exv10w1






Exhibit 10.1




EXECUTION VERSION




 





Published CUSIP Number: 88642EAA6




THIRD AMENDED AND RESTATED

CREDIT AGREEMENT



dated as of January 27, 2011


among


TIDEWATER INC.


and


ITS DOMESTIC SUBSIDIARIES,

collectively, as the Borrowers,


BANK OF AMERICA, N.A.,

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


the other Lenders party hereto,


JPMORGAN CHASE BANK, N.A., WELLS FARGO BANK, N.A. and

DNB NOR BANK ASA,

as Co-Syndication Agents,


BBVA COMPASS,

as Documentation Agent,


JPMORGAN CHASE BANK, N.A., WELLS FARGO SECURITIES, LLC,

DNB NOR MARKETS, INC. and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as


Co-Lead Arrangers


and


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as Sole Book Manager



 








 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01. Defined Terms
	 	 	1	 
	1.02. Other Interpretive Provisions
	 	 	24	 
	1.03. Accounting Terms
	 	 	24	 
	1.04. Rounding
	 	 	25	 
	1.05. Times of Day
	 	 	25	 
	1.06. Letter of Credit Amounts
	 	 	25	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	25	 
	2.01. The Loans
	 	 	25	 
	2.02. Borrowings, Conversions and Continuations of Loans
	 	 	26	 
	2.03. Letters of Credit
	 	 	27	 
	2.04. Swing Line Loans
	 	 	36	 
	2.05. Prepayments
	 	 	39	 
	2.06. Termination or Reduction of Commitments
	 	 	40	 
	2.07. Repayment of Loans
	 	 	40	 
	2.08. Interest
	 	 	41	 
	2.09. Fees
	 	 	41	 
	2.10. Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate

	 	 	42	 
	
2.11. Evidence of Debt
	 	 	43	 
	2.12. Payments Generally; Administrative Agent’s Clawback
	 	 	44	 
	2.13. Sharing of Payments by Lenders
	 	 	46	 
	2.14. Appointment of Borrower Agent
	 	 	46	 
	2.15. Joint and Several Liability of the Borrowers
	 	 	47	 
	2.16. Increase in Commitments
	 	 	48	 
	2.17. Cash Collateral
	 	 	49	 
	2.18. Defaulting Lenders
	 	 	50	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	52	 
	3.01. Taxes
	 	 	52	 
	3.02. Illegality
	 	 	55	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	3.03. Inability to Determine Rates
	 	 	56	 
	3.04. Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	56	 
	3.05. Compensation for Losses
	 	 	58	 
	3.06. Mitigation Obligations; Replacement of Lenders
	 	 	58	 
	3.07. Survival
	 	 	59	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	59	 
	4.01. Conditions of Initial Credit Extension
	 	 	59	 
	4.02. Conditions to all Credit Extensions
	 	 	61	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	61	 
	5.01. Existence, Qualification and Power
	 	 	61	 
	5.02. Authorization; No Contravention
	 	 	62	 
	5.03. Governmental Authorization; Other Consents
	 	 	62	 
	5.04. Binding Effect
	 	 	62	 
	5.05. Financial Statements; No Material Adverse Effect
	 	 	62	 
	5.06. Litigation
	 	 	63	 
	5.07. No Default
	 	 	63	 
	5.08. Ownership of Property; Liens
	 	 	63	 
	5.09. Environmental Compliance
	 	 	63	 
	5.10. Taxes
	 	 	64	 
	5.11. ERISA Compliance
	 	 	64	 
	5.12. Subsidiaries; Equity Interests; Loan Parties
	 	 	65	 
	5.13. Margin Regulations; Investment Company Act
	 	 	66	 
	5.14. Disclosure
	 	 	66	 
	5.15. Compliance with Laws
	 	 	66	 
	5.16. Solvency
	 	 	66	 
	5.17. Use of Proceeds
	 	 	66	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	66	 
	6.01. Financial Statements
	 	 	66	 
	6.02. Certificates; Other Information
	 	 	67	 
	6.03. Notices
	 	 	69	 






ii









 




TABLE OF CONTENTS

(continued)






	 	 	 	 	 
	 	 	Page	 
	6.04. Payment of Obligations
	 	 	69	 
	6.05. Preservation of Existence, Etc
	 	 	69	 
	6.06. Maintenance of Properties
	 	 	69	 
	6.07. Maintenance of Insurance
	 	 	70	 
	6.08. Compliance with Laws
	 	 	70	 
	6.09. Books and Records
	 	 	70	 
	6.10. Inspection Rights
	 	 	70	 
	6.11. Use of Proceeds
	 	 	70	 
	6.12. Additional Borrowers or Guarantors
	 	 	71	 
	6.13. Compliance with Environmental Laws
	 	 	71	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	71	 
	7.01. Liens
	 	 	71	 
	7.02. Indebtedness of Subsidiaries
	 	 	73	 
	7.03. Investments
	 	 	74	 
	7.04. Fundamental Changes
	 	 	75	 
	7.05. Dispositions
	 	 	75	 
	7.06. Equity Interests
	 	 	76	 
	7.07. Change in Nature of Business
	 	 	76	 
	7.08. Transactions with Affiliates
	 	 	76	 
	7.09. Burdensome Agreements
	 	 	76	 
	7.10. Financial Covenants
	 	 	77	 
	7.11. Amendment, Etc. of Indebtedness
	 	 	77	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	77	 
	8.01. Events of Default
	 	 	77	 
	8.02. Remedies Upon Event of Default
	 	 	79	 
	8.03. Application of Funds
	 	 	80	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	81	 
	9.01. Appointment and Authority
	 	 	81	 
	9.02. Rights as a Lender
	 	 	81	 
	9.03. Exculpatory Provisions
	 	 	81	 






iii









 





TABLE OF CONTENTS

(continued)





	 	 	 	 	 
	 	 	Page	 
	9.04. Reliance by Administrative Agent
	 	 	82	 
	9.05. Delegation of Duties
	 	 	82	 
	9.06. Resignation of Administrative Agent
	 	 	82	 
	9.07. Non-Reliance on Administrative Agent and Other Lenders
	 	 	83	 
	9.08. No Other Duties, Etc
	 	 	84	 
	9.09. Administrative Agent May File Proofs of Claim
	 	 	84	 
	9.10. Guaranty Matters
	 	 	84	 
	ARTICLE X. MISCELLANENOUS
	 	 	85	 
	10.01. Amendments, Etc
	 	 	85	 
	10.02. Notices; Effectiveness; Electronic Communications
	 	 	86	 
	10.03. No Waiver; Cumulative Remedies; Enforcement
	 	 	88	 
	10.04. Expenses; Indemnity; Damage Waiver
	 	 	89	 
	10.05. Payments Set Aside
	 	 	91	 
	10.06. Successors and Assigns
	 	 	91	 
	10.07. Treatment of Certain Information; Confidentiality
	 	 	96	 
	10.08. Right of Setoff
	 	 	97	 
	10.09. Interest Rate Limitation
	 	 	97	 
	10.10. Counterparts; Integration; Effectiveness
	 	 	98	 
	10.11. Survival of Representations and Warranties
	 	 	98	 
	10.12. Severability
	 	 	98	 
	10.13. Replacement of Lenders
	 	 	98	 
	10.14. Governing Law; Jurisdiction; Etc
	 	 	99	 
	10.15. Waiver of Jury Trial
	 	 	100	 
	10.16. No Advisory or Fiduciary Responsibility
	 	 	100	 
	10.17. Electronic Execution of Assignments and Certain Other Documents
	 	 	101	 
	10.18. USA PATRIOT Act
	 	 	101	 
	10.19. Transitional Arrangements
	 	 	101	 






iv









 





SCHEDULES




	 	 	 
	Schedule 2.01

	 	Commitments and Applicable Percentages

	Schedule 5.06

	 	Litigation

	Schedule 5.09

	 	Environmental Compliance

	Schedule 5.11

	 	ERISA Matters

	Schedule 5.12

	 	Subsidiaries and Other Equity Investments; Loan Parties

	Schedule 7.01

	 	Existing Liens

	Schedule 7.02

	 	Existing Indebtedness

	Schedule 7.09

	 	Burdensome Agreements

	Schedule 10.02

	 	Administrative Agent’s Office, Certain Addresses for Notices

	 	 	 

	EXHIBITS
	 	 

	 	 	 

	Exhibit A

	 	Form of Loan Notice

	Exhibit B

	 	Form of Swing Line Loan Notice

	Exhibit C

	 	Form of Revolving Credit Note

	Exhibit D

	 	Form of Term Note

	Exhibit E

	 	Form of Compliance Certificate

	Exhibit F

	 	Form of Assignment and Assumption








 











 





THIRD AMENDED AND RESTATED CREDIT AGREEMENT




     This THIRD AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of
January 27, 2011, among TIDEWATER INC., a Delaware corporation (the “Company”), and its
Domestic Subsidiaries (as hereinafter defined) (together with the Company, collectively, the
“Borrowers” and each individually, a “Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and, individually, a “Lender”), BANK OF
AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, JPMORGAN CHASE BANK,
N.A., WELLS FARGO BANK, N.A. and DNB NOR BANK ASA, as Co-Syndication Agents, and COMPASS BANK, as
Documentation Agent.



RECITALS




     WHEREAS, pursuant to that certain Second Amended and Restated Revolving Credit Agreement dated
as of July 24, 2009 (as amended and in effect from time to time, the “Prior Credit
Agreement”), by and among the Borrowers, Bank of America, N.A., as administrative agent, and
the lenders party thereto (the “Existing Lenders”), subject to the terms and conditions
contained therein, the Existing Lenders party thereto provided certain financial accommodations to
the Borrowers;



     WHEREAS, the Borrowers have requested that the Lenders and the Administrative Agent amend and
restate the Prior Credit Agreement in its entirety to, among other things:



     (a) continue the Revolving Credit Commitments at $450,000,000;



     (b) provide for Term Loans to the Borrowers in the aggregate principal amount of $125,000,000;



     (c) convert the loans under the Prior Credit Agreement into Revolving Credit Loans hereunder;
and



     (d) make certain other changes to the terms and provisions of the Prior Credit Agreement;



     and the Administrative Agent and the Lenders are willing to so amend and restate the Prior
Credit Agreement on the terms and conditions set forth herein;



     NOW, THEREFORE, the Borrowers, the Lenders and the Administrative Agent agree that on the
Closing Date the Prior Credit Agreement is hereby amended and restated in its entirety as set forth
herein and shall remain in full force and effect only as set forth herein and in consideration of
the mutual covenants and agreements contained herein, the parties hereto covenant and agree as
follows:



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



 









 





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



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



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



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



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



     “Agreement” means this Credit Agreement.



     “Applicable Percentage” means, in each case subject to adjustment as provided in
Section 2.18, (a) in respect of the Term Facility, with respect to any Term Lender at any
time, the percentage (carried out to the ninth decimal place) of the Term Facility represented by
(i) at any time during the Availability Period in respect of such Facility, such Term Lender’s Term
Commitment at such time and (ii) thereafter, the principal amount of such Term Lender’s Term Loans
at such time, and (b) in respect of the Revolving Credit Facility, with respect to any Revolving
Credit Lender at any time, the percentage (carried out to the ninth decimal place) of the Revolving
Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment at such
time. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make
L/C Credit Extensions have been terminated pursuant to Section 8.02, or if the Commitments
have expired, then the Applicable Percentage of each Lender in respect of the applicable Facility
shall be determined based on the Applicable Percentage of such Lender in respect of such Facility
most recently in effect, giving effect to any subsequent assignments. The initial Applicable
Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender
on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes
a party hereto, as applicable.



     “Applicable Rate” means the applicable percentage per annum set forth below determined
by reference to the Consolidated Funded Indebtedness to Total Capitalization Ratio as set forth in
the most recent Compliance Certificate received by the Administrative Agent pursuant to Section
6.02(b):



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	Applicable Rate
	 	 	Consolidated	 	 	 	 	 	 
	 	 	Funded	 	 	 	 	 	 
	 	 	Indebtedness to	 	 	 	Eurodollar	 	 
	 	 	Total	 	Commitment	 	Rate/	 	 
	 	 	Capitalization	 	Fee/Ticking	 	Letters of	 	 
	Pricing Level	 	Ratio	 	Fee	 	Credit	 	Base Rate
	1
	 	< 25%
	 	0.15%
	 	1.50%
	 	0.50%
	2
	 	≥ 25% and < 35%
	 	0.20%
	 	1.75%
	 	0.75%
	3
	 	≥ 35% and < 45%
	 	0.25%
	 	2.00%
	 	1.00%
	4
	 	≥ 45%
	 	0.35%
	 	2.25%
	 	1.25%





Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Funded
Indebtedness to Total Capitalization Ratio shall become effective as of the first Business Day
immediately following the date a Compliance Certificate is delivered pursuant to Section
6.02(b); provided, however, that if a Compliance Certificate is not delivered
when due in accordance with such Section, then, upon the request of the Required Lenders, Pricing
Level 4 shall apply in respect of the Commitments, in each case as of the first Business Day after
the date on which such Compliance Certificate was required to have been delivered and in each case
shall remain in effect until the date on which such Compliance Certificate is delivered. Subject
to the preceding sentence, the Applicable Rate in effect from the Closing Date through the date of
delivery of a Compliance Certificate for the first full fiscal quarter ending after the Closing
Date shall be determined upon Pricing Level 1.




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



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



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



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



-3-









 





     “Arranger” means MLPF&S, in its capacity as co-lead arranger and sole book manager,
and each of Wells Fargo Securities, LLC, JPMorgan Chase Bank, N.A. and DnB NOR Markets, Inc., each
in its respective capacity as co-lead arranger.



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



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



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the
Company and its Subsidiaries for the fiscal year ended March 31, 2010, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Company and its Subsidiaries, including the notes thereto.



     “Availability Period” means (a) in respect of the Revolving Credit Facility, the
period from and including the Closing Date to the earliest of (i) the Maturity Date, (ii) the date
of termination of the Revolving Credit Commitments pursuant to Section 2.06, and (iii) the
date of termination of the commitment of each Revolving Credit Lender to make Revolving Credit
Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section
8.02 and (b) in respect of the Term Facility, the period from and including the Closing Date to
the earliest of (i) the date that falls 180 days after the Closing Date and (ii) the date of
termination of the commitments of the respective Term Lenders to make Term Loans pursuant to
Section 8.02.



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



     “Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a)
the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as
publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar
Rate plus 1.00%. The “prime rate” is a rate set by Bank of America based upon various factors
including Bank of America’s costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such prime rate announced by Bank of America shall take
effect at the opening of business on the day specified in the public announcement of such change.



-4-









 





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



     “Borrower” and “Borrowers” have the meanings specified in the introductory
paragraph hereto.



     “Borrower Agent” means the Company in its capacity as borrower agent pursuant to
Section 2.14.



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



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



     “Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by Law to remain closed and, if such
day relates to any Eurodollar Rate Loan, means any such day that is also a London Banking Day.



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



     “Cash Equivalents” means any of the following types of Investments, to the extent
owned by the Company or any of its Subsidiaries free and clear of all Liens (other than Liens
permitted hereunder):



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



     (b) time deposits with, or certificates of deposit or bankers’ acceptances of, any commercial
bank that (i) (A) is a Lender or (B) is organized under the laws of the United States of America,
any state thereof or the District of Columbia or is the principal banking subsidiary of a bank
holding company organized under the laws of the United States of America, any state thereof or the
District of Columbia, and is a member of the Federal Reserve System (or, in the case of a
Subsidiary organized under the laws of a jurisdiction other than the United States of America or
Canada, a foreign bank or foreign branch of a bank organized under the laws of the



-5-









 




United States of America that otherwise satisfies the requirements of this clause
(b)), (ii) has a short term deposit rating issued by Moody’s of P-2 or higher or by S&P of A-2
or higher and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with
maturities of not more than 180 days from the date of acquisition thereof;




     (c) commercial paper outstanding at any time issued by any Person organized under the laws of
any state of the United States of America and rated at least “Prime-2” (or the then equivalent
grade) by Moody’s or at least “A-2” (or the then equivalent grade) by S&P, in each case with
maturities of not more than 180 days from the date of acquisition thereof; and



     (d) Investments, classified in accordance with GAAP as current assets of the Company or any of
its Subsidiaries, in money market investment programs registered under the Investment Company Act
of 1940, which are administered by financial institutions that have a short term deposit rating
issued by Moody’s of P-2 or higher or by S&P of A-2 or higher, and 95% of the value of the
portfolios of which consist of Investments of the character, quality and maturity described in
clauses (a), (b) and (c) of this definition.



     “CERCLA” means the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended and in effect from time to time.



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



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



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



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



     (b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Company cease to be composed of individuals (i)
who were members of that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was approved by individuals
referred to in clause (i) above constituting at the time of such election or



-6-









 




nomination at least a majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body was approved by individuals
referred to in clauses (i) and (ii) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body;




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



     (d) the Company shall cease to own, either directly or indirectly, 100% of the Equity
Interests of any of its Domestic Subsidiaries, except as otherwise permitted hereunder.



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



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



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



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



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



     “Consolidated EBITDA” means, at any date of determination, an amount equal to
Consolidated Net Income of the Company and its Subsidiaries on a consolidated basis for the most
recently completed Measurement Period plus or minus, as applicable, the following
to the extent deducted or included, as the case may be, in calculating such Consolidated Net
Income, in each case of or by the Company and its Subsidiaries for such Measurement Period: (a)
Consolidated Interest Charges, (b) Federal, state, local and foreign income tax expense, net of any
Federal, state, local and foreign income tax credits, (c) depreciation and amortization expense,
(d) any after-tax effect of gains or losses (less all fees and expenses relating thereto)
attributable to asset dispositions other than in the ordinary course of business, and (e) any
non-recurring gains or losses which do not represent a cash item in such period or any future
period.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the
Company and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal
amount of all obligations, whether current or long-term, for borrowed money (including the
Outstanding Amount of all Loans hereunder) and all obligations evidenced by bonds, debentures,
notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c)
Attributable Indebtedness in respect of capital leases, and (d) all Indebtedness of the types
referred to in clauses (a) through (c) above of any partnership or joint venture
(other than a joint



-7-









 




venture that is itself a corporation or limited liability company) in which the Company or a
Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to the Company or such Subsidiary.




     “Consolidated Funded Indebtedness to Capitalization Ratio” means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of the last day of the fiscal
quarter ending on such date to (b) the sum of (i) Consolidated Funded Indebtedness as of the last
day of such fiscal quarter plus (ii) Consolidated Stockholders’ Equity as of the last day
of such fiscal quarter.



     “Consolidated Interest Charges” means, for any period, for the Company and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, amortized debt premium or
discount, amortized fees, charges and related expenses of the Company and its Subsidiaries in
connection with borrowed money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case to the extent treated as interest in accordance with GAAP,
and (b) the portion of rent expense under capital leases that is treated as interest in accordance
with GAAP.



     “Consolidated Interest Coverage Ratio” means, as of any date of determination, the
ratio of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such
date to (b) Consolidated Interest Charges for such period.



     “Consolidated Net Income” means, at any date of determination, the net income (or
loss) of the Company and its Subsidiaries determined in accordance with GAAP on a consolidated
basis (excluding extraordinary gains and extraordinary losses) for the most recently completed
Measurement Period.



     “Consolidated Stockholders’ Equity” means total stockholders’ equity of the Company,
on a consolidated basis, as shown on the Company’s most recently delivered financial statements
prepared in accordance with GAAP.



     “Consolidated Total Assets” means the total assets of the Company and its
Subsidiaries, on a consolidated basis, as shown on the Company’s financial statements prepared in
accordance with GAAP determined as of the last day of each fiscal quarter.



     “Consolidated Total Tangible Assets” means Consolidated Total Assets less intangible
assets as defined by GAAP.



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



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



-8-









 





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



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



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



     “Defaulting Lender” means, subject to Section 2.18(b), any Lender that, as
determined by the Administrative Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of its Loans or participations in respect of Letters of Credit or
Swing Line Loans, within three Business Days of the date required to be funded by it hereunder,
unless such obligation is the subject of a good faith dispute, (b) has notified the Company, the
Administrative Agent or any Lender that it does not intend to comply with its funding obligations
or has made a public statement to that effect with respect to its funding obligations hereunder or
under other agreements in which it commits to extend credit, (c) has failed, within three Business
Days after request by the Administrative Agent, to confirm in a manner satisfactory to the
Administrative Agent that it will comply with its funding obligations, or (d) has, or has a direct
or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief
Law, (ii) had a receiver, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business or a
custodian appointed for it, or (iii) taken any action in furtherance of, or indicated its consent
to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall
not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest
in that Lender or any direct or indirect parent company thereof by a Governmental Authority.



     “Default Rate” means (a) when used with respect to Obligations other than Letter of
Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate
applicable to Base Rate Loans plus (iii) 2% per annum; provided, however,
that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to
the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2%
per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable
Rate applicable to Letters of Credit plus 2% per annum.



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



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



-9-









 





     “Documentation Agent” means Compass Bank, in its capacity as documentation agent
hereunder, or any successor documentation agent.



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



     “Eligible Assignee” means any (a) Lender, an Affiliate of a Lender or an Approved
Fund, (b) commercial bank, finance company or financial institution organized under the Laws of the
United States, or any state thereof or the District of Columbia, and having total assets in excess
of $1,000,000,000; (c) savings and loan association or savings bank organized under the Laws of the
United States, or any state thereof or the District of Columbia, and having a net worth of at least
$1,000,000,000, calculated in accordance with GAAP; or (d) commercial bank or financial institution
organized under the Laws of any other country which is a member of the Organization for Economic
Cooperation and Development (the “OECD”), or a political subdivision of any such country,
and having total assets in excess of $1,000,000,000 (or the local currency equivalent thereof),
provided that such bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD.



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



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



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



     “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time, and any regulations promulgated thereunder.



-10-









 





     “ERISA Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the
Code).



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) the
withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which such entity was a “substantial employer” as defined in Section
4001(a)(2) of ERISA or a cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from
a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing
of a notice of intent to terminate, the treatment of a Pension Plan amendment as a termination
under Section 4041 or 4041A of ERISA; (e) the institution by the PBGC of proceedings to terminate a
Pension Plan; (f) any event or condition which constitutes grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan; (g) the
determination that any Pension Plan is considered an at-risk plan or a plan in endangered or
critical status within the meaning of Sections 430, 431 and 432 of the Code or Sections 303, 304
and 305 of ERISA; or (h) the imposition of any liability under Title IV of ERISA, other than for
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA
Affiliate.



     “Eurodollar Rate” means:




     (a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum
equal to (i) the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or such other commercially available source providing quotations of BBA LIBOR as
may be designated by the Administrative Agent from time to time) at approximately 11:00
a.m., London time, two London Banking Days prior to the commencement of such Interest
Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period or, (ii) if such rate is not available at such time
for any reason, the rate per annum determined by the Administrative Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Eurodollar Rate Loan being made, continued or
converted and with a term equivalent to such Interest Period would be offered by Bank of
America’s London Branch to major banks in the London interbank eurodollar market at their
request at approximately 11:00 a.m. (London time) two London Banking Days prior to the
commencement of such Interest Period; and




     (b) for any interest calculation with respect to a Base Rate Loan on any date, the rate
per annum equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two
London Banking Days prior to such date for Dollar deposits being delivered in the London
interbank market for a term of one month commencing that day or (ii) if such published rate
is not available at such time for any reason, the rate per annum determined by the
Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of
determination in same day funds in the approximate amount of the Base Rate Loan being made
or maintained and with a term equal to one month would



-11-









 






be offered by Bank of America’s London Branch to major banks in the London interbank
Eurodollar market at their request at the date and time of determination.



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



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



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



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



     “FASB ASC” means the Accounting Standards Codification of the Financial Accounting
Standards Board.



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



     “Fee Letter” means the letter agreement, dated as of January 21, 2011, among the
Company, the Administrative Agent and MLPF&S.



-12-









 





     “Foreign Government Scheme or Arrangement” has the meaning specified in Section
5.11.



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



     “Foreign Plan” has the meaning specified in Section 5.11.



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



     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect
to the L/C Issuer, such Defaulting Lender’s Applicable Percentage of the outstanding L/C
Obligations other than L/C Obligations as to which such Defaulting Lender’s participation
obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the
terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Applicable
Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance
with the terms hereof.



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



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



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



     “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of such Person, direct or indirect,
(i) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for
the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the
payment or performance of such Indebtedness or other obligation, (iii) to maintain working



-13-









 




capital, equity capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other obligation of the payment or
performance thereof or to protect such obligee against loss in respect thereof (in whole or in
part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such
Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by the guaranteeing Person in good faith. The term
“Guarantee” as a verb has a corresponding meaning.




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



     “Guaranty” means, collectively, any Guaranty made by any Guarantor in favor of the
Administrative Agent and the Lender, in form and substance reasonably satisfactory to the
Administrative Agent, together with each other guaranty and guaranty supplement delivered pursuant
to Section 6.12.



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



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



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



     (b) all obligations of such Person to pay the deferred purchase price of property or services
(other than trade accounts payable in the ordinary course of business and not past due for more
than 60 days after the date on which such trade account was created);



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



     (d) capital leases and Synthetic Lease Obligations; and



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




-14-











 





     For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of
any partnership or joint venture (other than a joint venture that is itself a corporation or
limited liability company) in which such Person is a general partner or a joint venturer, unless
such Indebtedness is expressly made non-recourse to such Person. The amount of any capital lease
or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable
Indebtedness in respect thereof as of such date.



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



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



     “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three, six or twelve months thereafter, as selected by the
Borrower Agent in its Loan Notice; provided that any twelve-month Interest Period shall be
consented to by all the Appropriate Lenders; and provided further that:



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



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



     (c) no Interest Period shall extend beyond the Maturity Date.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment
by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests of
another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of,
or purchase or other acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other Person and any
arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of transactions) of assets of another
Person that constitute a business unit or all or a substantial part of the business of, such
Person. For purposes of covenant compliance, the amount of any Investment shall be the amount
actually invested minus the amount, as of the date of determination, of any portion of such



-15-









 




Investment repaid to the investor in cash as a repayment of principal or a return on capital,
as the case may be, but without other adjustments for subsequent increases or decreases in the
value of such Investment. For the avoidance of doubt, the term “Investment” shall not include any
funds maintained in rabbi trusts established by the Company or any of its Subsidiaries for
supplemental executive retirement plans and early retirement incentive programs.




     “IRS” means the United States Internal Revenue Service.



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



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



     “Laws” means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, licenses, authorizations and permits of, and agreements with,
any Governmental Authority, in each case whether or not having the force of law.



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



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



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



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



     “L/C Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including without duplication all L/C Borrowings. For purposes of computing
the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.06. For all purposes of this Agreement,
if on any date of determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit
shall be deemed to be “outstanding” in the amount so remaining available to be drawn.



-16-









 





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



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



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



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



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



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



     “Letter of Credit Sublimit” means an amount equal to $75,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Revolving Credit Facility.



     “Lien” means, with respect to any asset, (a) any mortgage, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other), charge, or security interest or preferential
arrangement in, on or of such asset and (b) the interest of a vendor or lessor under any
conditional sale agreement, other title retention agreement, or any capital lease, relating to such
asset and any financing lease giving rise to Synthetic Lease Obligations.



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



     “Loan Documents” means, collectively, (a) this Agreement, (b) the Notes, (c) each
Guaranty, (d) the Fee Letter, (e) each Issuer Document and (f) each other agreement, certificate,
document or instrument delivered by any Loan Party in connection with any Loan Document, whether or
not specifically mentioned herein or therein.



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



     “Loan Parties” means, collectively, each Borrower and each Guarantor.



     “London Banking Day” means any day on which dealings in Dollar deposits are conducted
by and between banks in the London interbank eurodollar market.



     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect on, the operations, business, assets or condition (financial or otherwise) of the
Borrowers and their Subsidiaries taken as a whole; (b) a material adverse effect on the rights and
remedies of the Administrative Agent or any Lender under any Loan Document, or on the ability of
any



-17-









 




Loan Party to perform its obligations under any Loan Document to which it is a party; or (c) a
material adverse effect upon the legality, validity, binding effect or enforceability against any
Loan Party of any Loan Document to which it is a party.




     “Material Subsidiary” means a Subsidiary with revenues (on an unconsolidated basis)
for the fiscal year most recently ended in excess of 5% of the consolidated revenues generated by
the Company and its Subsidiaries for such fiscal year.



     “Maturity Date” means January 27, 2016; provided, however, that, if
such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.



     “Measurement Period” means, at any date of determination, the most recently completed
four fiscal quarters of the Company.



     “MLPF&S” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and its successors.



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



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



     “Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including any Borrower or any ERISA Affiliate) at least two of whom are not under common control,
as such a plan is described in Section 4064 of ERISA.



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



     “Note Purchase Agreement” or “Note Purchase Agreements” means (a) that certain
Note Purchase Agreement dated as of July 1, 2003 and executed by the Company and certain
Subsidiaries, and (b) that certain Note Purchase Agreement dated as of September 9, 2010 and
executed by the Company and certain Subsidiaries, each as amended and in effect from time to time.



     “Obligations” means all advances to, and debts, liabilities, obligations and covenants
of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter
of Credit, in each case whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising and including
interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the



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certificate or articles of formation or organization and operating agreement; and (c) with
respect to any partnership, joint venture, trust or other form of business entity, the partnership,
joint venture or other applicable agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in connection with its formation or
organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.




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



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



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



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



     “Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set forth
in, with respect to plan years ending prior to the effective date of the Pension Act, Section 412
of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act and, thereafter,
Section 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304 and 305 of ERISA.



     “Pension Plan” means any employee pension benefit plan (including a Multiple Employer
Plan or a Multiemployer Plan) that is maintained or is contributed to by any Borrower and any ERISA
Affiliate and is either covered by Title IV of ERISA or is subject to the minimum funding standards
under Section 412 of the Code.



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



     “Plan” means any employee benefit plan within the meaning of Section 3(3) of ERISA
(including a Pension Plan), maintained for employees of any Borrower or any ERISA Affiliate or any
such Plan to which any Borrower or any ERISA Affiliate is required to contribute on behalf of any
of its employees.



     “Platform” has the meaning specified in Section 6.02.



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     “Prior Credit Agreement” has the meaning specified in the Recitals hereto.



     “Priority Debt” has the meaning specified therefor in the applicable Note Purchase
Agreement.



     “Properties” means all real property owned, leased or otherwise used or occupied by
any Borrower or any Subsidiary, wherever located.



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



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



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



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



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



     “Required Lenders” means, as of any date of determination, Lenders holding more than
50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Credit
Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being
deemed “held” by such Revolving Credit Lender for purposes of this definition) and (b) aggregate
unused Revolving Credit Commitments and Term Commitments; provided that the unused
Revolving Credit Commitment and Term Commitment of, and the portion of the Total Outstandings held
or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination
of Required Lenders.



     “Required Revolving Lenders” means, as of any date of determination, Revolving Credit
Lenders holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the
aggregate amount of each Revolving Credit Lender’s risk participation and funded participation in
L/C Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for
purposes of this definition) and (b) aggregate unused Revolving Credit Commitments;
provided that the unused Revolving Credit Commitment of, and the portion of the Total
Revolving Credit Outstandings held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Lenders.



     “Required Term Lenders” means, as of any date of determination, Term Lenders holding
more than 50% of the Term Facility on such date; provided that the portion of the Term
Facility held by any Defaulting Lender shall be excluded for purposes of making a determination of
Required Term Lenders.



-20-









 





     “Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer or controller of a Loan Party. Any document delivered hereunder that is signed
by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by
all necessary corporate, partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.



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



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



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



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



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



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



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



     “Sale-Leaseback Arrangements” means any lease financings in an aggregate amount not to
exceed $200,000,000 for certain new and existing vessels after the Closing Date.



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



-21-









 





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



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



     “Subsidiary” of a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other governing body (other
than securities or interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise controlled, directly,
or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of the Company.



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



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



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



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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $20,000,000 and (b)
the Revolving Credit Facility. The Swing Line Sublimit is part of, and not in addition to, the
Revolving Credit Facility.



     “Syndication Agent” means each of Wells Fargo Bank, N.A., JPMorgan Chase Bank, N.A.
and DnB NOR Bank ASA, in its respective capacity as syndication agent hereunder, or any successor
syndication agent.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a
so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or
possession of property (including sale-leaseback transactions), in each case, creating obligations



-22-









 




that do not appear on the balance sheet of such Person but which, upon the application of any
Debtor Relief Laws to such Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).




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



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



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



     “Term Facility” means, at any time, (a) during the Availability Period in respect of
such Facility, the sum of (i) the aggregate amount of the Term Commitments at such time and (ii)
the aggregate principal amount of the Term Loans of all Term Lenders outstanding at such time and
(b) thereafter, the aggregate principal amount of the Term Loans of all Term Lenders outstanding at
such time.



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



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



     “Term Note” means a promissory note made by the Borrowers in favor of a Term Lender
evidencing Term Loans made by such Term Lender, substantially in the form of Exhibit D.



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



     “Total Outstandings” means, as of any date of determination, the aggregate Outstanding
Amount of all Loans and all L/C Obligations.



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



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



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



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     “Wholly Owned Domestic Subsidiary” means any Domestic Subsidiary of which all of the
Equity Interests are held by one or more Loan Parties.



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



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



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



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



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



-24-









 




Subsidiaries shall be deemed to be carried at 100% of the outstanding principal amount
thereof, and the effects of FASB ASC 825 on financial liabilities shall be disregarded.




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



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



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



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



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01. The Loans. (a) The Term Borrowing. Subject to the terms and conditions set
forth herein, each Term Lender severally agrees to make up to three (3) loans to the Borrowers from
time to time, on any Business Day during the Availability Period for the Term Facility, in an
aggregate amount not to exceed such Term Lender’s Term Commitment Percentage of the Term Facility.
Each Term Borrowing shall consist of Term Loans made simultaneously by the Term Lenders in
accordance with their respective Applicable Percentage of the Term Facility. Amounts borrowed
under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be
Base Rate Loans or Eurodollar Rate Loans, as further provided herein.



     (b) The Revolving Credit Borrowings. Subject to the terms and conditions set forth
herein, each Revolving Credit Lender severally agrees to make loans (each such loan, a
“Revolving Credit Loan”) to the Borrowers from time to time, on any Business Day during the



-25-









 




Availability Period for the Revolving Credit Facility, in an aggregate amount not to exceed at
any time outstanding the amount of such Lender’s Revolving Credit Commitment; provided,
however, that after giving effect to any Revolving Credit Borrowing, (i) the Total
Revolving Credit Outstandings shall not exceed the Revolving Credit Facility, and (ii) the
aggregate Outstanding Amount of the Revolving Credit Loans of any Lender, plus such Revolving
Credit Lender’s Applicable Revolving Credit Percentage of the Outstanding Amount of all L/C
Obligations, plus such Revolving Credit Lender’s Applicable Revolving Credit Percentage of the
Outstanding Amount of all Swing Line Loans shall not exceed such Revolving Credit Lender’s
Revolving Credit Commitment. Within the limits of each Revolving Credit Lender’s Revolving Credit
Commitment, and subject to the other terms and conditions hereof, the Borrowers may borrow under
this Section 2.01(b), prepay under Section 2.05, and reborrow under this
Section 2.01(b). Revolving Credit Loans may be Base Rate Loans or Eurodollar Rate Loans,
as further provided herein.




     2.02. Borrowings, Conversions and Continuations of Loans. (a) Each Term Borrowing, each
Revolving Credit Borrowing, each conversion of Term Loans or Revolving Credit Loans from one Type
to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower
Agent’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such
notice must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the
requested date of any Borrowing of Base Rate Loans; provided, however, that if the
Borrower Agent wishes to request Eurodollar Rate Loans having an Interest Period of twelve months,
the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four
Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon
the Administrative Agent shall give prompt notice to the Appropriate Lenders of such request and
determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00
a.m., three Business Days before the requested date of such Borrowing, conversion or continuation,
the Administrative Agent shall notify the Borrower Agent (which notice may be by telephone) whether
or not the requested Interest Period has been consented to by all the Lenders. Each telephonic
notice by the Borrower Agent pursuant to this Section 2.02(a) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately completed and signed
by a Responsible Officer of the Borrower Agent. Each Borrowing of, conversion to or continuation
of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c),
each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $1,000,000 or
a whole multiple of $500,000 in excess thereof. Each Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower Agent is requesting a Revolving Credit Borrowing, a Term
Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Term Loans or Revolving Credit Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower Agent fails to specify a
Type of Loan in a Loan Notice or if the Borrower Agent fails to give a timely notice requesting a
conversion or continuation, then the applicable Term Loans or Revolving



-26-









 




Credit Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower Agent requests a
Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month.




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



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



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



     (e) After giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more than ten (10)
Interest Periods in effect in respect of the Facilities in the aggregate at any one time.



     2.03. Letters of Credit. (a) The Letter of Credit Commitment. (i) Subject to the
terms and conditions set forth herein, (A) the L/C Issuer agrees, in reliance upon the agreements
of the Revolving Credit Lenders set forth in this Section 2.03, (1) from time to time on
any Business Day during the period from the Closing Date until the Letter of Credit Expiration
Date, to issue



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





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




     (A) the expiry date of such requested Letter of Credit would occur more than
twelve months after the date of issuance or last extension, unless the Required
Revolving Lenders have approved such expiry date; or




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




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




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



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




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $50,000;




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




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




     (F) any Lender is at that time a Defaulting Lender, unless the L/C Issuer has
entered into arrangements, including the delivery of Cash Collateral, satisfactory
to the L/C Issuer (in its sole discretion) with the Borrowers and/or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.18(a)(iv)) with respect to the Defaulting Lender arising
from either the Letter of Credit then proposed to be issued or that Letter of Credit
and all other L/C Obligations as to which the L/C Issuer has actual or potential
Fronting Exposure, as it may elect in its sole discretion.




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




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




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



     (b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the applicable Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of the applicable Borrower. Such Letter of Credit Application must be received
by the L/C Issuer and the Administrative Agent not later than 11:00 a.m. at least two Business Days
(or such later date and time as the Administrative Agent and the L/C Issuer may agree in a
particular instance in their sole discretion) prior to the proposed issuance




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date or date of amendment, as the case may be. In the case of a request for an initial
issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in
case of any drawing thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter
of Credit; and (H) such other matters as the L/C Issuer may require. In the case of a request for
an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify
in form and detail satisfactory to the L/C Issuer (1) the Letter of Credit to be amended; (2) the
proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed
amendment; and (4) such other matters as the L/C Issuer may require. Additionally, the applicable
Borrower shall furnish to the L/C Issuer and the Administrative Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, including any
Issuer Documents, as the L/C Issuer or the Administrative Agent may require.





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




     (ii) If the applicable Borrower so requests in any applicable Letter of Credit
Application, the L/C Issuer may, in its sole and absolute discretion, agree to issue a
Letter of Credit that has automatic extension provisions (each, an “Auto-Extension
Letter of Credit”); provided that any such Auto-Extension Letter of Credit must
permit the L/C Issuer to prevent any such extension at least once in each twelve-month
period (commencing with the date of issuance of such Letter of Credit) by giving prior
notice to the beneficiary thereof not later than a day (the “Non-Extension Notice
Date”) in each such twelve-month period to be agreed upon at the time such Letter of
Credit is issued. Unless otherwise directed by the L/C Issuer, the applicable Borrower
shall not be required to make a specific request to the L/C Issuer for any such extension.
Once an Auto-Extension Letter of Credit has been issued, the Revolving Credit Lenders shall
be deemed to have authorized (but may not require) the L/C Issuer to permit the extension of
such Letter of Credit at any time to an expiry date not later than the Letter of Credit



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Expiration Date; provided, however, that the L/C Issuer shall not
permit any such extension if (A) the L/C Issuer has determined that it would not be
permitted, or would have no obligation at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day that is seven Business
Days before the Non-Extension Notice Date (1) from the Administrative Agent that the
Required Revolving Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Revolving Credit Lender or the applicable Borrower that one or
more of the applicable conditions specified in Section 4.02 is not then satisfied,
and in each such case directing the L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements; Funding of Participations. (i) Upon receipt from the
beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the L/C
Issuer shall notify the applicable Borrower and the Administrative Agent thereof. If the L/C
Issuer shall make any disbursement in respect of a Letter of Credit, the Borrowers shall reimburse
such disbursement by paying to the Administrative Agent an amount equal to such disbursement not
later than 2:00 p.m. on the date that such disbursement is made (the “Honor Date”), if the
Borrower Agent shall have received notice of such disbursement prior to 10:00 a.m. on the Honor
Date, or, if such notice has not been received by the Borrower Agent prior to such time on the
Honor Date, then not later than (i) 2:00 p.m. on the Business Day that the Borrower Agent receives
such notice, if such notice is received prior to 10:00 a.m. on the day of receipt, or (ii) 12:00
noon on the Business Day immediately following the day that the Borrower Agent receives such
notice, if such notice is not received prior to 10:00 a.m. on the day of receipt; provided
that the Borrowers may, subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.02 or Section 2.04 that such payment be financed with a
Borrowing in an equivalent amount and, to the extent so financed, the Borrowers’ obligation to make
such payment shall be discharged and replaced by the resulting Revolving Credit Borrowing. If the
Borrowers fail to so reimburse the L/C Issuer by such time, the Administrative Agent shall promptly
notify each Revolving Credit Lender of the Honor Date, the amount of the unreimbursed drawing (the
“Unreimbursed Amount”), and the amount of such Revolving Credit Lender’s Applicable
Revolving Credit Percentage thereof. In such event, the Borrowers shall be deemed to have
requested a Revolving Credit Borrowing of Base Rate Loans to be disbursed on the Honor Date in an
amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in
Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the
unutilized portion of the Revolving Credit Commitments and the conditions set forth in Section
4.02 (other than the delivery of a Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if
immediately confirmed in writing; provided that the lack of such an immediate confirmation
shall not affect the conclusiveness or binding effect of such notice.



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




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




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




     (v) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or L/C
Advances to reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 2.03(c), shall be absolute and unconditional and shall
not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment,
defense or other right which such Lender may have against the L/C Issuer, the Borrowers or
any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default,
or (C) any other occurrence, event or condition, whether or not similar to any of the
foregoing; provided, however, that each Revolving Credit Lender’s obligation
to make Revolving Credit Loans pursuant to this Section 2.03(c) is subject to the
conditions set forth in Section 4.02 (other than delivery by the Borrower Agent of a
Loan Notice ). No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrowers to reimburse the L/C Issuer for the amount of any payment made
by the L/C Issuer under any Letter of Credit, together with interest as provided herein.




     (vi) If any Revolving Credit Lender fails to make available to the Administrative Agent
for the account of the L/C Issuer any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.03(c) by the time specified in
Section 2.03(c)(ii), the L/C Issuer shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest



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



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




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



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




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




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



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




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




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



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



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



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under any Letter of Credit after the presentation to it by the beneficiary of a sight draft
and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In
furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear
on their face to be in order, without responsibility for further investigation, regardless of any
notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity
or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.




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



     (h) Letter of Credit Fees. The Borrowers shall pay to the Administrative Agent for
the account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit
equal to the Applicable Rate times the daily amount available to be drawn under such Letter
of Credit; provided, however, any Letter of Credit Fees otherwise payable for the
account of a Defaulting Lender with respect to any Letter of Credit as to which such Defaulting
Lender has not provided Cash Collateral satisfactory to the L/C Issuer pursuant to this Section
2.03 shall be payable, to the maximum extent permitted by applicable Law, to the other Lenders
in accordance with the upward adjustments in their respective Applicable Percentages allocable to
such Letter of Credit pursuant to Section 2.18(a)(iv), with the balance of such fee, if
any, payable to the L/C Issuer for its own account. For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be
determined in accordance with Section 1.06. Letter of Credit Fees shall be (i) due and
payable on the first Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in
arrears. If there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect. Notwithstanding anything to the contrary contained herein, upon the request of the
Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall
accrue at the Default Rate.



     (i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrowers shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily
amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period (or portion thereof,
in the case of the first payment), commencing with the first such date to occur after the issuance
of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For
purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount
of such Letter of Credit shall be determined in accordance with Section 1.06. In addition,
the Borrowers shall pay directly to the L/C Issuer for its own account the customary issuance,
presentation, amendment and other processing fees, and other standard costs and



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charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such
customary fees and standard costs and charges are due and payable on demand and are nonrefundable.




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



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



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



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower
Agent’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Swing Line Lender and the
Administrative Agent not later than 1:00 p.m. on the requested borrowing date, and shall specify
(i) the amount to be borrowed, which shall be a minimum of $500,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must be



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confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the
Borrower Agent. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan
Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not,
the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the
contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing)
from the Administrative Agent (including at the request of any Revolving Credit Lender) prior to
2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the Swing Line Lender not
to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the
first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions
specified in Article IV is not then satisfied, then, subject to the terms and conditions
hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in
such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the applicable
Borrower at its office by crediting the account of such Borrower on the books of the Swing Line
Lender in immediately available funds.




     (c) Refinancing of Swing Line Loans.




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




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



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




     (iv) Each Revolving Credit Lender’s obligation to make Revolving Credit Loans or to
purchase and fund risk participations in Swing Line Loans pursuant to this Section
2.04(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the Swing Line Lender, any Borrower or any other Person
for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Revolving Credit Lender’s obligation to make
Revolving Credit Loans pursuant to this Section 2.04(c) is subject to the conditions
set forth in Section 4.02. No such funding of risk participations shall relieve or
otherwise impair the joint and several obligations of the Borrowers to repay Swing Line
Loans, together with interest as provided herein.



     (d) Repayment of Participations.




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




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



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of the Swing Line Lender. The obligations of the Lenders under this clause shall
survive the payment in full of the Obligations and the termination of this Agreement.



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



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



     2.05. Prepayments. (a) The Borrowers may, upon notice to the Administrative Agent, at any
time or from time to time voluntarily prepay Term Loans and/or Revolving Credit Loans in whole or
in part without premium or penalty; provided that (i) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (A) three Business Days prior to any date of
prepayment of Eurodollar Rate Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any
prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof or, in each case,
if less, the entire principal amount thereof then outstanding. Each such notice shall specify (w)
the date and amount of such prepayment, (x) whether such prepayment is of Term Loans or Revolving
Credit Loans, (y) the Type(s) of Loans to be prepaid and, (z) if Eurodollar Rate Loans are to be
prepaid, the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each
Appropriate Lender of its receipt of each such notice, and of the amount of such Lender’s ratable
portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant
Facility). If such notice is given by the Borrower Agent, the Borrowers shall make such prepayment
and the payment amount specified in such notice shall be due and payable on the date specified
therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on
the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
Each prepayment of the outstanding Term Loans pursuant to this Section 2.05(a) shall be
applied to the principal repayment installments thereof in the inverse order of maturity, and each
such prepayment shall be paid to the Lenders in accordance with their respective Applicable
Percentages in respect of each of the relevant Facilities.



     (b) The Borrowers may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $500,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Borrower
Agent, the Borrowers shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein.



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     (c) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving
Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans and/or
Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess;
provided, however, that the Borrowers shall not be required to Cash Collateralize
the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of
the Revolving Credit Loans the Total Revolving Credit Outstandings exceed the Revolving Credit
Facility at such time.



     2.06. Termination or Reduction of Commitments. (a) Optional. The Borrowers may, upon
notice to the Administrative Agent, terminate the Revolving Credit Facility, the Letter of Credit
Sublimit or the Swing Line Sublimit, or from time to time permanently reduce the Revolving Credit
Facility, the Letter of Credit Sublimit or the Swing Line Sublimit; provided that (i) any
such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business
Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an
aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the
Borrowers shall not terminate or reduce (A) the Revolving Credit Facility if, after giving effect
thereto and to any concurrent prepayments hereunder, the Total Revolving Credit Outstandings would
exceed the Revolving Credit Facility, (B) the Letter of Credit Sublimit, if, after giving effect
thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would
exceed the Letter of Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect
thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans
would exceed the Swing Line Sublimit. In addition, during the Availability Period in respect of
the Term Facility, the Borrowers may, upon notice to the Administrative Agent as set forth above,
from time to time terminate (in whole or in part) the unused portion of the aggregate Term
Commitments. The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Aggregate Commitments. Any reduction of the Aggregate Commitments
shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees
accrued until the effective date of any termination of the Aggregate Commitments shall be paid on
the effective date of such termination.



     (b) Mandatory. (i) The aggregate Term Commitments shall be automatically and
permanently reduced to zero on the last day of the Availability Period for the Term Facility.




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



     2.07. Repayment of Loans. (a) Term Loans. Commencing with the first fiscal quarter
ending after the second anniversary of the date of the first draw under the Term Loan, the
Borrowers shall repay to the Term Lenders on the last day of each fiscal quarter an amount equal to
1.25% of the aggregate Outstanding Amount of the Term Loans on the second anniversary of the date
of such first draw (which amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.05); provided,
however, that the final principal repayment installment of the Term Loans shall be repaid
on the



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Maturity Date and in any event shall be in an amount equal to the aggregate principal amount
of all Term Loans outstanding on such date.




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



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



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



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




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




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




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



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



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



     (a) Commitment Fee. The Borrowers shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage, a commitment fee equal to the Applicable Rate times the actual daily amount by
which the Revolving Credit Facility exceeds the sum of (i) the Outstanding Amount of Revolving
Credit Loans (less the Outstanding Amount of any Swing Line Loans) and (ii) the Outstanding Amount
of L/C Obligations, subject to adjustment as provided in Section 2.18. The commitment fee
shall accrue at all times during the Availability Period for the Revolving Credit Facility,
including at any time during which one or more of the conditions in Article IV is not met,
and shall be due and payable quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the Closing Date, and on
the last day of such Availability Period. The commitment fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.



     (b) Ticking Fee. The Borrowers shall pay to the Administrative Agent for the account
of each Term Lender in accordance with its Applicable Percentage of the Term Facility, a ticking
fee equal to the Applicable Rate times the actual daily amount by which the aggregate Term
Commitments exceeds the Outstanding Amount of Term Loans. The ticking fee shall accrue at all
times during the Availability Period for the Term Facility, including at any time during the
Availability Period for the Term Facility during which one or more of the conditions in Article
IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of
each fiscal quarter during the Availability Period for the Term Facility, commencing with the first
such date to occur after the Closing Date, and on the last day of the Availability Period for the
Term Facility.



     (c) Other Fees. (i) The Borrowers shall pay to MLPF&S and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the Fee Letter.
Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.




     (ii) The Borrowers shall pay to the Lenders such fees as shall have been separately
agreed upon in writing in the amounts and at the times so specified. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.



     2.10. Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate. (a) All
computations of interest for Base Rate Loans (including Base Rate Loans determined by reference to
the Eurodollar Rate) shall be made on the basis of a year of 365 or 366 days, as the case may be,
and actual days elapsed. All other computations of fees and interest shall be made on the basis of
a 360-day year and actual days elapsed (which results in more fees or interest, as applicable,
being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan
for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for
the day on which the Loan or such portion is paid, provided that any Loan that is repaid on
the same day on which it is made shall, subject to Section 2.12(a),



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bear interest for one day. Each determination by the Administrative Agent of an interest rate
or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.




     (b) If, as a result of any restatement of or other adjustment to the financial statements
(except to the extent, in accordance with Section 1.03(b), such restatement or other
adjustment does not affect the calculation of the financial covenants set forth in Section
7.10) of the Borrowers or for any other reason, the Borrowers or the Lenders determine that (i)
the Consolidated Funded Indebtedness to Total Capitalization Ratio as calculated by the Borrowers
as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Funded
Indebtedness to Total Capitalization Ratio would have resulted in higher pricing for such period,
the Borrowers shall immediately and retroactively be obligated to pay to the Administrative Agent
for the account of the applicable Lenders or the L/C Issuer, as the case may be, promptly on demand
by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for
relief with respect to any Borrower under the Bankruptcy Code of the United States, automatically
and without further action by the Administrative Agent, any Lender or the L/C Issuer), an amount
equal to the excess of the amount of interest and fees that should have been paid for such period
over the amount of interest and fees actually paid for such period. Notwithstanding the foregoing,
to the extent that such restatement or adjustment to the financial statements of the Borrowers is a
result of a challenge to the accounting treatment as Synthetic Lease Obligations of the leases
subject to the Sale-Leaseback Arrangements and the sale-leaseback arrangements set forth on
Schedule 7.01 and such leases are instead treated as capital leases for GAAP purposes, the
Borrowers shall not be obligated to pay to the Administrative Agent such excess amount;
provided, however, that, at all times after such challenge has been made, the
Borrowers shall treat such leases as capital leases for all purposes, including, without
limitation, calculation of the Applicable Rate and compliance with the financial covenants set
forth in Section 7.10. This paragraph shall not limit the rights of the Administrative
Agent, any Lender or the L/C Issuer, as the case may be, under Section 2.03(c)(iii),
2.03(i) or 2.08(b) or under Article VIII. The Borrowers’ obligations under
this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all
other Obligations hereunder for a period of three (3) years.



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



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



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



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




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any claim the Borrowers may have against a Lender that shall have failed to make such payment
to the Administrative Agent.





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



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



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



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



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



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



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then due hereunder, ratably among the parties entitled thereto in accordance with the amounts
of interest and fees then due to such parties, and (ii) second, toward payment of principal
and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance
with the amounts of principal and L/C Borrowings then due to such parties.




     2.13. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff
or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of
the Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it
resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Loans
or participations and accrued interest thereon greater than its pro rata share thereof as provided
herein, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent
of such fact, and (b) purchase (for cash at face value) participations in the Loans and
subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:




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




     (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrowers pursuant to and in accordance with the express terms of this Agreement
(including the application of funds arising from the existence of a Defaulting Lender), (y)
the application of Cash Collateral provided for in Section 2.17, or (z) any payment
obtained by a Lender as consideration for the assignment of or sale of a participation in
any of its Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee
or participant, other than to any Borrower or any Subsidiary thereof (as to which the
provisions of this Section shall apply).



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



     2.14. Appointment of Borrower Agent. Each Borrower hereby designates the Company as its
representative and agent on its behalf for the purposes of issuing Loan Notices, Swing Line Loan
Notices, giving instructions with respect to the disbursement of the proceeds of the Loans,
selecting interest rate options, requesting Letters of Credit, giving and receiving all other
notices and consents hereunder or under any of the other Loan Documents and taking all other
actions (including in respect of compliance with covenants) on behalf of any Borrower or Borrowers
under the Loan Documents. The Borrower Agent hereby accepts such appointment. The Administrative
Agent and each Lender may regard any notice or other communication pursuant to any Loan Document
from the Borrower Agent as a notice or communication from all Borrowers, and may give any notice or
communication required or permitted to be given to any



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Borrower or Borrowers hereunder to the Borrower Agent on behalf of such Borrower or Borrowers.
Each Borrower agrees that each notice, election, representation and warranty, covenant, agreement
and undertaking made on its behalf by the Borrower Agent shall be deemed for all purposes to have
been made by such Borrower and shall be binding upon and enforceable against such Borrower to the
same extent as if the same had been made directly by such Borrower.




     2.15. Joint and Several Liability of the Borrowers. Each Borrower hereby irrevocably and
unconditionally agrees that it is jointly and severally liable for all of the liabilities,
obligations, covenants and agreements of the Borrowers hereunder and under the other Loan
Documents, whether now or hereafter existing or due or to become due. The obligations of the
Borrowers under the Loan Documents may be enforced by the Administrative Agent and the Lenders
against any Borrower or all Borrowers in any manner or order selected by the Administrative Agent
or the Required Lenders in their sole discretion. Each Borrower hereby irrevocably waives (i) any
rights of subrogation and (ii) any rights of contribution, indemnity or reimbursement, in each
case, that it may acquire or that may arise against any other Borrower due to any payment or
performance made under this Agreement, in each case until all Obligations shall have been fully
satisfied. Without limiting the foregoing provisions of this Section 2.15, each Borrower
acknowledges and agrees that:



     (a) its obligations under this Agreement shall remain enforceable against it even though such
obligations may be unenforceable or not allowable against any other Borrower due to the existence
of an insolvency proceeding involving any other Borrower;



     (b) its obligations under this Agreement are independent of the obligations of any other
Borrower, and a separate action or actions may be brought and prosecuted against it in respect of
such obligations irrespective of whether any action is brought against any other Borrower or any
other Borrower is joined in any such action or actions;



     (c) it hereby irrevocably waives any defenses it may now have or hereafter acquire in any way
relating to, any or all of the following:




     (i) any lack of validity or enforceability of this Agreement or any agreement or
instrument relating thereto in respect of any other Borrower;




     (ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of any other Borrower under or in respect of this Agreement,
or any other amendment or waiver of or any consent to departure from this Agreement, in
respect of any other Borrower;




     (iii) any change, restructuring or termination of the structure or existence of any
other Borrower;




     (iv) the failure of any other Person to execute or deliver any other agreement or the
release or reduction of liability of any other Person with respect to any obligations of the
Borrowers under this Agreement; or



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     (v) any other circumstance (including any statute of limitations but other than the
Obligations having been fully satisfied) or any existence of or reliance on any
representation by any other Person that might otherwise constitute a defense available to,
or a discharge of, any other Borrower;



     (d) its obligations under this Agreement shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any such obligations is rescinded or must otherwise
be returned by any Person upon the insolvency, bankruptcy or reorganization of any other Borrower,
all as though such payment had not been made; and



     (e) it hereby unconditionally and irrevocably waives any right to revoke its joint and several
liability under the Loan Documents and acknowledges that such liability is continuing in nature and
applies to all obligations of the Borrowers under the Loan Documents, whether existing now or in
the future.



     2.16. Increase in Commitments. (a) Request for Increase. Provided there exists no
Default, upon notice to the Administrative Agent (which shall promptly notify the Appropriate
Lenders), the Borrowers may from time to time, request an increase in the Aggregate Commitments
(which increase may take the form of new revolving or term loan tranches) by an amount (for all
such requests) not exceeding $250,000,000; provided that (i) any such request for an
increase shall be in a minimum amount of $50,000,000, and (ii) the Borrowers may make a maximum of
four such requests. At the time of sending such notice, the Borrowers (in consultation with the
Administrative Agent) shall specify the time period within which each Appropriate Lender is
requested to respond (which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Appropriate Lenders).



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



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



     (d) Effective Date and Allocations. If the Aggregate Commitments are increased in
accordance with this Section, the Administrative Agent and the Borrowers shall determine the
effective date (the “Increase Effective Date”) and the final allocation of such increase.
The Administrative Agent shall promptly notify the Borrowers and the Appropriate Lenders of the
final allocation of such increase and the Increase Effective Date.



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     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrowers shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Appropriate Lender) signed
by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by
such Loan Party approving or consenting to such increase, and (ii) in the case of the Borrowers,
certifying that, before and after giving effect to such increase, (A) the representations and
warranties contained in Article V and the other Loan Documents are true and correct on and
as of the Increase Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.16, the representations and warranties
contained in subsection (a) of Section 5.05 shall be deemed to refer to the most
recent statements furnished pursuant to clause (a) of Section 6.01, and (B) no
Default exists. The Borrowers shall prepay any Loans outstanding on the Increase Effective Date
(and pay any additional amounts required pursuant to Section 3.05) to the extent necessary
to keep the outstanding Loans ratable with any revised Applicable Percentages arising from any
nonratable increase in the Commitments under this Section.



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



     2.17. Cash Collateral. (a) Certain Credit Support Events. Upon the request of the
Administrative Agent or the L/C Issuer (i) if the L/C Issuer has honored any full or partial
drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrowers shall, in each case, immediately Cash Collateralize the then Outstanding
Amount of all L/C Obligations. At any time that there shall exist a Defaulting Lender, immediately
upon the request of the Administrative Agent, the L/C Issuer or the Swing Line Lender, the
Borrowers shall deliver to the Administrative Agent Cash Collateral in an amount sufficient to
cover all Fronting Exposure (after giving effect to Section 2.18(a)(iv) and any Cash
Collateral provided by the Defaulting Lender).



     (b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at Bank of America. The Borrowers, and to the extent provided by any Lender, such Lender,
hereby grant to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuer and the Lenders (including the Swing Line Lender), and agrees
to maintain, a first priority security interest in all such cash, deposit accounts and all balances
therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 2.17(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent as
herein provided, or that the total amount of such Cash Collateral is less than the applicable
Fronting Exposure and other obligations secured thereby, the Borrowers or the relevant Defaulting
Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.



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     (c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.17 or Sections
2.04, 2.05, 2.06, 2.18 or 8.02 in respect of Letters of Credit
or Swing Line Loans shall be held and applied to the satisfaction of the specific (i) L/C
Obligations, (ii) Swing Line Loans, (iii) obligations to fund participations therein (including, as
to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and
(iv) other obligations for which the Cash Collateral was so provided, prior to any other
application of such property as may be provided for herein.



     (d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee
following compliance with Section 10.06(b)(vi))) or (ii) the Administrative Agent’s good
faith determination that there exists excess Cash Collateral; provided, however,
(x) that Cash Collateral furnished by or on behalf of a Loan Party shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this
Section 2.17 may be otherwise applied in accordance with Section 8.03), and (y) the
Person providing Cash Collateral and the L/C Issuer or Swing Line Lender, as applicable, may agree
that Cash Collateral shall not be released but instead held to support future anticipated Fronting
Exposure or other obligations.



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




     (i) Waivers and Amendments. That Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Agreement shall be
restricted as set forth in Section 10.01.




     (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Article VIII or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.08), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any amounts
owing by that Defaulting Lender to the Administrative Agent hereunder; second, to the
payment on a pro rata basis of any amounts owing by that Defaulting Lender to the L/C Issuer
or Swing Line Lender hereunder; third, if so determined by the Administrative Agent or
requested by the L/C Issuer or Swing Line Lender, to be held as Cash Collateral for future
funding obligations of that Defaulting Lender of any participation in any Swing Line Loan or
Letter of Credit; fourth, as the Borrower Agent may request (so long as no Default or Event
of Default exists), to the funding of any Loan in respect of which that Defaulting Lender
has failed to fund its portion thereof as required by this Agreement, as determined by the
Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower
Agent, to be held in a non-interest bearing deposit account and released in order to satisfy
obligations of that Defaulting Lender to fund Loans under this Agreement; sixth, to the
payment of any amounts owing to the Lenders, the L/C Issuer or



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Swing Line Lender as a result of any judgment of a court of competent jurisdiction
obtained by any Lender, the L/C Issuer or Swing Line Lender against that Defaulting Lender
as a result of that Defaulting Lender’s breach of its obligations under this Agreement;
seventh, so long as no Default or Event of Default exists, to the payment of any amounts
owing to the Borrowers as a result of any judgment of a court of competent jurisdiction
obtained by the Borrowers against that Defaulting Lender as a result of that Defaulting
Lender’s breach of its obligations under this Agreement; and eighth, to that Defaulting
Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x)
such payment is a payment of the principal amount of any Loans or L/C Borrowings in respect
of which that Defaulting Lender has not fully funded its appropriate share and (y) such
Loans or L/C Borrowings were made at a time when the conditions set forth in Section
4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of,
and L/C Borrowings owed to, all non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section 2.18(a)(ii) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto.




     (iii) Certain Fees. That Defaulting Lender (x) shall not be entitled to
receive any commitment fee pursuant to Section 2.09(a) for any period during which
that Lender is a Defaulting Lender (and the Borrowers shall not be required to pay any such
fee that otherwise would have been required to have been paid to that Defaulting Lender) and
(y) shall be limited in its right to receive Letter of Credit Fees as provided in
Section 2.03(h).




     (iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit or Swing Line Loans pursuant to Sections 2.03
and 2.04, the “Applicable Percentage” of each non-Defaulting Lender shall be
computed without giving effect to the Commitment of that Defaulting Lender; provided, that,
(i) each such reallocation shall be given effect only if, at the date the applicable Lender
becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate
obligation of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of
(1) the Commitment of that non-Defaulting Lender minus (2) the aggregate Outstanding Amount
of the Loans of that Lender.



     (b) Defaulting Lender Cure. If the Borrower Agent, the Administrative Agent, Swing
Line Lender and the L/C Issuer agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Loans and funded and unfunded participations in Letters of Credit and



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Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their
Applicable Percentages (without giving effect to Section 2.18(a)(iv)), whereupon that
Lender will cease to be a Defaulting Lender; provided that no adjustments will be made
retroactively with respect to fees accrued or payments made by or on behalf of the Borrowers while
that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise
expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will
constitute a waiver or release of any claim of any party hereunder arising from that Lender’s
having been a Defaulting Lender.




ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




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




     (ii) If the Borrowers or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the Administrative Agent shall withhold or
make such deductions as are determined by the Administrative Agent to be required based upon
the information and documentation it has received pursuant to subsection (e) below,
(B) the Administrative Agent shall timely pay the full amount withheld or deducted to the
relevant Governmental Authority in accordance with the Code, and (C) to the extent that the
withholding or deduction is made on account of Indemnified Taxes or Other Taxes, the sum
payable by the Borrowers shall be increased as necessary so that after any required
withholding or the making of all required deductions (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) the
Administrative Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to
the sum it would have received had no such withholding or deduction been made.



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



     (c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrowers shall, and do hereby, jointly and severally, indemnify the Administrative
Agent, each Lender and the L/C Issuer, and shall make payment in respect thereof within 10 days
after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under
this Section) withheld or deducted by the Borrowers or the Administrative Agent or paid by the
Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any



-52-









 




penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority provided, however, that the Borrowers shall not be
obligated to make payment to the Administrative Agent or any Lender or the L/C Issuer pursuant to
this Section in respect of penalties, interest and other liabilities attributable to any
Indemnified Taxes or Other Taxes, if such penalties, interest and other liabilities are
attributable to the gross negligence or willful misconduct of the Administrative Agent, Lender or
L/C Issuer. A certificate as to the amount of any such payment or liability delivered to the
Borrowers by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the
Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.





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



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



     (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Borrowers and to the Administrative Agent, at the time or times prescribed by applicable Laws or
when reasonably requested by the Borrowers or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the Borrowers or the
Administrative Agent, as the case may be, to determine (A) whether or not payments made hereunder
or under any other Loan Document are subject to Taxes, (B) if



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applicable, the required rate of withholding or deduction, and (C) such Lender’s entitlement
to any available exemption from, or reduction of, applicable Taxes in respect of all payments to be
made to such Lender by the Borrowers pursuant to this Agreement or otherwise to establish such
Lender’s status for withholding tax purposes in the applicable jurisdiction.





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




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




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




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




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




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




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




     (V) executed originals of any other form prescribed by applicable Laws
as a basis for claiming exemption from or a reduction in United States
Federal withholding tax together with such supplementary



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documentation as may be prescribed by applicable Laws to permit the
Borrowers or the Administrative Agent to determine the withholding or
deduction required to be made.




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



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



     3.02. Illegality. If any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending
Office to make, maintain or fund Loans the interest rate on which is determined by reference to the
Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice
thereof by such Lender to the Borrowers through the Administrative Agent, (i) any obligation of
such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar
Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making
or maintaining Base Rate Loans the interest rate on which is determined by reference to the
Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such
Lender shall, if necessary to avoid such



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illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate
component of the Base Rate, in each case until such Lender notifies the Administrative Agent and
the Borrowers that the circumstances giving rise to such determination no longer exist. Upon
receipt of such notice, (x) the Borrowers shall, upon demand from such Lender (with a copy to the
Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender
to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary
to avoid such illegality, be determined by the Administrative Agent without reference to the
Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period
therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day,
or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and
(y) if such notice asserts the illegality of such Lender determining or charging interest rates
based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension
compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component
thereof until the Administrative is advised in writing by such Lender that it is no longer illegal
for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any
such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so
prepaid or converted.




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



     3.04. Increased Costs; Reserves on Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:




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




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



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




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


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of
maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the
L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its
obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum
received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest
or any other amount), in each case by or in an amount which such Lender in its reasonable
discretion deems material in the context of this Agreement and its Loans or participations in
Letters of Credit hereunder, then, upon request of such Lender or the L/C Issuer, the Borrowers
will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as
will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs
incurred or reduction suffered.




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



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



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



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



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



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



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



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


The Borrowers shall also pay any customary administrative fees charged by such Lender in connection
with the foregoing.



Such loss, cost or expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the
principal amount of such Loan had such event not occurred, at the Eurodollar Rate that would have
been applicable to such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue,
for the period that would have been the Interest Period for such Loan), over (ii) the






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amount of interest which would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such period, for dollar deposits
of a comparable amount and period from other banks in the Eurodollar market.




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



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



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



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




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




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



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     (iii) executed counterparts of each other Loan Document;




     (iv) such certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the Administrative Agent
may require evidencing the identity, authority and capacity of each Responsible Officer
thereof authorized to act as a Responsible Officer in connection with this Agreement and the
other Loan Documents to which such Loan Party is a party;




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




     (vi) a favorable opinion of Jones, Walker, Waechter, Poitevent, Carrère & Denègre
L.L.P., counsel to the Loan Parties, addressed to the Administrative Agent and each Lender,
in form and substance reasonably satisfactory to the Administrative Agent;




     (vii) a certificate of a Responsible Officer of each Loan Party either (A) attaching
copies of all consents, licenses and approvals required in connection with the execution,
delivery and performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals shall be in
full force and effect, or (B) stating that no such consents, licenses or approvals are so
required;




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




     (ix) a certificate attesting to the Solvency of the Loan Parties, taken as a whole,
before and after giving effect to the extension of Loans hereunder, from the chief financial
officer of the Borrower Agent;




     (x) all commitments of lenders under the Prior Credit Agreement that are not parties to
this Agreement shall have been terminated and all commitments thereunder of each Lender that
is a party to this Agreement shall be evidenced only by this Agreement. and




     (xi) such other assurances, certificates, documents, consents or opinions as the
Administrative Agent, the L/C Issuer, the Swing Line Lender or any Lender reasonably may
require.



     (b) (i) All fees required to be paid to the Administrative Agent and MLPF&S on or before the
Closing Date shall have been paid and (ii) all fees required to be paid to the Lenders on or before
the Closing Date shall have been paid.



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     (c) The Borrowers shall have paid all reasonable fees, charges and disbursements of counsel to
the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges
and disbursements as shall constitute its reasonable estimate of such fees, charges and
disbursements incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude a final settling of accounts between the Borrowers
and the Administrative Agent).



     (d) The Closing Date shall have occurred on or before February 15, 2011.


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




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



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



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



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



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



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ARTICLE V.

REPRESENTATIONS AND WARRANTIES




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



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



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



     5.03. Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or performance by,
or enforcement against, any Loan Party of this Agreement or any other Loan Document.



     5.04. Binding Effect. This Agreement has been, and each other Loan Document, when delivered
hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto.
This Agreement constitutes, and each other Loan Document when so delivered will constitute, a
legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is
party thereto in accordance with its terms, subject to (a) the effects of any Debtor Relief Laws,
(b) implied covenants of good faith and fair dealing, and (c) general principles of equity,
regardless of whether considered in a proceeding in equity or at law.



     5.05. Financial Statements; No Material Adverse Effect. (a) The Audited Financial Statements
(i) were prepared in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (ii) fairly present, in all material
respects, the consolidated financial condition of the Company and its Subsidiaries as of the date
thereof and their consolidated results of operations for the period covered thereby in



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accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein.




     (b) Except as disclosed in the Audited Financial Statements or the notes thereto or in the
confidential information materials provided to the Administrative Agent and the Lenders on or about
January 3, 2011 relating to the Borrowers and the transactions contemplated by this Agreement, none
of the Borrowers nor any of the Subsidiaries has, as of the Closing Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses that would reasonably be expected
to give rise to a Material Adverse Effect.



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



     (d) The consolidated forecasted balance sheet, statements of income and cash flows of the
Company and its Subsidiaries delivered pursuant to Section 4.01 or Section 6.01(c)
were prepared in good faith based upon assumptions believed to be reasonable at the time such
forecasts were prepared.



     5.06. Litigation. Except as provided in Schedule 5.06, there are no actions, suits,
proceedings, claims or disputes pending or, to the knowledge of the Responsible Officers of the
Company, threatened, at law, in equity, in arbitration or before any Governmental Authority, by or
against any Borrower or any of its Subsidiaries or against any of their properties or revenues that
(a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby, or (b) either individually or in the aggregate could reasonably
be expected to have a Material Adverse Effect.



     5.07. No Default. No Loan Party nor any Subsidiary thereof is in default under or with
respect to, or a party to, any Contractual Obligation that could, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and
is continuing or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.



     5.08. Ownership of Property; Liens. Each Loan Party and each of its Subsidiaries has good
title to, or valid leasehold interests in, all real property material to its business, except to
the extent any failure to do so would not reasonably be expected to have a Material Adverse Effect.
The property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens
permitted by Section 7.01.



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



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     (b) Except as set forth on Schedule 5.09, no Loan Party nor any Subsidiary has been
designated as a potentially responsible party under CERCLA or under any state statute similar to
CERCLA. None of the Properties has been identified on any current or proposed National Priorities
List under 40 C.F.R. §300 or any list arising from a state statute similar to CERCLA. None of the
Properties has been identified on any CERCLIS list.



     (c) No Hazardous Materials have been or are being used, produced, manufactured, processed,
generated, stored, disposed of, released, managed at or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the Properties or, to the knowledge of the
Loan Parties, at or from any adjacent site or facility, except for Hazardous Materials used,
produced, manufactured, processed, generated, stored, disposed of, released and managed, shipped or
transported in the ordinary course of business in compliance with all applicable Environmental
Laws, except where failure to comply could not reasonably be expected to have a Material Adverse
Effect.



     (d) Each Loan Party and each of its Subsidiaries has procured all permits, licenses or
authorizations (or any variances or waivers) necessary under Environmental Laws for the conduct of
its business except to the extent any failure to do so could not reasonably be expected to have a
Material Adverse Effect.



     5.10. Taxes. Each Borrower and its Subsidiaries have filed all Federal, state and other
material tax returns and reports, which, to the knowledge of the Responsible Officers of the
Company, are required to be filed, and have paid all Federal, state and other material taxes,
assessments, fees and other governmental charges levied or imposed upon them or their properties,
income or assets otherwise due and payable, except (i) those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP and (ii) returns and reports the non-filing of which, and Taxes
the non-payment of which, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect. Neither any Loan Party nor any Subsidiary thereof is party to
any tax sharing agreement.



     5.11. ERISA Compliance. (a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each Pension Plan that
is intended to be a qualified plan under Section 401(a) of the Code has received a favorable
determination letter from the Internal Revenue Service to the effect that the form of such Plan is
qualified under Section 401(a) of the Code and the trust related thereto has been determined by the
Internal Revenue Service to be exempt from federal income tax under Section 501(a) of the Code, or
an application for such a letter is currently being processed by the Internal Revenue Service. To
the knowledge of the Borrowers, nothing has occurred that would prevent or cause the loss of such
tax-qualified status.



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



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     (c) (i) No ERISA Event has occurred, and neither the Borrowers nor any ERISA Affiliate is
aware of any fact, event or circumstance that could reasonably be expected to constitute or result
in an ERISA Event with respect to any Pension Plan; (ii) each Borrower and each ERISA Affiliate has
met all applicable requirements under the Pension Funding Rules in respect of each Pension Plan,
and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for
or obtained; (iii) as of the most recent valuation date for any Pension Plan, the funding target
attainment percentage (as defined in Section 430(d)(2) of the Code) is 60% or higher and no
Borrower nor any ERISA Affiliate knows of any facts or circumstances that could reasonably be
expected to cause the funding target attainment percentage for any such plan to drop below 60% as
of the most recent valuation date; (iv) no Borrower nor any ERISA Affiliate has incurred any
liability to the PBGC other than for the payment of premiums, and there are no premium payments
which have become due that are unpaid; (v) no Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no Pension
Plan has been terminated by the plan administrator thereof nor by the PBGC, and no event or
circumstance has occurred or exists that could reasonably be expected to cause the PBGC to
institute proceedings under Title IV of ERISA to terminate any Pension Plan.



     (d) No Borrower nor any ERISA Affiliate maintains or contributes to, or has any unsatisfied
obligation to contribute to, or liability under, any active or terminated Pension Plan other than
(A) on the Closing Date, those listed on Schedule 5.11(d) hereto and (B) thereafter,
Pension Plans not otherwise prohibited by this Agreement.



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




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




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




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



     5.12. Subsidiaries; Equity Interests; Loan Parties. As of the Closing Date, no Loan Party has
any Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.12, and
all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully
paid and non-assessable and are owned by a Loan Party in the amounts specified on Part (a) of



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Schedule 5.12 free and clear of all Liens other than those permitted by Section
7.01. No Loan Party has any equity investments in any other corporation or entity other than
those specifically disclosed in Part (b) of Schedule 5.12. All of the outstanding Equity
Interests in the Borrowers have been validly issued, are fully paid and non-assessable, are free
and clear of all Liens other than those permitted by Section 7.01 and, other than with
respect to the Company, are owned by the applicable entity, and in the amounts, specified on Part
(c) of Schedule 5.12.




     5.13. Margin Regulations; Investment Company Act. (a) No part of the proceeds of the Loans
will be used, whether directly or indirectly, for any purpose which entails a violation (including
on the part of any Lender) of Regulation U or X of the FRB.



     (b) No Loan Party is or is required to be registered as an “investment company” under the
Investment Company Act of 1940.



     5.14. Disclosure. No report, financial statement, certificate or other information furnished
(whether in writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any
Lender in connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case as modified or
supplemented by other information so furnished) taken as a whole contains any material misstatement
of fact or omits to state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that, with
respect to projected financial information, the Borrowers represent only that such information was
prepared in good faith based upon assumptions believed to be reasonable at the time such projected
financial information was delivered.



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



     5.16. Solvency. The Company and its Subsidiaries, taken as a whole on a consolidated basis,
is Solvent.



     5.17. Use of Proceeds. The proceeds of the Loans will be used in accordance with Section
6.11.



ARTICLE VI.

AFFIRMATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding,
each of the Borrowers shall, and shall (except in the case of the covenants set forth in
Sections 6.01, 6.02, 6.03 and 6.11) cause each Subsidiary to:



     6.01. Financial Statements. Deliver to the Administrative Agent and each Lender:



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     (a) as soon as available, but in any event within ninety (90) days after the end of each
fiscal year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as at
the end of such fiscal year, and the related consolidated statements of earnings, stockholders’
equity and cash flow for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, prepared in accordance with GAAP, audited and accompanied by
a report and opinion of an independent certified public accountant of nationally recognized
standing, which report and opinion shall be prepared in accordance with generally accepted auditing
standards and shall not be subject to any “going concern” or like qualification, exception,
explanatory paragraph or any qualification or exception as to the scope of such audit;



     (b) as soon as available, but in any event within forty-five (45) days after the end of each
of the first three fiscal quarters of each fiscal year of the Company, a consolidated balance sheet
of the Company and its Subsidiaries as at the end of such fiscal quarter, and the related
consolidated statements of earnings, stockholders’ equity and cash flow for such fiscal quarter and
for the portion of the Company’s fiscal year then ended, in each case setting forth in comparative
form the figures for the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, to be certified by the chief executive officer,
chief financial officer, treasurer or controller of the Company as fairly presenting in all
material respects the consolidated financial condition, earnings, stockholders’ equity and cash
flow of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end
audit adjustments and the absence of footnotes; and



     (c) as soon as available, but in any event not later than ninety (90) days after the beginning
of each fiscal year of the Company, an annual budget of the Company and its Subsidiaries on a
consolidated basis, including forecasts prepared by management of the Company, in form reasonably
satisfactory to the Administrative Agent, of consolidated balance sheets and statements of income
or operations and cash flows of the Company and its Subsidiaries on a quarterly basis for the
immediately following fiscal year (including the fiscal year in which the Maturity Date occurs).


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




     6.02. Certificates; Other Information. Deliver to the Administrative Agent and each Lender,
in form and detail satisfactory to the Administrative Agent and the Required Lenders:



     (a) concurrently with the delivery of the financial statements referred to in Section
6.01(a), a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary therefor no knowledge was
obtained of any Event of Default or, if any such Event of Default shall exist, stating the nature
and status of such event (which certificate may be limited to the extent required by accounting
rules or guidelines);



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     (b) concurrently with the delivery of the financial statements referred to in Sections
6.01(a) and (b), a duly completed Compliance Certificate signed by the chief executive
officer, chief financial officer, treasurer or controller of the Company;



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



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



     Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower Agent posts such documents, or provides a link
thereto on the Borrower Agent’s website on the Internet at the website address listed on
Schedule 10.02; or (ii) on which such documents are posted on the Borrowers’ behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that: (i) the Borrower Agent shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower Agent to deliver such paper copies
until a written request to cease delivering paper copies is given by the Administrative Agent or
such Lender and (ii) the Borrower Agent shall notify the Administrative Agent and each Lender (by
telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. The Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrowers with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.



     Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of any Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to any Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees
that (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” each
Borrower shall be deemed to have authorized the



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Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to such Borrower or
its securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Administrative Agent and the Arrangers shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform that is not designated “Public Side Information.”




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



     (a) of the occurrence of any Default;



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



     (c) the occurrence of any ERISA Event; or



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



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



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



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




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patents, trademarks, trade names and service marks, the non-preservation of which could
reasonably be expected to have a Material Adverse Effect.




     6.06. Maintenance of Properties. (a) Maintain, preserve and protect all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted; and (b) make all necessary repairs thereto and renewals
and replacements thereof except in the case of either clause (a) or (b) where the
failure to do so would not reasonably be expected to have a Material Adverse Effect.



     6.07. Maintenance of Insurance. Maintain with financially sound and reputable insurance
companies not Affiliates of any Borrower, insurance with respect to its properties and business
against loss or damage of the kinds customarily insured against by Persons engaged in the same or
similar business operating in the same or similar locations, of such types and in such amounts as
are customarily carried under similar circumstances by such other Persons.



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



     6.09. Books and Records. (a) Maintain proper books of record and account sufficient to permit
the preparation of financial statements in accordance with GAAP and (b) maintain such books of
record and account in material conformity with all applicable requirements of any Governmental
Authority having regulatory jurisdiction over such Borrower or such Subsidiary, as the case may be.



     6.10. Inspection Rights. Permit representatives and independent contractors of the
Administrative Agent and each Lender to visit and inspect any of its Properties, to examine its
corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to
discuss its affairs, finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Administrative Agent or such Lender and at such reasonable
times during normal business hours and as often as may be reasonably desired, upon reasonable
advance notice to the Borrowers; provided, however, that, excluding any such visits
and inspections during the continuation of an Event of Default, (a) any visit of a Lender shall
occur at the same time as a visit by the Administrative Agent, (b) the Administrative Agent and the
Lenders shall not exercise such rights more than two times during any calendar year and (c) the
Borrowers will not be obligated to reimburse the Administrative Agent or the Lenders for more than
one such visit per calendar year; provided, further, that when an Event of Default
exists the Administrative Agent or any Lender (or any of their respective representatives or
independent contractors) may do any of the foregoing at the expense of the Borrowers at any time
during normal business hours and without advance notice.



     6.11. Use of Proceeds. Use the proceeds of the Credit Extensions to refinance existing
Indebtedness and for other general corporate purposes not in contravention of any Law or of any
Loan Document. No part of the proceeds of any Loan will be used, whether directly or



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indirectly, for any purpose that entails a violation (including on the part of any Lender) of
Regulation U or X of the FRB. The Company shall ensure that at all times not more than 25% of the
value of the assets subject to the provisions of Sections 7.01 and 7.05 will
consist of Margin Stock (as defined in Regulation U of the FRB); provided that the Company
may permit such Margin Stock to exceed 25% of the value of the assets subject to the provisions of
Sections 7.01 and 7.05 if the Company shall have otherwise put into place currently
effective arrangements to ensure compliance with Regulation U and X and the Administrative Agent
shall have received an opinion satisfactory to it as to such compliance from a law firm
satisfactory to the Administrative Agent.




     6.12. Additional Borrowers or Guarantors. Notify the Administrative Agent at the time that
any Person becomes a Wholly Owned Domestic Subsidiary, and promptly thereafter (and in any event
within 30 days), cause such Person to (a) become a Borrower or Guarantor by executing and
delivering to the Administrative Agent a counterpart of this Agreement and the Notes or a Guaranty
and/or such other document as the Administrative Agent shall deem appropriate for such purpose and
(b) deliver to the Administrative Agent documents of the types referred to in clauses (iii)
and (iv) of Section 4.01(a) and favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and enforceability of the
documentation referred to in clause (a)), all in form, content and scope reasonably
satisfactory to the Administrative Agent.



     6.13. Compliance with Environmental Laws. Except where the failure to do so, individually or
in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, (a)
comply, and use commercially reasonable efforts to cause all lessees and other Persons operating or
occupying its Properties to comply, in all material respects, with all applicable Environmental
Laws and Environmental Permits; (b) obtain and renew all Environmental Permits necessary for its
operations and properties; (c) conduct any remedial actions in compliance with applicable
Environmental Laws; provided, however, that the Borrowers and the Subsidiaries
shall not be required to undertake any remedial action or obtain or renew any environmental permit,
or comply with any Environmental Law to the extent that its obligation to do so is being contested
in good faith and by proper proceedings and appropriate reserves, in accordance with GAAP, are
maintained in connection therewith.



ARTICLE VII.

NEGATIVE COVENANTS



     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, no
Borrower shall, nor shall it permit any Subsidiary to, directly or indirectly:



     7.01. Liens. Create, incur, assume or suffer to exist any Lien upon any of its property,
assets or revenues, whether now owned or hereafter acquired, other than the following:



     (a) Liens created after the Closing Date to secure the Obligations;



     (b) Liens existing on the date hereof and listed on Schedule 7.01 and any
replacements, renewals or extensions thereof (including if an early buy-out option is exercised in



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connection with a sale-leaseback arrangement listed on Schedule 7.01, then the
subsequent sale-leaseback of such vessel shall be considered a renewal), provided that (i)
the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not
increased, and (iii) the direct or any contingent obligor with respect thereto is not changed;




     (c) Liens for taxes, assessments and other governmental charges or levies not yet delinquent,
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP or secure amounts that are not material to the value of the properties to
which such Liens attach;



     (d) Liens imposed by Law including, without limitation, landlord’s, carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s or other like Liens and maritime liens and privileges, in
each case, arising in the ordinary course of business which are not overdue for a period of more
than 30 days or which are being contested in good faith and by appropriate proceedings diligently
conducted, if adequate reserves with respect thereto are maintained on the books of the applicable
Person, or secure amounts that are not material to the value of the properties to which such Liens
attach;



     (e) maritime attachments and seizures in respect of maritime claims (i) for which a bond,
letter of credit or other security is provided within 45 days of receipt of notice of such
attachment or seizure and (ii) which would not reasonably be expected to have a Material Adverse
Effect;



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



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



     (h) Liens incidental to the conduct of business and the ownership of property and assets
including, without limitation, ground leases, leases of office space, easements, rights-of-way,
restrictions and other similar encumbrances affecting real property which do not in the aggregate
materially detract from the value of the property subject thereto or materially impair the use of
such property in the ordinary operation of the business of the applicable Person;



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



     (j) Liens on property, other assets or shares of stock of a Person at the time such Person
becomes a Subsidiary (or at the time any Borrower or a Subsidiary acquires such property, other
assets or shares of stock, including any acquisition by means of a merger, consolidation or other
business combination transaction with or into any Subsidiary); provided, that such Liens
(i) are not created, incurred or assumed in anticipation of or in connection with such other Person
becoming a Subsidiary (or such acquisition of such property, other assets or stock); and
(ii) do not extend to any assets other than the specific property, other assets or stock



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(plus improvements, accession, proceeds or dividends or distributions in connection with the
original property, other assets or stock) encumbered by such Liens on the date that such property,
other assets or stock is acquired or such Person is merged into or consolidated with any Borrower
or any of its Subsidiaries or otherwise becomes a Subsidiary of a Borrower;




     (k) Liens (i) of a collecting bank arising under Section 4-210 of the UCC on items in the
course of collection and (ii) in favor of a banking institution arising as a matter of law
encumbering deposits (including the right of set-off) and which are within the general parameters
customary in the banking industry;



     (l) Liens in respect of any Synthetic Lease Obligations, but solely to the extent such
Synthetic Lease Obligations do not constitute Priority Debt;



     (m) Liens in respect of the Sale-Leaseback Arrangements, but solely to the extent such
Sale-Leaseback Arrangements do not constitute Priority Debt;



     (n) Liens on assets or property of any Subsidiary (other than any Loan Party) securing
Indebtedness or other obligations of such Subsidiary owing to the Borrowers or another Subsidiary;



     (o) Liens resulting from extensions, renewals or replacements of the Liens permitted by
clauses (b) and (j) provided that (i) there is no increase in the original
principal amount of the debt secured thereby and (ii) any new Lien attaches only to the same
property that was subject to the earlier Lien;



     (p) construction or inchoate Liens securing progress payments on vessels under construction;



     (q) Liens on fixed or capital assets acquired, constructed or improved by the Borrowers or any
Subsidiary to secure or provide for all or a portion of the purchase price or cost of such
acquisition, construction or improvement; provided that (A) such Liens and the Indebtedness
secured thereby are incurred within 180 days prior to or within 180 days after such acquisition or
the completion of such acquisition, construction or improvement, (B) the Indebtedness secured
thereby does not exceed by more than a de minimis amount the cost of acquiring, constructing or
improving such fixed or capital assets and (C) such Liens shall not apply to any other property or
assets of the Borrowers or any Subsidiary;



     (r) Liens securing obligations and other liabilities arising in the ordinary course of
business; provided that such obligations and liabilities do not constitute Indebtedness;
and provided further that the aggregate book value of the assets that are subject
to such Liens shall not exceed $10,000,000 at any time; and



     (s) Liens on existing and future assets covered by financing arrangements, including lease
financing arrangements which would be characterized as capitalized leases in accordance with GAAP;
provided, however, that the sum, without duplication, of the aggregate amount of
(A) all Indebtedness secured by any Liens permitted pursuant to this Section 7.01(s)
plus (B) all Indebtedness permitted pursuant to Section 7.02(e) at any one time
outstanding shall not exceed 20% of Consolidated Stockholders’ Equity.



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     7.02. Indebtedness of Subsidiaries. Permit its Subsidiaries that are not Loan Parties to
create, incur, assume or suffer to exist any Indebtedness except:



     (a) Indebtedness outstanding on the date hereof that is described on Schedule 7.02 and
any extension, replacement, renewal, refunding or refinancing thereof (including if an early
buy-out option is exercised in connection with a sale-leaseback arrangement listed on Schedule
7.01, then the subsequent sale-leaseback of such vessel shall be considered a renewal),
provided that the principal amount outstanding at the time of such extension, renewal, refunding or
refinancing is not increased;



     (b) Indebtedness owed to any Loan Party or any Subsidiary;



     (c) Guarantees by a Subsidiary that is not a Loan Party of Indebtedness of another Subsidiary
that is not a Loan Party;



     (d) Indebtedness of a Subsidiary that is not a Loan Party outstanding at the time of its
acquisition by a Loan Party or assumed by such Subsidiary in connection with the acquisition of
assets, provided that (i) such Indebtedness was not incurred in contemplation of becoming a
Subsidiary, and (ii) at the time of such acquisition and after giving effect thereto, no Default or
Event of Default exists or would exist; and



     (e) Indebtedness not otherwise permitted by clauses (a) through (d) to the
extent the aggregate amount of such Indebtedness plus the aggregate amount of all
Indebtedness subject to Liens permitted pursuant to Section 7.01(s), without duplication,
at any one time outstanding does not exceed 20% of Consolidated Stockholders’ Equity.



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



     (a) Investments held by such Borrower or such Subsidiary in the form of cash or Cash
Equivalents;



     (b) Investments by any Borrower or any Subsidiary in any other Borrower or Subsidiary;



     (c) Guarantees not otherwise prohibited hereunder;



     (d) the purchase or other acquisition of more than 50% of the Equity Interests in a Person
(including as a result of a merger or consolidation), or of all or substantially all of the
property of any Person or any business unit of such Person; provided that, with respect to
each purchase or other acquisition made pursuant to this Section 7.03(d) (i) immediately
before and immediately after giving pro forma effect to any such purchase or other acquisition, no
Default or Event of Default shall have occurred and be continuing and (ii) immediately after giving
effect to such purchase or other acquisition, the Company and its Subsidiaries shall be in pro
forma compliance with all of the covenants set forth in Section 7.10, such compliance to be
determined on the basis of the financial information most recently delivered to the Administrative
Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such purchase or
other acquisition had been consummated as of the first day of the fiscal period covered thereby;
and provided, further, that to the extent the total cash and noncash consideration



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(including the fair market value of all Equity Interests issued or transferred to the sellers
thereof, all indemnities, earnouts and other contingent payment obligations to, and the aggregate
amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the
sellers thereof, all write-downs of property and reserves for liabilities with respect thereto and
all assumptions of debt, liabilities and other obligations in connection therewith) paid by or on
behalf of the applicable Borrower and or Subsidiary for any such purchase or other acquisition,
exceeds $100,000,000, the Company shall have delivered to the Administrative Agent and each Lender,
at least five Business Days prior to the date on which any such purchase or other acquisition is to
be consummated, a Compliance Certificate evidencing such pro forma compliance;




     (e) Investments constituting any Equity Interests received in a settlement of debts created in
the ordinary course of business and owed to a Borrower or a Subsidiary; and



     (f) so long as no Default or Event of Default shall have occurred and be continuing,
Investments by any Borrower or any Subsidiary in another Person (other than purchases and
acquisitions permitted pursuant to clause (d) above) and in any joint venture entity;
provided that the aggregate amount of all such Investments at any time outstanding shall
not exceed 10% of Consolidated Total Tangible Assets at such time.



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



     (a) any Subsidiary may merge with (i) any Borrower, provided that such Borrower shall
be the continuing or surviving Person, (ii) any one or more other Subsidiaries, provided
that when any Loan Party is merging with another Subsidiary, such Loan Party shall be the
continuing or surviving Person or (iii) any other Person, provided that such Subsidiary
shall be the continuing or surviving Person or such other Person shall become a Subsidiary; or



     (b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) to any Borrower or to any Subsidiary; provided that if the
transferor in such a transaction is a Loan Party and the transferee is not a Loan Party, such
Disposition shall be subject to the limitations set forth in Section 7.05(f).



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



     (a) Dispositions of assets in the ordinary course of business, including the scrapping, demise
chartering out, time chartering out and bareboat chartering out of any vessel;



     (b) Dispositions of property (i) by any Subsidiary or any Loan Party to any Loan Party; or
(ii) by any Subsidiary that is not a Loan Party to any other Subsidiary or Loan Party;



     (c) Dispositions permitted by Section 7.04;



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     (d) the Sale-Leaseback Arrangements; provided that the aggregate net book value of all
property Disposed pursuant to such Sale-Leaseback Arrangements shall not exceed $200,000,000;



     (e) subject to Section 7.03(f), Dispositions of the Equity Interests or assets of a
Subsidiary in connection with Investments in a joint venture; or



     (f) Dispositions by any Borrower or any of its Subsidiaries not otherwise permitted under this
Section 7.05 (including, without limitation, all sale-leaseback arrangements other than the
Sale-Leaseback Arrangements) and Dispositions by any Borrower or any of its Subsidiaries permitted
pursuant to Section 7.04(b) but subject to the proviso set forth therein; provided
that (i) at the time of such Disposition, no Default shall exist or would result from such
Disposition, (ii) the aggregate net book value of all property Disposed of in reliance on this
clause (f) in any fiscal year shall not exceed 15% of Consolidated Total Assets as of the
end of the immediately preceding fiscal year, and (iii) the aggregate net book value of all
property Disposed of in reliance on this clause (f) during the term of this Agreement shall
not exceed 30% of Consolidated Total Assets as of the end of the immediately preceding fiscal
quarter; and provided, further, that the Company or any Domestic Subsidiary may
make a Disposition of assets (other than sale-leasebacks), and the assets subject to such
Disposition shall not be subject to or included in the foregoing limitation and computation
contained in this clause (f), to the extent that the net proceeds from such Disposition are
within 365 days of such Disposition reinvested in tangible assets used or to be used in the
existing business of the Company or any Domestic Subsidiary, including the refurbishment of
existing or new vessels;


and provided, further, however, that any Disposition pursuant to
clauses (a), (d) and (f) shall be for fair market value.




     7.06. Equity Interests. No Subsidiary shall issue, sell or dispose of any of its Equity
Interests (other than directors’ qualifying shares or shares which are effectively controlled by
the Company) except to the Company or another Subsidiary or as permitted by Sections 7.03,
7.04 or 7.05.



     7.07. Change in Nature of Business. Engage to any material extent in any line of business
other than those lines of business conducted by the Borrowers and their Subsidiaries on the date
hereof and any business reasonably related or incidental thereto.



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



     7.09. Burdensome Agreements. Enter into any Contractual Obligation (other than this Agreement
or any other Loan Document) that limits the ability (a) of any Loan Party to make Restricted
Payments to any other Loan Party, (b) of any Loan Party to Guarantee the Obligations of any Loan
Party or (c) of any Loan Party to create, incur, assume or suffer to exist Liens on



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property of such Person to secure the Obligations of any Loan Party; provided that (i)
the foregoing shall not apply to restrictions and conditions (v) imposed by applicable laws, rules
or regulations, (w) existing on the date hereof under the Note Purchase Agreements (or to
restrictions and conditions contained in the documentation for other Indebtedness that are no more
restrictive than such restrictions and conditions contained in the Note Purchase Agreements), (x)
requiring the grant of a Lien to secure an obligation of such Person solely if and to the extent a
Lien is granted to secure another obligation of such Person, subject to the last sentence of this
Section 7.09, (y) imposed by any joint venture, partnership or similar arrangement to which
any Loan Party is a party but solely to the extent that such restrictions or conditions relate to
such Loan Party’s ownership interests in the Equity Interests or assets of such joint venture,
partnership or similar arrangement, or (z) identified on Schedule 7.09 (but shall apply to
any amendment or modification expanding the scope of any such restriction or condition), (ii) the
foregoing shall not apply to customary restrictions and conditions contained in agreements relating
to the sale of any asset or a Subsidiary pending such sale; provided such restrictions and
conditions apply only to the asset or Subsidiary that is to be sold and such sale is permitted
hereunder, and (iii) the foregoing shall not apply to (A) restrictions or conditions imposed by any
agreement relating to obligations secured by Liens permitted by this Agreement if such restrictions
or conditions apply only to the property or assets securing such obligations and (B) customary
provisions in leases restricting the assignment thereof. In the event a Loan Party incurs any
Indebtedness that requires the grant of a Lien to secure obligations thereunder if a Lien is
granted to secure another obligation of such Loan Party, at the time such Lien is granted to secure
any of such Indebtedness, then the relevant Loan Parties and the Administrative Agent, and the
Required Lenders, to the extent necessary, will make effective provisions whereby the Obligations
contemporaneously will be secured by such Lien, equally and ratably with all such other
Indebtedness so secured.




     7.10. Financial Covenants. (a) Consolidated Funded Indebtedness to Capitalization
Ratio. Permit the Consolidated Funded Indebtedness to Capitalization Ratio as of the end of
any fiscal quarter of the Company to be greater than 0.55:1.00.



     (b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage
Ratio as of the end of any fiscal quarter of the Company to be less than 3.00:1.00.



     7.11. Amendment, Etc. of Indebtedness. Amend, modify or change any term or condition of any
Note Purchase Agreement in any manner that would result in (a) a reduction of the requirement that
Priority Debt shall not exceed 20% of the Consolidated Net Worth (as defined in the applicable Note
Purchase Agreement), (b) changes to the definition of Consolidated Net Worth (as defined in the
applicable Note Purchase Agreement), or (c) further restrictions on the ability of the Borrowers to
grant Liens as security for the Loans, in each case without the prior written consent of the
Administrative Agent and the Required Lenders.



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ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




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



     (a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as
required to be paid herein, any amount of principal of any Loan or any L/C Obligation, or (ii)
within five days after the same becomes due, any interest on any Loan or on any L/C Obligation, any
fee due hereunder, or any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. (i) Any Borrower fails to perform or observe any term,
covenant or agreement contained in any of Section 6.01, 6.02, 6.03,
6.05, 6.10 or 6.11 or Article VII or (ii) any of the Guarantors
fails to perform or observe any term, covenant or agreement contained in any Guaranty; or



     (c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or
agreement (not specified in Section 8.01(a) or (b) above) contained in any Loan
Document on its part to be performed or observed and such failure continues for 30 days after the
earlier to occur of (i) the date on which a Responsible Officer of the Company obtains actual
knowledge thereof or (ii) the date on which written notice thereof shall have been received by the
Company from the Administrative Agent; or



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



     (e) Cross-Default. Any Loan Party or any Subsidiary thereof (A) fails to make any
payment when due after giving effect to any applicable grace period (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness (other than
Indebtedness hereunder), or Guarantee thereof, having an aggregate principal amount (including
undrawn committed or available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than $25,000,000, or (B) fails to observe or
perform any other agreement or condition relating to any such Indebtedness, or Guarantee thereof,
or contained in any instrument or agreement evidencing, securing or relating thereto, or any other
event occurs, the effect of which default or other event is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of any Guarantee thereof (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause,
with the giving of notice if required, such Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such
Guarantee to become payable or cash collateral in respect thereof to be demanded; or



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



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



     (h) Judgments. There is entered against any Loan Party or any Subsidiary thereof (i)
one or more final and unsatisfied judgments or orders for the payment of money in an aggregate
amount (as to all such judgments and orders) exceeding $25,000,000 (to the extent not covered by
independent third-party insurance that has been notified of the potential claim and does not
dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in
either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order,
or (B) there is a period of 60 consecutive days during which a stay of enforcement of such judgment
or order, by reason of a pending appeal or otherwise, is not in effect; or



     (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of any Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $5,000,000, or (ii) any Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $5,000,000; or



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



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



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



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



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



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



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


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




     8.03. Application of Funds. After the exercise of remedies provided for in Section
8.02 (or after the Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set forth in the proviso
to Section 8.02), any amounts received on account of the Obligations shall, subject to the
provisions of Sections 2.17 and 2.18, be applied by the Administrative Agent in the
following order:



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



     Second, to payment of that portion of the Obligations constituting accrued and unpaid
fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to
the respective Lenders and the L/C Issuer (including fees and time charges for attorneys who may be
employees of any Lender or the L/C Issuer) and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause Second payable
to them;



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



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



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections
2.03 and 2.17; and



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


Subject to Sections 2.03(c) and 2.17, amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on
deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired,
such remaining amount shall be applied to the other Obligations, if any, in the order set forth
above.




ARTICLE IX.

ADMINISTRATIVE AGENT



     9.01. Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and no Borrower nor any other Loan Party shall have rights as a third party
beneficiary of any of such provisions.



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



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



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



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



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



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



     (e) The Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with this
Agreement or any other Loan Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.



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



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any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.




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



     9.06. Resignation of Administrative Agent. The Administrative Agent may at any time give
notice of its resignation to the Lenders, the L/C Issuer and the Borrower Agent. Upon receipt of
any such notice of resignation, the Required Lenders shall have the right, in consultation with the
Borrowers, to appoint a successor, which shall be a financial institution with an office in the
United States, or an Affiliate of any such financial institution with an office in the United
States. If no such successor shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the retiring Administrative Agent gives notice of
its resignation, then the retiring Administrative Agent may on behalf of the Lenders and the L/C
Issuer, appoint a successor Administrative Agent meeting the qualifications set forth above;
provided that if the Administrative Agent shall notify the Borrower Agent and the Lenders
that no qualifying Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (a) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the L/C Issuer under any of the Loan Documents, the retiring Administrative Agent shall
continue to hold such collateral security until such time as a successor Administrative Agent is
appointed) and (b) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and the L/C Issuer
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrowers and such
successor. After the retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect
for the benefit of such retiring Administrative Agent, its sub-agents and their respective Related
Parties in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance



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




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



     9.08. No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of the
Bookrunners, Arrangers, Documentation Agent or Syndication Agents listed on the cover page hereof
shall have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or the L/C
Issuer hereunder.



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



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



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make





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such payments to the Administrative Agent and, if the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative
Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent
under Sections 2.09 and 10.04.




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



     9.10. Guaranty Matters. The Lenders and the L/C Issuer irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release any Guarantor from its
obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a
transaction permitted hereunder. Upon request by the Administrative Agent at any time, the Required
Lenders will confirm in writing the Administrative Agent’s authority to release any Guarantor from
its obligations under the Guaranty pursuant to this Section 9.10.



ARTICLE X.

MISCELLANENOUS



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



     (a) waive any condition set forth in Section 4.01(a), without the written consent of
each Lender;



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



     (c) postpone any date fixed by this Agreement or any other Loan Document for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under
such other Loan Document without the written consent of each Lender directly affected thereby;



     (d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01)
any fees or other amounts payable hereunder or under any other Loan Document without the written
consent of each Lender directly affected thereby; provided, however, that only the
consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or
to waive any obligation of the Borrowers to pay interest or Letter of Credit Fees at the Default
Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if
the effect



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of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to
reduce any fee payable hereunder;




     (e) change (i) Section 2.13 or Section 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each Lender or (ii)
the order of application of any reduction in the Commitments or any prepayment of Loans among the
Facilities from the application thereof set forth in the applicable provisions of Section
2.05(c) or 2.06(b), respectively, in any manner that materially and adversely affects
the Lenders under a Facility without the written consent of (i) if such Facility is the Term
Facility, the Required Term Lenders and (ii) if such Facility is the Revolving Credit Facility, the
Required Revolving Lenders;



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



     (g) release all or substantially all of the value of the Guaranty, without the written consent
of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted
pursuant to Section 9.10 (in which case such release may be made by the Administrative
Agent acting alone); or



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


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






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




     (i) if to any Borrower, the Administrative Agent, the L/C Issuer or the Swing Line
Lender, to the address, telecopier number, electronic mail address or telephone number
specified for such Person on Schedule 10.02 (including, as appropriate, notices
delivered solely to the Person designated by a Lender on its Administrative Questionnaire
then in effect for the delivery of notices that may contain material non-public information
relating to the Borrowers); and




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


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




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



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



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



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



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



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resulting from the reliance by such Person on each notice purportedly given by or on behalf of
any Borrower. All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.




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



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



     10.04. Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses. The Borrowers
jointly and severally shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, the Arrangers and their Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent and MLPF&S), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the L/C Issuer in connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and
disbursements of any counsel for the Administrative



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Agent, any Lender or the L/C Issuer), and shall pay all fees and time charges for attorneys
who may be employees of the Administrative Agent, any Lender or the L/C Issuer, in connection with
the enforcement or protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Section, or (B) in connection with Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of Credit.




     (b) Indemnification by the Borrowers. The Borrowers jointly and severally shall
indemnify the Administrative Agent (and any sub-agent thereof), each Lender, the Arrangers and the
L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called
an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses (including the fees, charges and disbursements of
any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all
fees and time charges and disbursements for attorneys who may be employees of any Indemnitee,
incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower
or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective obligations hereunder
or thereunder or the consummation of the transactions contemplated hereby or thereby, or, in the
case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the
administration of this Agreement and the other Loan Documents (including in respect of any matters
addressed in Section 3.01), (ii) any Loan or Letter of Credit or the use or proposed use of
the proceeds therefrom (including any refusal by the L/C Issuer to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of
Hazardous Materials on or from any property owned or operated by any Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by any Borrower or any other Loan Party or any of such Borrower’s or
such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is
a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by any
Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s
obligations hereunder or under any other Loan Document, if such Borrower or such Loan Party has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction.



     (c) Reimbursement by Lenders. To the extent that any Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related
Party of any of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable unreimbursed expense or



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indemnity payment is sought) of such unpaid amount, provided that the unreimbursed
expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent (or any such sub-agent) or the L/C Issuer
in its capacity as such, or against any Related Party of any of the foregoing acting for the
Administrative Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The
obligations of the Lenders under this subsection (c) are subject to the provisions of
Section 2.12(d).




     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, no Borrower shall assert, and each Borrower hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the
proceeds thereof. No Indemnitee referred to in subsection (b) above shall be liable for
any damages arising from the use by unintended recipients of any information or other materials
distributed to such unintended recipients by such Indemnitee through telecommunications, electronic
or other information transmission systems in connection with this Agreement or the other Loan
Documents or the transactions contemplated hereby or thereby other than for direct or actual
damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined
by a final and nonappealable judgment of a court of competent jurisdiction.



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



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



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



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     10.06. Successors and Assigns. (a) Successors and Assigns Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower nor any Loan Party may
assign or otherwise transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer
any of its rights or obligations hereunder except (i) to an assignee in accordance with the
provisions of Section 10.06(b), (ii) by way of participation in accordance with the
provisions of Section 10.06(d), or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of Section 10.06(f) (and any other attempted
assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the
Related Parties of each of the Administrative Agent, the L/C Issuer and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.



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




     (i) Minimum Amounts.




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




     (B) in any case not described in subsection (b)(i)(A) of this Section,
the aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than (1) $10,000,000, in the case of any assignment in respect of the Revolving
Credit Facility, or (2) in the case of any assignment in respect of the Term
Facility, (x) $5,000,000 or (y) if such Lender is concurrently making an assignment
in respect of the Revolving Credit Facility, an amount less than $5,000,000,
provided that such amount is equal to the same percentage of such Lender’s
Commitment under the Revolving Credit Facility concurrently being assigned, unless
each of the Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower Agent otherwise consents (each such consent not to
be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and



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concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met;




     (ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement with respect to the Loans or the Commitment assigned, except that this
clause (ii) shall not (A) apply to the Swing Line Lender’s rights and obligations in
respect of Swing Line Loans or (B) prohibit any Lender from assigning all or a portion of
its rights and obligations among separate Facilities on a non-pro rata basis;




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




     (A) the consent of the Borrower Agent (such consent not to be unreasonably
withheld or delayed in the case of assignments to Eligible Assignees and in all
other cases at the Borrower Agent’s discretion) shall be required unless (1) an
Event of Default has occurred and is continuing at the time of such assignment or
(2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
provided that the Borrower Agent shall be deemed to have consented to any
such assignment unless it shall object thereto by written notice to the
Administrative Agent within ten (10) Business Days after having received notice
thereof;




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




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




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




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500 to be paid by the assignee;
provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee,



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if it is not a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.




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




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


Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Upon request, the Borrowers (at their expense) shall execute and deliver a Note to the
assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in accordance with
Section 10.06(d).




     (c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower (and such agency being solely for tax purposes), shall maintain at the



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Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Lenders, and the Commitments of, and
principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. In addition, the
Administrative Agent shall maintain on the Register information regarding the designation, and
revocation of designation, of any Lender as a Defaulting Lender. The Register shall be available
for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.




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



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



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



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its obligations hereunder or substitute any such pledgee or assignee for such Lender as a
party hereto.




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



     10.07. Treatment of Certain Information; Confidentiality. Each of the Administrative Agent,
the Lenders and the L/C Issuer agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and
representatives (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement containing provisions substantially the same as those of
this Section, to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.16(c), or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to any Borrower and
its obligations, (g) with the consent of the Borrowers or (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this Section or



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(ii) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their
respective Affiliates on a nonconfidential basis from a source other than a Borrower.




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



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



     10.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each
Lender, the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and
from time to time, to the fullest extent permitted by applicable law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final, in whatever currency) at
any time held and other obligations (in whatever currency) at any time owing by such Lender, the
L/C Issuer or any such Affiliate to or for the credit or the account of any Loan Party against any
and all of the obligations of such Loan Party now or hereafter existing under this Agreement or any
other Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or
the L/C Issuer shall have made any demand under this Agreement or any other Loan Document and
although such obligations of such Loan Party may be contingent or unmatured or are owed to a branch
or office of such Lender or the L/C Issuer different from the branch or office holding such deposit
or obligated on such indebtedness; provided, that in the event that any Defaulting Lender
shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately
to the Administrative Agent for further application in accordance with the provisions of
Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender from
its other funds and deemed held in trust for the benefit of the Administrative Agent and the
Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a
statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to
which it exercised such right of setoff. The rights of each Lender, the L/C Issuer and their
respective Affiliates under this Section are in addition to other rights and remedies (including
other rights of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have.
The rights of each Lender, the L/C Issuer and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the L/C
Issuer or their respective Affiliates may have. Each Lender and the L/C Issuer agrees to notify
the Borrowers and the Administrative Agent promptly after any



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such setoff and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.




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



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



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



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



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such provision in any other jurisdiction. Without limiting the foregoing provisions of this
Section 10.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in
good faith by the Administrative Agent, the L/C Issuer or the Swing Line Lender, as applicable,
then such provisions shall be deemed to be in effect only to the extent not so limited.




     10.13. Replacement of Lenders. If any Lender requests compensation under Section
3.05, or if any Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any
Lender is a Defaulting Lender, or if any Lender has failed to consent to a proposed amendment,
waiver, discharge or termination which pursuant to the terms of Section 10.01 requires the
consent of all of the Lenders affected and with respect to which the Required Lenders shall have
granted their consent, then the Borrowers may, at their sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 10.06), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:



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



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



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



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



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



     10.14. Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO
CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW).



     (a) SUBMISSION TO JURISDICTION. EACH BORROWER IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT



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OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AGAINST ANY BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




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



     (c) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.



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



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     10.16. No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby (including in connection with any amendment, waiver or other
modification hereof or of any other Loan Document), each Borrower acknowledges and agrees, and
acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length
commercial transactions between the Borrowers and their respective Affiliates, on the one hand, and
the Administrative Agent and the Arrangers, on the other hand, (B) each Borrower has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C)
each Borrower is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and each Arranger is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting
as an advisor, agent or fiduciary for any Borrower or any of its Affiliates, or any other Person
and (B) neither the Administrative Agent nor any Arranger has any obligation to any Borrower or any
of its Affiliates with respect to the transactions contemplated hereby except those obligations
expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent and
the Arrangers and their respective Affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Borrowers and their respective Affiliates, and
neither the Administrative Agent nor any Arranger has any obligation to disclose any of such
interests to any Borrower or any of its Affiliates. To the fullest extent permitted by law, each
Borrower hereby waives and releases any claims that it may have against the Administrative Agent
and any Arranger with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.



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



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



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     10.19. Transitional Arrangements. (a) Prior Credit Agreement Superseded. This
Agreement shall on the Closing Date amend and restate the Prior Credit Agreement in its entirety,
except as provided in this Section 10.19. On the Closing Date, the rights and obligations
of the parties evidenced by the Prior Credit Agreement shall be evidenced by the Agreement and the
other Loan Documents, and the “Swing Line Loans”, as defined in the Prior Credit Agreement shall be
converted to Swing Line Loans as defined herein.



     (b) Interest and Fees Under Superseded Agreement. All interest and fees and expenses,
if any, owing or accruing under or in respect of the Prior Credit Agreement through the Closing
Date shall be calculated as of the Closing Date (pro rated in the case of any fractional periods),
and shall be paid on the Closing Date. Commencing on the Closing Date, the commitment fee shall be
payable by the Borrowers to the Administrative Agent for the account of the Lenders in accordance
with Section 2.09. 



[Remainder of page intentionally left blank.]




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



	 	 	 	 	 
	 	TIDEWATER INC.

 	 
	 	By:  	/s/ Quinn P. Fanning
 	 
	 	 	Name:  	Quinn P. Fanning 	 
	 	 	Title:  	Executive Vice President and


Chief Financial Officer 	 
	 
	 	CAJUN ACQUISITIONS, L.L.C.

GULF FLEET SUPPLY VESSELS, L.L.C.

HILLIARD OIL & GAS, INC.

JACKSON MARINE, L.L.C.

JAVA BOAT CORPORATION 

POINT MARINE, L.L.C.

QUALITY SHIPYARDS, L.L.C.

S.O.P., INC.

SEAFARER BOAT, L.L.C.

T. BENETEE, L.L.C.

TIDEWATER OFFSHORE (GP-1984), INC.

TIDEWATER MARINE, L.L.C.

TIDEWATER MARINE ALASKA, INC.

TIDEWATER MARINE SAKHALIN, L.L.C.

TIDEWATER MARINE SERVICE, L.L.C.

TIDEWATER MARINE WESTERN, INC.

TIDEWATER MEXICO HOLDING, L.L.C.

TT BOAT CORPORATION

TWENTY GRAND (BRAZIL), L.L.C.

TWENTY GRAND MARINE SERVICE, L.L.C.

TWENTY GRAND OFFSHORE, L.L.C.

ZAPATA GULF MARINE, L.L.C.

ZAPATA GULF PACIFIC, L.L.C.

 	 
	 	By:  	/s/ Quinn P. Fanning
 	 
	 	 	Name:  	Quinn P. Fanning 	 
	 	 	Title:  	Treasurer 	 
	 



(Signature Page to Credit Agreement)



 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	/s/ Judith A. Huckins
 	 
	 	 	Name:  	Judith A. Huckins 	 
	 	 	Title:  	Vice President 	 
	 
	 	BANK OF AMERICA, N.A., as a Lender, L/C Issuer and

Swing Line Lender

 	 
	 	By:  	/s/ Judith A. Huckins
 	 
	 	 	Name:  	Judith A. Huckins 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Co-Syndication

Agent and a Lender

 	 
	 	By:  	/s/ Corwin Dupree
 	 
	 	 	Name:  	Corwin Dupree 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Credit Agreement)



 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., as a Co-Syndication

Agent and a Lender

 	 
	 	By:  	/s/ Corbin M. Womac
 	 
	 	 	Name:  	Corbin M. Womac 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Credit Agreement)



 









 





	 	 	 	 	 
	 	DNB NOR BANK ASA, as a Co-Syndication 

Agent and
a Lender

 	 
	 	By:  	/s/ Barbara Gronquist
 	 
	 	 	Name:  	Barbara Gronquist 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	By:  	                                              /s/ Stian Løvseth
 	 
	 	 	Name:  	Stian Løvseth 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Credit Agreement)



 









 





	 	 	 	 	 
	 	COMPASS BANK, as the Documentation Agent 

and a
Lender

 	 
	 	By:  	/s/ Stuart Murray
 	 
	 	 	Name:  	Stuart Murray 	 
	 	 	Title:  	Senior Vice President 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., 

as a
Lender

 	 
	 	By:  	/s/ William S. Rogers
 	 
	 	 	Name:  	William S. Rogers 	 
	 	 	Title:  	Authorized Signatory 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	WHITNEY NATIONAL BANK, as a Lender

 	 
	 	By:  	/s/ Kevin C. Ericksen
 	 
	 	 	Name:  	Kevin C. Ericksen 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By:  	/s/ Edward B. Hanson
 	 
	 	 	Name:  	Edward B. Hanson 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	REGIONS BANK, as a Lender

 	 
	 	By:  	/s/ William B. Provosty
 	 
	 	 	Name:  	William B. Provosty 	 
	 	 	Title:  	Vice President 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	AMEGY BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Ashley Sloan
 	 
	 	 	Name:  	Ashley Sloan 	 
	 	 	Title:  	Assistant Vice President 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY, as a Lender

 	 
	 	By:  	/s/ Steve Ryan
 	 
	 	 	Name:  	Steve Ryan 	 
	 	 	Title:  	Senior Vice President 	 
	 



(Signature Page to Credit Agreement)








 









 











	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A., as a Lender

 	 
	 	By:  	/s/ Ryan Vetsch
 	 
	 	 	Name:  	Ryan Vetsch 	 
	 	 	Title:  	Authorized Signatory 	 
	 



(Signature Page to Credit Agreement)



 









 




The schedules and exhibits to the Amended Credit Agreement have been omitted from the Amended
Credit Agreement as filed. The registrant agrees to furnish a copy of such omitted schedules and
exhibits supplementally to the Commission upon request.