded and any and all other documents or instruments of
further assurance required to be filed or recorded by the terms of any Loan
Document; and


 


(c)         the preparation
and review of the form of any document or instrument relevant to any Loan
Document.


 


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The
Borrower further agrees to pay, and to save each Credit Party harmless from all
liability for, any stamp or other taxes which may be payable in connection with
the execution or delivery of each Loan Document, the Credit Extensions or the
issuance of any Notes.  The Borrower also
agrees to reimburse each Lender and the Administrative Agent upon demand for
all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and
legal expenses of one counsel (and any local counsel) to each of the
Administrative Agent and Macquarie Bank Limited and one or, if and to the
extent necessary as a result of conflicts of interest, more counsel to the
other Lenders) incurred by any Lender and the Administrative Agent in
connection with (x) the negotiation of any restructuring or “work-out”
with the Borrower, whether or not consummated, of any Obligations, (y) the
enforcement of any Obligations or (z) the exercise of any right or remedy
under any Loan Document.


 


SECTION 10.4.               Indemnification.  In consideration of the execution and
delivery of this Agreement by each Credit Party, the Borrower shall indemnify,
exonerate, defend and hold each Credit Party and each of their respective
officers, directors, employees and agents and in the case of an Approved Fund,
its trustees and investment advisors (collectively, the “Indemnified Parties”)
free and harmless from and against any and all actions, causes of action,
suits, losses, costs, liabilities and damages (whether or not based on strict
liability and including any special, indirect or consequential damages), and
expenses of any kind or nature whatsoever (irrespective of whether any such
Indemnified Party is a party to the action for which indemnification hereunder
is sought), including reasonable attorneys’ and consultants’ fees and
disbursements, whether incurred in connection with actions between or among the
parties hereto or the parties hereto and third parties (regardless of whether
caused in whole or in part by the simple (but not gross) negligence of any
indemnified party) (collectively, the “Indemnified Liabilities”),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to:


 


(a)         any transaction
financed or to be financed in whole or in part, directly or indirectly, with
the proceeds of any Credit Extension, including all Indemnified Liabilities
arising in connection with the Transaction;


 


(b)        the entering
into and performance of any Loan Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower as the result of
any determination by the Required Lenders pursuant to Article V not
to fund any Credit Extension; provided that any such action is resolved
in favor of such Indemnified Party);


 


(c)         any
investigation, litigation or proceeding related to any acquisition or proposed
acquisition by any Obligor or any Subsidiary thereof of all or any portion of
the Capital Securities or assets of any Person, whether or not an Indemnified
Party is party thereto;


 


(d)        the actual or
alleged presence, Release or threat of Release of any Hazardous Material at,
on, under, from or affecting any property now or formerly owned, operated or
leased by any Obligor or any Subsidiary thereof; or


 


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(e)         each Lender’s
Environmental Liability (the indemnification herein shall survive repayment of
the Obligations and any transfer of the property of any Obligor or its
Subsidiaries by foreclosure or by a deed in lieu of foreclosure for any Lender’s
Environmental Liability, regardless of whether caused by, or within the control
of, such Obligor or such Subsidiary);


 


IN
ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT
OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNIFIED PARTY,
except for Indemnified Liabilities arising for the account of a particular
Indemnified Party to the extent of the relevant Indemnified Party’s material
breach of a Loan Document, gross negligence or willful misconduct as determined
in a final and nonappealable judgment by a court of competent jurisdiction.  Each Obligor and its successors and assigns
hereby waive, release and agree not to make any claim or bring any cost
recovery action against, any Indemnified Party under any Environmental Law,
including CERCLA or any state equivalent, or any similar law now existing or
hereafter enacted.  It is expressly
understood and agreed that to the extent that any Indemnified Party is strictly
liable under any Environmental Laws, each Obligor’s obligation to such
Indemnified Party under this indemnity shall likewise be without regard to
fault on the part of any Obligor with respect to the violation or condition
which results in liability of an Indemnified Party; provided that this
waiver and release shall not apply to the extent that the Indemnified
Liabilities arise for the account of a particular Indemnified Party by reason
of the relevant Indemnified Party’s material breach of a Loan Document, gross
negligence or willful misconduct as determined in a final and nonappealable
judgment by a court of competent jurisdiction. 
If and to the extent that the foregoing undertaking may be unenforceable
for any reason, each Obligor agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.


 


SECTION 10.5.               Survival.  The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and
the obligations of the Lenders under Sections 9.1 and 10.16,
shall in each case survive any assignment from one Lender to another (in the
case of Sections 10.3 and 10.4) and the occurrence of the
Termination Date.  The representations
and warranties made by each Obligor in each Loan Document shall survive the
execution and delivery of such Loan Document.


 


SECTION 10.6.               Severability.  Any provision of any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to such provision and
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in any
other jurisdiction.


 


SECTION 10.7.               Headings.  The various headings of each Loan Document
are inserted for convenience only and shall not affect the meaning or interpretation
of such Loan Document or any provisions thereof.


 


SECTION 10.8.               Execution in
Counterparts, Effectiveness, Etc.  This Agreement may be executed by the parties
hereto in several counterparts, each of which shall be an original


 


85
















 


and all of which shall constitute together but one
and the same agreement.  This Agreement
shall become effective when counterparts hereof executed on behalf of the
Borrower, the Administrative Agent and each Lender (or notice thereof
satisfactory to the Administrative Agent) shall have been received by the
Administrative Agent; provided, however, that the provisions of
this Agreement shall not become operative until the satisfaction of the
conditions in Section 5.1 shall have occurred.


 


SECTION 10.9.             Governing Law;
Entire Agreement.  EACH LOAN
DOCUMENT (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) WILL EACH
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).  THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES.  THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES.  The Loan
Documents constitute the entire understanding among the parties hereto with
respect to the subject matter thereof and supersede any prior agreements,
written or oral, with respect thereto.


 


SECTION 10.10.           Successors and
Assigns.  This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns (in the case of assigns (but not successors)
in the case of Lenders, subject to Section 10.11); provided
that the Borrower may not assign or transfer its rights or obligations
hereunder without the consent of all Lenders.


 


SECTION 10.11.           Sale and
Transfer of Credit Extensions; Participations in Credit Extensions.  Each Lender may assign, or sell
participations in, its Loans and Commitments to one or more other Persons in
accordance with the terms set forth below:


 


(a)        Any Lender may,
with the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed), assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments and the Loans at the time owing to it); provided
that:


 


(i)            except in the
case of (A) an assignment of the entire remaining amount of the assigning
Lender’s Commitments and the Loans at the time owing to it or (B) an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitments (which for this
purpose includes Loans outstanding thereunder) or principal outstanding balance
of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Lender Assignment Agreement with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$1,000,000 (or, if less, the entire remaining amount of such Lender’s
Commitment or Loans of the relevant tranche; provided that such minimum
amount shall 


 


86

















 


be aggregated for two or
more simultaneous assignments by or to two or more Related Funds), unless the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consent (each such consent not to be
unreasonably withheld or delayed);


 


(ii)           [Reserved]; and


 


(iii)          the parties to
each assignment shall (A) electronically execute and deliver to the
Administrative Agent a Lender Assignment Agreement via an electronic settlement
system acceptable to the Administrative Agent) or (B) manually execute and
deliver to the Administrative Agent a Lender Assignment Agreement, together, in
the case of this clause (iii)(B), with a processing and recordation fee
of $3,500 and if the Eligible Assignee is not a Lender, administrative details
information with respect to such Eligible Assignee and applicable tax forms.


 


(b)        Subject to
acceptance and recording thereof by the Administrative Agent pursuant to clause
(c), from and after the effective date specified in each Lender Assignment
Agreement, (i) the Eligible Assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Lender Assignment
Agreement, have the rights and obligations of a Lender under this Agreement,
and (ii) the assigning Lender thereunder shall, to the extent of the
interest assigned by such Lender Assignment Agreement, subject to Section 10.5,
be released from its obligations under this Agreement (and, in the case of a
Lender Assignment Agreement 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 any provisions of this
Agreement which by their terms survive the termination of this Agreement).  Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with clause (a) above
and this clause (b) 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 clause (d) below. 
If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment thresholds specified in this Section), the
Borrower shall be deemed to have given its consent ten Business Days after the
date notice thereof has been delivered by the assigning Lender (through the
Administrative Agent or ClearPar, LLC) unless such consent is expressly refused
by the Borrower prior to such tenth Business Day.


 


(c)         The
Administrative Agent shall record each assignment made in accordance with this Section in
the Register pursuant to clause (a) of Section 2.7.  The Register shall be available for
inspection by the Borrower and any Lender (in the case of such Lender, such
right of inspection shall be with respect to its own interest only and not that
of any other Lender), at any reasonable time and from time to time upon
reasonable prior notice.


 


(d)        Any Lender
(other than a Designated Lender) may, without the consent of, or notice to, the
Borrower or the Administrative Agent, and any Designated Lender may, with the
prior consent of each of the Borrower and Administrative Agent, sell participations



 


87

















 


to one or more banks or
other entities (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 Commitments 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 other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver with respect to any of the items set forth in clauses (a) through
(d) or (f) of Section 10.1, in each case
except as otherwise specifically provided in a Loan Document.  Subject to clause (e) below, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections
4.3, 4.4, 4.5, 4.6, 7.1.1,  10.3 and 10.4
(subject to the requirements and limitations therein, including providing
documentation pursuant to Section 4.6(e)) to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to clause (b).  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 4.9
as though it were a Lender, provided such Participant agrees to be
subject to Section 4.8 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 on which it enters the name and
address of each Participant and the principal and interest amount of each
Participant’s interest in the Loans held by it (the “Participant Register”).  The entries in the Participant Register shall
be conclusive, and such Lender shall treat each person whose name is recorded
in the Participant Register as the owner of the participation in question for
all purposes of this Agreement, notwithstanding notice to the contrary.


 


(e)         A Participant
shall not be entitled to receive any greater payment under Sections 4.3,
4.4, 4.5, 4.6, 10.3 and 10.4 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 (not to be
unreasonably withheld or delayed).


 


(f)         Any Lender may
at any time, without the consent of any other Person, 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 of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.


 


(g)         In the event
that any Lender becomes a Designated Lender, then the Borrower and the Swing
Line Lender shall each have the right, but not the obligation, upon notice to
such Revolving Loan Lender and the Administrative Agent, to replace such Revolving



 


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Loan Lender with a financial
institution (a “Replacement Lender”) acceptable to the Borrower and the
Administrative Agent (such consents not to be unreasonably withheld or delayed;
provided that no such consent shall be required if the Replacement
Lender is an existing Revolving Loan Lender), and upon any Lender becomes a
Designated Lender, such Revolving Loan Lender hereby agrees to transfer and
assign (in accordance with this Section all of its Commitments and other
rights and obligations under the Loan Documents to such Replacement Lender; provided
that (i) such assignment shall be without recourse, representation or
warranty (other than that such Lender owns the Commitments, Loans and Notes
being assigned, free and clear of any Liens) and (ii) the purchase price
paid by the Replacement Lender shall be in the amount of such Revolving Loan
Lender’s Loans, together with all accrued and unpaid interest and fees in
respect thereof, plus all other amounts (other than the amounts (if any)
demanded and unreimbursed under Sections 4.2 through (and including) 4.6,
which shall be paid by the Borrower), owing to such Revolving Loan Lender
hereunder.  Upon any such termination or
assignment, such Revolving Loan Lender shall cease to be a party hereto but
shall continue to be entitled to the benefits of, and subject to the
obligations of, any provisions of this Agreement which by their terms survive
the termination of this Agreement.  The
Borrower’s and Swing Line Lender’s respective right to replace a Designated
Lender pursuant to this Section is, and shall be, in addition to, and not
in lieu of, all other rights and remedies available to the Borrower and the
Swing Line Lender against such Designated Lender under applicable law.


 


(h)        Notwithstanding
anything else contained in this Section, no Lender may assign its Loans or
Commitments during the Primary Syndication other than (i) assignments by
the Administrative Agent and its Affiliates or (ii) assignments by a
Lender to its Affiliate or Approved Fund.


 


(i)          Notwithstanding
anything to the contrary contained herein, any Lender (a “Granting Lender”)
may grant to a special purpose funding vehicle (an “SPC”), identified as
such in writing from time to time by the Granting Lender to the Administrative
Agent and the Borrower, the option to provide to the Borrower all or any part
of any Loan that such Granting Lender would otherwise be obligated to make to
the Borrower pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to make any Loan and (ii) if
an SPC elects not to exercise such option or otherwise fails to provide all or
any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof.  The making
of a Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Loan were made by such Granting
Lender.  Each party hereto hereby agrees
that no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement (all liability for which shall remain with the Granting
Lender).  In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one
day after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any other
person in instituting against, such SPC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings under


 


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the laws of the United
States or any State thereof.  In
addition, notwithstanding anything to the contrary contained in this clause,
any SPC may (i) with notice to, but without the prior written consent of,
the Borrower or the Administrative Agent and without paying any processing fee
therefor, assign all or a portion of its interests in any Loans to the Granting
Lender or to any financial institutions (consented to by the Borrower and the
Administrative Agent) providing liquidity and/or credit support to or for the
account of such SPC to support the funding or maintenance of Loans and (ii) disclose
on a confidential basis any non-public information relating to its Loans to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC. 
This Section may not be amended without the written consent of the
SPC.  The Borrower acknowledges and
agrees, subject to the next sentence, that, to the fullest extent permitted
under applicable law, each SPC, for purposes of Sections 4.3, 4.4,
4.5, 4.6, 4.8, 4.9, 10.3 and 10.4,
shall be considered a Lender.  The
Borrower shall not be required to pay any amount under Sections 4.3, 4.4,
4.5, 4.6, 10.3 and 10.4 that is greater than the
amount which it would have been required to pay had no grant been made by a
Granting Lender to an SPC unless the grant was made with the Borrower’s prior
written consent (not to be unreasonably withheld or delayed).


 


SECTION 10.12.           Other
Transactions.  Nothing
contained herein shall preclude the Administrative Agent or any other Lender
from engaging in any transaction, in addition to those contemplated by the Loan
Documents, with the Borrower or any of its Affiliates in which the Borrower or
such Affiliate is not restricted hereby from engaging with any other Person.


 


SECTION 10.13.           Forum Selection
and Consent to Jurisdiction.  ANY LITIGATION BASED HEREON, OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH, ANY LOAN DOCUMENT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, THE LENDERS OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH MAY BE BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW
YORK LOCATED IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT’S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR NOTICES SPECIFIED IN
SECTION 10.2.  THE BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.  TO THE EXTENT THAT
THE BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER 


 


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THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, THE BORROWER HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THE LOAN
DOCUMENTS.


 


SECTION 10.14.           Waiver of Jury
Trial.  THE ADMINISTRATIVE AGENT, EACH
LENDER AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, EACH LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, SUCH LENDER OR THE BORROWER IN CONNECTION THEREWITH.  THE BORROWER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND EACH
LENDER ENTERING INTO THE LOAN DOCUMENTS.


 


SECTION 10.15.           Limitation on
Interest.  The
Borrower, the Administrative Agent and the Lenders intend to contract in strict
compliance with applicable usury laws from time to time in effect.  In furtherance thereof such Persons stipulate
and agree that none of the terms and provisions contained in the Loan Documents
shall ever be construed to create a contract to pay, for the use, forbearance
or detention of money, interest in excess of the maximum amount of interest
permitted to be charged by applicable law from time to time in effect.  Neither the Borrower nor any present or
future Guarantors, endorsers or other Persons hereafter becoming liable for
payment of any Obligation shall ever be liable for unearned interest thereon or
shall ever be required to pay interest thereon in excess of the maximum amount
that may be lawfully contracted for, charged or received under applicable law
from time to time in effect, and the provisions of this Section shall
control over all other provisions of the Loan Documents that may be in conflict
or apparent conflict herewith.  The
Administrative Agent and the Lenders expressly disavow any intention to
contract for, charge or collect excessive unearned interest or finance charges
in the event the maturity of any Obligation is accelerated.  If (a) the maturity of any Obligation is
accelerated for any reason, (b) any Obligation is prepaid and as a result
any amounts held to constitute interest are determined to be in excess of the
legal maximum, or (c) the Administrative Agent or a Lender shall otherwise
collect moneys that are determined to constitute interest that would otherwise
increase the interest on any or all of the Obligations to an amount in excess
of that permitted to be charged by applicable law then in effect, then all sums
determined to constitute interest in excess of such legal limit shall, without
penalty, be promptly applied to reduce the then outstanding principal of the
related Obligations or, at the option of the Administrative Agent or such
Lender, as applicable, promptly returned to the Borrower upon such
determination.  In determining whether or
not the interest paid or payable, under any specific circumstance, exceeds the
maximum amount permitted under applicable law, the Administrative Agent and the
Lenders and the Borrower shall to the greatest extent permitted under
applicable law, (i) characterize 


 


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any non-principal payment as an expense, fee or
premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, prorate, allocate and spread the
total amount of interest throughout the entire contemplated term of instruments
evidencing the Obligations in accordance with the amounts outstanding from time
to time thereunder and the maximum legal rate of interest from time to time in
effect under applicable law in order to lawfully contract for, charge, or
receive the maximum amount of interest permitted under applicable law.  In the event applicable law provides for an
interest ceiling under Chapter 303 of the Texas Finance Code (the “Texas
Finance Code”), as amended, for that day, the ceiling shall be the “weekly
ceiling” as defined in the Texas Finance Code; provided that if any applicable
law permits greater interest, the law permitting the greatest interest shall
apply.  As used in this section the term “applicable
law” means the laws of the State of Texas or the laws of the United States,
whichever allow the greater interest, as such laws now exist or may be changed
or amended or come into effect in the future.


 


SECTION 10.16.           Confidentiality.  The Lenders and the Administrative Agent
shall hold all non-public information obtained pursuant to or in connection
with this Agreement about Parent or any of its Subsidiaries in accordance with
their customary procedures for handling confidential information of this
nature, but may make disclosure to any of their examiners, Affiliates, their
and their Affiliate’s directors, officers, employees, agents, trustees and
representatives, outside auditors, counsel and other professional advisors or
to any direct or indirect contractual counterparty in swap agreements or such
contractual counterparty’s professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section) in connection with this Agreement
or as reasonably required by any potential bona
fide pledgee under clause (f) of Section 10.11, transferee,
participant or assignee, or in connection with the exercise of remedies under a
Loan Document, or as requested by any governmental agency or representative
thereof or pursuant to legal process or to any quasi-regulatory authority
(including the National Association of Insurance Commissioners); provided
that


 


(a)        unless
specifically prohibited by applicable law or court order, each Lender and the
Administrative Agent shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of such Lender or its
Affiliate by such governmental agency) for disclosure of any such non-public
information prior to or within a reasonable time after disclosure of such
information;


 


(b)        prior to any
such disclosure pursuant to this Section, each Lender shall require any such bona
fide pledgee under clause (f) of Section 10.11,
transferee, participant and assignee receiving a disclosure of non-public information
to agree in writing (i)  to be bound by this Section; and (ii) to
require such Person to require any other Person to whom such Person discloses
such non-public information to be similarly bound by this Section; and


 


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(c)         except as may
be required by an order of a court of competent jurisdiction and to the extent
set forth therein, no Lender shall be obligated or required to return any
materials furnished by Parent, the Borrower or any Subsidiary.


 


SECTION 10.17.           USA PATRIOT Act
Notice.  Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby notify
the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot
Act”), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender or the Administrative
Agent, as applicable, to identify the Borrower in accordance with the Patriot
Act.


 


SECTION 10.18.           Effect of
Amendment and Restatement of the Existing Credit Agreement.  On the Closing Date, the Existing Credit
Agreement shall be amended and restated in its entirety. The parties hereto
acknowledge and agree that (a) this Agreement and the other Loan
Documents, whether executed and delivered in connection herewith or otherwise,
do not constitute a novation or termination of the “Obligations” (as defined in
the Existing Credit Agreement) under the Existing Credit Agreement as in effect
prior to the Closing Date and which remain outstanding, (b) the “Obligations”
are in all respects continuing (as amended and restated hereby and which are
hereinafter subject to the terms herein) and (c) the Liens and security
interests as granted under the applicable Loan Documents securing payment of
such “Obligations” are in all respects continuing and in full force and effect
(as assigned to the Administrative Agent for the benefit of the Secured Parties
pursuant to this Agreement and the other Loan Documents).


 


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


 


	
   

  	
   

  	
  REDDY
  ICE CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Steven J. Janusek

  
	
   

  	
   

  	
   

  	
  Name:
  Steven J. Janusek

  
	
   

  	
   

  	
   

  	
  Title:
  Chief Financial and Accounting Officer

  



 


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  JPMORGAN
  CHASE BANK, N.A.,

  
	
   

  	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Martha Pruitt Mathews

  
	
   

  	
   

  	
   

  	
  Name:
  Martha Pruitt Mathews

  
	
   

  	
   

  	
   

  	
  Title:
  Senior Vice President

  



 


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  MACQUARIE
  BANK LIMITED,

  
	
   

  	
   

  	
  as
  a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  David Markell

  
	
   

  	
   

  	
   

  	
  Name:
  David Markell

  
	
   

  	
   

  	
   

  	
  Title:
  Executive Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Melanie Lincoln

  
	
   

  	
   

  	
   

  	
  Name:
  Melanie Lincoln

  
	
   

  	
   

  	
   

  	
  Title:
  Senior Manager

  



 


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