Exhibit 10.41





Exhibit 10.41




EXECUTION VERSION




Published CUSIP Number (Deal): 05560KAA4




Published CUSIP Number (Revolver): 05560KAB2




CREDIT AGREEMENT




Dated as of November 30, 2010




among




BMC SOFTWARE, INC.,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




JPMORGAN CHASE BANK N.A.

as Syndication Agent




BARCLAYS BANK PLC, DEUTSCHE BANK AG NEW YORK BRANCH,

and

THE ROYAL BANK OF SCOTLAND PLC

as Co-Documentation Agents




and




The Other Lenders Party Hereto




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

as

Sole Lead Arranger and Sole Book Manager




 


 









 







TABLE OF CONTENTS




			
	Section
	 	Page






Table of Contents




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	18	 
	1.03 Accounting Terms
	 	 	19	 
	1.04 Rounding
	 	 	19	 
	1.05 Times of Day
	 	 	20	 
	1.06 Letter of Credit Amounts
	 	 	20	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	20	 
	 
	 	 	 	 
	2.01 Committed Loans
	 	 	20	 
	2.02 Borrowings, Conversions and Continuations of Committed Loans
	 	 	20	 
	2.03 Letters of Credit
	 	 	21	 
	2.04 Swing Line Loans
	 	 	28	 
	2.05 Prepayments
	 	 	30	 
	2.06 Termination or Reduction of Commitments
	 	 	31	 
	2.07 Repayment of Loans
	 	 	31	 
	2.08 Interest
	 	 	32	 
	2.09 Fees
	 	 	32	 
	2.10 Computation of Interest and Fees
	 	 	33	 
	2.11 Evidence of Debt
	 	 	33	 
	2.12 Payments Generally; Administrative Agent’s Clawback
	 	 	33	 
	2.13 Sharing of Payments by Lenders
	 	 	35	 
	2.14 Increase in Commitments
	 	 	35	 
	2.15 Cash Collateral
	 	 	36	 
	2.16 Defaulting Lenders
	 	 	37	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	39	 
	 
	 	 	 	 
	3.01 Taxes
	 	 	39	 
	3.02 Illegality
	 	 	42	 
	3.03 Inability to Determine Rates
	 	 	43	 
	3.04 Increased Costs
	 	 	43	 
	3.05 Compensation for Losses
	 	 	44	 
	3.06 Mitigation Obligations
	 	 	45	 
	3.07 Survival
	 	 	45	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	45	 
	 
	 	 	 	 
	4.01 Conditions of Initial Credit Extension
	 	 	45	 
	4.02 Conditions to all Credit Extensions
	 	 	47	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	47	 
	 
	 	 	 	 
	5.01 Existence, Qualification and Power
	 	 	47	 
	5.02 Authorization; No Contravention
	 	 	47	 
	5.03 Governmental Authorization; Other Consents
	 	 	48	 





 


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	 	 	Page	 
	 
	 	 	 	 
	5.04 Binding Effect
	 	 	48	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	48	 
	5.06 Litigation
	 	 	48	 
	5.07 Environmental Compliance
	 	 	48	 
	5.08 Taxes
	 	 	48	 
	5.09 ERISA
	 	 	49	 
	5.10 Margin Regulations; Investment Company Act
	 	 	49	 
	5.11 Disclosure
	 	 	49	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	49	 
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	49	 
	6.02 Certificates; Other Information
	 	 	50	 
	6.03 Notices
	 	 	51	 
	6.04 Payment of Obligations
	 	 	51	 
	6.05 Preservation of Existence, Etc
	 	 	51	 
	6.06 Maintenance of Properties
	 	 	51	 
	6.07 Maintenance of Insurance
	 	 	51	 
	6.08 Compliance with Laws
	 	 	52	 
	6.09 Books and Records
	 	 	52	 
	6.10 Inspection Rights
	 	 	52	 
	6.11 Use of Proceeds
	 	 	52	 
	6.12 Additional Guarantors
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	52	 
	 
	 	 	 	 
	7.01 Liens
	 	 	52	 
	7.02 Investments
	 	 	54	 
	7.03 Subsidiary Indebtedness
	 	 	55	 
	7.04 Fundamental Changes
	 	 	55	 
	7.05 Sale and Lease-Back Transactions
	 	 	56	 
	7.06 Restricted Payments
	 	 	56	 
	7.07 Financial Covenants
	 	 	57	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	57	 
	 
	 	 	 	 
	8.01 Events of Default
	 	 	57	 
	8.02 Remedies Upon Event of Default
	 	 	58	 
	8.03 Application of Funds
	 	 	59	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	60	 
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	60	 
	9.02 Rights as a Lender
	 	 	60	 
	9.03 Exculpatory Provisions
	 	 	60	 
	9.04 Reliance by Administrative Agent
	 	 	61	 
	9.05 Delegation of Duties
	 	 	61	 
	9.06 Resignation of Administrative Agent
	 	 	61	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	62	 
	9.08 No Other Duties, Etc
	 	 	62	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	62	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	63	 
	 
	 	 	 	 
	10.01 Amendments, Etc
	 	 	63	 
	10.02 Notices; Effectiveness; Electronic Communication
	 	 	64	 





 


ii 









 





	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	10.03 No Waiver; Cumulative Remedies; Enforcement
	 	 	66	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	67	 
	10.05 Payments Set Aside
	 	 	68	 
	10.06 Successors and Assigns
	 	 	69	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	72	 
	10.08 Right of Setoff
	 	 	73	 
	10.09 Interest Rate Limitation
	 	 	74	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	74	 
	10.11 Survival of Representations and Warranties
	 	 	74	 
	10.12 Severability
	 	 	74	 
	10.13 Replacement of Lenders
	 	 	74	 
	10.14 Governing Law; Jurisdiction; Etc
	 	 	75	 
	10.15 Waiver of Jury Trial
	 	 	76	 
	10.16 No Advisory or Fiduciary Responsibility
	 	 	76	 
	10.17 Electronic Execution of Assignments and Certain Other Documents
	 	 	77	 
	10.18 USA PATRIOT Act
	 	 	77	 
	10.19 ENTIRE AGREEMENT
	 	 	77	 
	SIGNATURES
	 	 	S-1	 





 


iii 









 





	 	 	 	 	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	2.01	 	Commitments and Applicable Percentages
	7.01	 	Existing Liens
	7.03	 	Existing Indebtedness
	10.02	 	Administrative Agent’s Office; Certain Addresses for Notices
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 

	 	Form of
	 
	 	 	 	 
	A	 
	Committed Loan Notice
	B
	 

	Swing Line Loan Notice
	C
	 

	Note
	D
	 

	Compliance Certificate
	E-1
	 

	Assignment and Assumption
	E-2
	 

	Administrative Questionnaire
	F
	 

	Opinion of Counsel to the Borrower





 


iv 









 





CREDIT AGREEMENT




This CREDIT AGREEMENT (“Agreement”) is entered into as of November 30, 2010, among BMC
SOFTWARE, INC., a Delaware corporation (the “Borrower”), each lender from time to time
party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK
OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.



The Borrower has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein.



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



ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS





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



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



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



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



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




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




“Agreement” means this Credit Agreement.



“Applicable Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s
Commitment at such time, subject to adjustment as provided in Section 2.16. 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 Aggregate Commitments
have expired, then the Applicable Percentage of each Lender shall be determined based on the
Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent
assignments. The initial Applicable Percentage of each Lender 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.


 


1









 





“Applicable Rate” means, from time to time, the following percentages per annum, based
upon the Debt Rating as set forth below.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate	 
	 	 	 	 	 	 	 	 	Eurodollar	 	 	 	 
	 	 	 	 	 	 	 	 	Rate +	 	 	 	 
	Pricing	 	 	 	Commitment	 	 	Letters of	 	 	 	 
	Level	 	Debt Rating	 	Fee	 	 	Credit	 	 	Base Rate +	 
	1
	 	A-/A3	 	 	0.15	%	 	 	1.25	%	 	 	0.25	%
	2
	 	BBB+/Baa1	 	 	0.20	%	 	 	1.50	%	 	 	0.50	%
	3
	 	BBB/Baa2	 	 	0.25	%	 	 	1.75	%	 	 	0.75	%
	4
	 	BBB-/Baa3	 	 	0.35	%	 	 	2.00	%	 	 	1.00	%
	5
	 	BB+/Bal or worse or no Debt Rating	 	 	0.45	%	 	 	2.25	%	 	 	1.25	%







“Debt Rating” means, as of any date of determination, the rating as determined
by either S&P or Moody’s (collectively, the “Debt Ratings”) of the Borrower’s
non-credit-enhanced, senior unsecured long-term debt; provided that (a) if the
respective Debt Ratings issued by the foregoing rating agencies differ by one level, then
the Pricing Level for the higher of such Debt Ratings shall apply (with the Debt Rating for
Pricing Level 1 being the highest and the Debt Rating for Pricing Level 5 being the lowest);
(b) if there is a split in Debt Ratings of more than one level, then the Pricing Level that
is one level lower than the Pricing Level of the higher Debt Rating shall apply; (c) if the
Borrower has only one Debt Rating because a Debt Rating has been withdrawn or withheld, the
Pricing Level that is one level lower than that of such Debt Rating shall apply; (d) if the
Borrower has only one Debt Rating because a rating agency has ceased to be in the business
of furnishing corporate debt ratings or otherwise ceases to exist, then the Debt Rating of
the remaining rating agency shall be applicable and the Borrower and the Lenders shall
negotiate in good faith to substitute a mutually agreeable alternative rating agency; and
(e) if the Borrower does not have any Debt Rating, Pricing Level 5 shall apply.



Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the
certificate delivered pursuant to Section 4.01(a)(vii). Thereafter, each change in the
Applicable Rate resulting from a publicly announced change in the Debt Ratings shall be effective
during the period commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change.



“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.



“Arranger” means Merrill Lynch, Pierce, Fenner & Smith Incorporated, in its capacity
as sole lead arranger and sole book manager.



“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 assignee (with the consent of any party whose consent is required by Section
10.06(b)), and accepted by the Administrative Agent, in substantially the form of Exhibit
E-1 or any other form approved by the Administrative Agent.


 


2









 





“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) with regard to a Sale and Lease-Back
Transaction with respect to
any Principal Property means, at the time of determination, the lesser of (1) the fair market
value of the Principal Property subject to the Sale and Lease-Back Transaction or (2) the present
value of the total net amount of rent required to be paid under such lease during the remaining
term thereof (including any period for which such lease has been extended), discounted at the rate
of interest set forth or implicit in the terms of such lease (or, if not practicable to determine
such rate, the weighted average interest rate per annum borne by all securities then outstanding
under the Borrower’s Indenture dated as of June 4, 2008) compounded semi-annually.



“Audited Financial Statements” means the audited consolidated balance sheet of the
Borrower 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 Borrower and its Subsidiaries, including the notes thereto.



“Availability Period” means the period from and including the Closing Date to the
earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments
pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender
to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to
Section 8.02.




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



“Base Rate”  means for any day a fluctuating rate per annum equal to the
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
one-month Eurodollar Rate plus 1%. 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.




“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.




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




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




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



“Borrowing” means a Committed 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 are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate
Loan, means any such day 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 Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or
obligations of Lenders to fund participations in respect of either thereof (as the context may
require), cash or deposit account balances or, if the 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.


 


3









 





“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 charged with the enforcement, interpretation or
administration thereof or (c) the compliance by any Lender with 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
37.5% or more of the equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a fully-diluted basis
(and taking into account all such securities that such person or group has the right to
acquire pursuant to any option right); or




(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 Borrower cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body.



“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.



“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to
the Borrower pursuant to Section 2.01, (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
or 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.



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


 


4









 






“Committed Loan” has the meaning specified in Section 2.01.



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



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



“Consolidated EBITDA” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a)
the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income
taxes payable by the Borrower and its Subsidiaries for such period, (iii) depreciation and
amortization expense, (iv) any severance, exit costs and related charges incurred in such period,
and (v) all non-cash losses or expenses during such period, including non-cash losses or expenses
related to share based compensation, derivative and hedging activities, amortization and
impairments of long-lived assets (including intangibles and goodwill), restructuring activities and
asset retirement obligations and minus (b) the following to the extent included in
calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits
of the Borrower and its Subsidiaries for such period and (ii) all non-cash gain or income
increasing Consolidated Net Income for such period, including any non-cash gains related to
derivative and hedging activities; provided that if the Borrower or any Subsidiary shall
acquire or dispose of any property having a fair market value (as reasonably determined by the
Borrower) in excess of the Threshold Amount during such period, then Consolidated EBITDA shall be
calculated after giving pro forma effect to such acquisition or disposition, as if such
acquisition or disposition had occurred on the first day of such period; provided
further that with respect to clause (a)(iv) above, the aggregate amount of cash charges for
severance, exit costs and related charges that may be added to Consolidated Net Income to arrive at
Consolidated EBITDA for any period shall not exceed 2.5% of Consolidated EBITDA for such period as
such Consolidated EBITDA is calculated before giving effect to any adjustment pursuant to such
clause (a)(iv).



“Consolidated Funded Indebtedness” means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, without duplication, the sum of (a) all
obligations for borrowed money and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) all obligations arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar
instruments other than unfunded obligations in respect of any of the foregoing provided by the
Borrower or any Subsidiary in the ordinary course of business in support of performance obligations
to customers, (c) Attributable Indebtedness in respect of capital leases and Sale and Lease-Back
Transactions and (d) all Guarantees with respect to outstanding Indebtedness of the types specified
in clauses (a) through (c) above of Persons other than the Borrower or any Subsidiary.



“Consolidated Interest Charges” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the sum of all interest, premium payments, debt discount,
fees, charges and related expenses of the Borrower and its Subsidiaries in connection with borrowed
money (including capitalized interest and including in respect of capital lease obligations) or in
connection with the deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP.



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


 


5









 





“Consolidated Leverage Ratio” means, as (x) of the last day of any fiscal quarter and
(y) the date of any Borrowing, the ratio of (a) Consolidated Funded Indebtedness as of such date to
(b) Consolidated EBITDA for the period of the four prior fiscal quarters most recently ended (in
the case of clause (y), for which financial statements are available).



“Consolidated Net Income” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, the net income of the Borrower and its Subsidiaries for that period
determined in accordance with GAAP.



“Consolidated Net Tangible Assets” means, as of any date on which the Borrower effects
a transaction requiring such Consolidated Net Tangible Assets to be measured hereunder, the
aggregate amount of assets (less applicable reserves) after deducting therefrom (a) all current
liabilities, except for current maturities of long-term debt, the current portion of deferred
revenue and obligations under capital leases; and (b) all intangible assets, to the extent included
in said aggregate amount of assets, all as set forth on the Borrower’s most recent consolidated
balance sheet and computed in accordance with 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.



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




“Debt Rating” has the meaning specified in the definition of “Applicable Rate.”



“Debtor Relief Laws” means the Bankruptcy Code of the United States, all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency or reorganization and 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.



“Default Rate” means an interest rate equal to (i) the Base Rate plus (ii) the
Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum.



“Defaulting Lender” means, subject to Section 2.16(b), any Lender that, as
reasonably 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, (b) has notified the Borrower, or the Administrative Agent that it does not intend to
comply with its funding obligations or has made a public statement to that effect with respect to
its funding obligations hereunder or generally under other agreements in which it commits to extend
credit, (c) has failed, within three Business Days after request by the Administrative Agent or the
Borrower, to confirm in a manner reasonably satisfactory to the Administrative Agent and the
Borrower 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.


 


6









 





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




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



“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any
political subdivision of the United States and is not a Subsidiary of a Foreign Subsidiary.



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



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



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



“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; provided that debt securities which are by the terms pursuant to which such
debt securities are issued are convertible into capital stock shall not be “Equity Interests.”




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



“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).


 


7









 





“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 Base Rate” has the meaning specified in the definition of Eurodollar Rate.



“Eurodollar Rate” means for any Interest Period with respect to a Eurodollar Rate
Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 	 	 
	 

	 	Eurodollar Rate =
	 	Eurodollar Base Rate	 	 
	 

	 	 	1.00 – Eurodollar Reserve Percentage	 	 







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




“Eurodollar Reserve Percentage” means, for any day during any Interest Period, the
reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on
such day, whether or not applicable to any Lender, under regulations issued from time to
time by the FRB for determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to Eurocurrency funding
(currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.



“Eurodollar Rate Committed Loan” means a Committed Loan that bears interest at a rate
based on the definition of “Eurodollar Rate.”


 


8









 





“Eurodollar Rate Loan” means a Committed Loan that bears interest at a rate based on
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
Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the United States
(or any political subdivision thereof) or 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, or by any
other jurisdiction as a result of a present or former connection between the Administrative Agent,
such Lender or L/C Issuer, as the case may be, and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent, such Lender or L/C Issuer having
executed, delivered or performed its obligations or received a payment under, or enforced, this
Agreement or any other Loan Document), (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which the Borrower is located, (c) any backup
withholding tax that is required by the Code to be withheld from amounts payable to a recipient,
(d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower
under Section 10.13), any United States withholding tax that (i) is required to be imposed
on amounts payable to such Foreign Lender pursuant to the Laws in force at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such
Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with
clause (B) of Section 3.01(e)(ii), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a)(ii) or (c), and (e) any Taxes imposed on any “withholdable” payment payable
to such recipient as a result of the failure of such recipient to satisfy the applicable
requirements as set forth in FATCA after December 31, 2012.



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



“FATCA” means Sections 1471 through 1474 of the Code and any regulations or official
interpretations thereof, which, for the avoidance of doubt, does not include private rulings or
other guidance issued to a specific taxpayer.



“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 November 3, 2010, among the Borrower,
the Administrative Agent and the Arranger.


 


9









 





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



“Foreign Subsidiary” means a Subsidiary that is organized under the laws of a
jurisdiction other than any political subdivision of the United States.




“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.



“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 of 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, (ii) to purchase or lease property, securities
or services for the purpose of assuring the obligee in respect of such Indebtedness or the payment
of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial
statement condition or liquidity or level of income or cash flow of the primary obligor so as to
enable the primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness of the payment 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 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.



“Guarantor” means each Subsidiary that has executed and delivered a Subsidiary
Guaranty or a Guaranty Supplement pursuant to Section 7.03 or Section 6.12.


 


10









 





“Guaranty Supplement” means a supplement to the Subsidiary Guaranty, in the form
attached as an exhibit thereto, pursuant to which any Person becomes a Guarantor.



“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.




“Increase Effective Date” has the meaning specified in Section 2.14(d).



“Indebtedness” means, as to any Person at a particular time, without duplication, all
of the following:




(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 arising under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments
other than unfunded obligations in respect of any of the foregoing provided by the Borrower
or any Subsidiary in the ordinary course of business in support of performance obligations
to customers;




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




(d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and, in each
case, not past due for more than 90 days after the date on which such trade account payable
was due unless the payment thereof is being contested in good faith by appropriate
proceedings;




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




(f) obligations under capital leases and Sale and Lease-Back Transactions;




(g) the liquidation value of all redeemable preferred stock of such Person; and




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



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



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


 


11









 






“Information” has the meaning specified in Section 10.07.



“Information Memorandum” means the Borrower’s Confidential Lender Presentation dated
November 4, 2010.



“Initial Guaranty Date” means the first date on which the Subsidiary Guaranty is
executed by all of the Significant Subsidiaries in existence as of such date (and any other
Subsidiaries that the Borrower elects in its discretion to execute and delivery the Subsidiary
Guaranty) and delivered to the Administrative Agent together with documents of the types described
in clauses (iii) through (vi) of Section 4.01(a) relating to the execution
and delivery of such Subsidiary Guaranty.



“Interest Payment Date” means, (a) as to any Loan other than a Base 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 (in the case of any Eurodollar Rate Committed Loan)
converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six
months thereafter, as selected by the Borrower in its Committed Loan Notice, provided that:




(i) 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;




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




(iii) 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 or (b) a loan, advance or capital contribution to, Guarantee or assumption of
Indebtedness 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.




“IRS” means the United States Internal Revenue Service.



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



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


 


12









 





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



“L/C Advance” means, with respect to each Lender, such Lender’s funding of its
participation in any L/C Borrowing in accordance with its Applicable 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 Committed
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 all L/C Borrowings. For purposes of computing the amount available
to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in
accordance with Section 1.06. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.



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



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




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



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



“Letter of Credit Expiration Date” means the day that is seven days prior to the
Maturity Date then in effect (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 $50,000,000. The Letter of
Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.




“Lien” has the meaning specified in Section 7.01.



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


 


13









 





“Loan Documents” means this Agreement, each Note, each Issuer Document, the Subsidiary
Guaranty, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions
of Section 2.15 of this Agreement, and the L/C Fee Letter.



“Loan Parties” means the Borrower and the Guarantors, and “Loan Party” means
any of them.



“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 upon, the operations, financial condition or business of the Borrower and its
Subsidiaries taken as a whole; (b) a material impairment of the rights and remedies of the
Administrative Agent or any Lender under any Loan Document or of the ability of the Borrower 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 the Borrower of any
Loan Document to which it is a party.



“Material Subsidiary” means, at any date of determination, any Subsidiary of the
Borrower that has more than 2.5% of the Consolidated Net Tangible Assets of the Borrower, as of the
date of the Borrower’s most recent consolidated balance sheet.



“Maturity Date” means November 30, 2014; provided, however, that if
such date is not a Business Day, the Maturity Date shall be the next succeeding Business Day.




“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 the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.



“Multiple Employer Plan” means a Plan which has two or more contributing sponsors
(including the 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.




“Non-Guarantor Subsidiary” means a Subsidiary that is not a Guarantor.



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



“Obligations” means all advances to, and debts, liabilities, obligations, covenants
and duties of the Borrower arising under any Loan Document or otherwise with respect to any Loan or
Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and including interest and fees
that accrue after the commencement by or against the Borrower or any Affiliate thereof of any
proceeding under any Debtor Relief Laws, 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
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.


 


14









 





“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 Committed 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 Committed Loans and Swing Line Loans, as the case may be,
occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of such
L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date
and any other changes in the aggregate amount of the L/C Obligations as of such date, including as
a result of any reimbursements by the Borrower of Unreimbursed Amounts.




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




“PBGC” means the Pension Benefit Guaranty Corporation.




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



“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 the 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 the Borrower or any ERISA Affiliate or any
such Plan to which the 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.



“Principal Property” means (i) the Borrower’s principal corporate office (including
any leasehold interest therein) and (ii) any facility with a primary function of distribution of
the Borrower’s products or development (whether now owned or hereafter acquired) which is owned or
leased by the Borrower or any of the Borrower’s Subsidiaries and is located within the United
States of America, unless (as to both (i) and (ii)) the Borrower’s Board of Directors has
determined in good faith that such office or facility is not of material importance to the total
business conducted by the Borrower and the Borrower’s Subsidiaries, taken as a whole; provided,
however, that any office or facility for which the annual lease obligation on the date as of which
the determination is being made is equal to or less than $2.0 million
shall in no event be deemed a Principal Property. With respect to any Sale and Lease-Back
Transaction or series of related Sale and Lease-Back Transactions, the determination of whether any
property is a Principal Property shall be determined by reference to all properties affected by
such transaction or series of transactions.


 


15









 






“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 Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit
Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.



“Required Lenders” means, as of any date of determination, Lenders having more than
50% of the Aggregate Commitments or, 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, Lenders holding in the aggregate more than 50% of the Total Outstandings
(with the aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this
definition); provided that the 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.



“Responsible Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of the Borrower, solely for purposes of the
delivery of incumbency certificates pursuant to Section 4.01, the secretary or any
assistant secretary of the Borrower and, solely for purposes of notices given pursuant to
Article II, any other officer or employee of the Borrower so designated by any of the
foregoing officers in a notice to the Administrative Agent. Any document delivered hereunder that
is signed by a Responsible Officer shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of the Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.



“Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interest of the 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, acquisition,
cancellation or termination of any Equity Interest of the Borrower, or on account of any return of
capital to stockholders, partners or members (or the equivalent Person thereof).



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


 


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“Sale and Lease-Back Transaction” means any arrangement entered into after the date of
this Agreement with any person providing for the leasing by the Borrower or any Subsidiary of the
Borrower
of any Principal Property, whether now owned or hereafter acquired, which Principal Property
has been or is to be sold or transferred by the Borrower or such Subsidiary of the Borrower to such
person.



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



“Significant Subsidiary” means, at any date of determination, a Domestic Subsidiary of
the Borrower that has more than 10% of Consolidated Net Tangible Assets of the Borrower as of such
date.



“Specified Disclosures” means the Borrower’s public filing with the SEC for the fiscal
quarter ended September 30, 2010.



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



“Subsidiary Guaranty” means an unconditional Guarantee of the payment in full in cash
of the Obligations in form and substance reasonably satisfactory to the Administrative Agent that
is executed and delivered by the Significant Subsidiaries pursuant to Section 7.03, as
supplemented from time to time pursuant to Section 6.12.



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



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



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


 


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“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) $25,000,000 and (b)
the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the
Aggregate Commitments.



“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.




“Threshold Amount” means $75,000,000.



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



“Type” means with respect to a Committed 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).



“Wholly-Owned Subsidiary” means (a) any Subsidiary of which all of the outstanding
Equity Interests (other than any directors’ qualifying shares mandated by applicable law), on a
fully-diluted basis, are owned by the Borrower or one or more of the Wholly-Owned Subsidiaries or
are owned by the Borrower and one or more of the Wholly-Owned Subsidiaries or (b) any Subsidiary
that is organized in a foreign jurisdiction and is required by the applicable laws and regulations
of such foreign jurisdiction to be partially owned by the government of such foreign jurisdiction
or individual or corporate citizens of such foreign jurisdiction, provided that the Borrower,
directly or indirectly, owns the remaining Equity Interests in such Subsidiary and, by contract or
otherwise, controls the management and business of such Subsidiary and derives economic benefits of
ownership of such Subsidiary to substantially the same extent as if such Subsidiary were a
Wholly-Owned Subsidiary.



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, (ii) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (iii) the words “hereto,” “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, Exhibits and Schedules shall be construed to refer to Articles
and Sections of, and 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.


 


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



(c) Consolidation of Variable Interest Entities. All references herein to
consolidated financial statements of the Borrower and its Subsidiaries or to the determination of
any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference
shall, in each case, be deemed to include each variable interest entity that the Borrower is
required to consolidate pursuant to FASB ASC 810 as if such variable interest entity were a
Subsidiary as defined herein.



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


 


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




2.02 Borrowings, Conversions and Continuations of Committed Loans.



(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other,
and each continuation of Eurodollar Rate Committed Loans shall be made upon the Borrower’s
irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice
must be received by the Administrative Agent not later than 11:00 a.m. (i) three Business Days
prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate
Committed Loans or of any conversion of Eurodollar Rate Committed Loans to Base Rate Committed
Loans, and (ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each
telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Committed 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 Committed Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a Committed Borrowing,
a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate
Committed 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 Committed Loans to be
borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which
existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest
Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a
Committed
Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or
continuation, then the applicable Committed 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 Committed Loans.
If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
Committed Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will
be deemed to have specified an Interest Period of one month.


 


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



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



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



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




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 Lenders set forth in this Section 2.03, (1) from
time to time on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or any
Subsidiary, and to amend Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit issued for the account of the
Borrower or any


 


21









 






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 Outstandings shall not exceed the Aggregate
Commitments, (y) the aggregate Outstanding Amount of the Committed Loans of any Lender,
plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of
all Swing Line Loans shall not exceed such Lender’s Commitment, and (z) the Outstanding
Amount of the L/C Obligations shall not exceed the Letter of Credit Sublimit. Each request
by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Borrower that the L/C Credit Extension so requested complies with the
conditions set forth in the proviso to the preceding sentence. Within the foregoing limits,
and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have
been drawn upon and reimbursed.




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




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




(B) the expiry date of the requested Letter of Credit would occur after the
Letter of Credit Expiration Date, unless all the 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 the
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 the Letter of Credit in
particular or shall impose upon the L/C Issuer with respect to the Letter of Credit
any restriction, reserve or capital requirement (for which the L/C Issuer is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose
upon the L/C Issuer any unreimbursed loss, cost or expense which was not applicable
on the Closing Date and which the L/C Issuer in good faith deems material to it;




(B) the issuance of the 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,
the Letter of Credit is in an initial stated amount less than $500,000;




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




(E) 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 Borrower or such Lender to
eliminate the L/C Issuer’s actual or potential Fronting Exposure (after giving
effect to Section 2.16(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.


 


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(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 the 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 the Letter of Credit in its
amended form under the terms hereof, or (B) the beneficiary of the Letter of Credit does not
accept the proposed amendment to the Letter of Credit.




(vi) The L/C Issuer shall act on behalf of the 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.




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative
Agent) in the form of a Letter of Credit Application, appropriately completed and signed by
a Responsible Officer. 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 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 reasonably 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 reasonably satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment thereof
(which shall be a Business Day); (C) the nature of the proposed amendment; and (D) such
other matters as the L/C Issuer may require. Additionally, the Borrower shall furnish to
the L/C Issuer and the Administrative Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as
the L/C Issuer or the Administrative Agent may reasonably require.




(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent has received a copy of such Letter of Credit Application from the Borrower and, if
not, the L/C Issuer will provide the Administrative Agent with a copy thereof. Unless the
L/C Issuer has received written notice from any Lender, the Administrative Agent or the
Borrower, at least one
Business Day prior to the requested date of issuance or amendment of the applicable
Letter of Credit, that one or more applicable conditions contained in Article IV
shall not then be satisfied, then, subject to the terms and conditions hereof, the L/C
Issuer shall, on the requested date, issue a Letter of Credit for the account of the
Borrower or 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 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 Lender’s Applicable
Percentage times the amount of such Letter of Credit.


 


23









 






(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 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 Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower
shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the
amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time,
the Administrative Agent shall promptly notify each Lender of the Honor Date, the amount of
the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Lender’s Applicable Percentage thereof. In such event, the Borrower shall be deemed to have
requested a Committed 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 Aggregate Commitments and the conditions set
forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any
notice given by the L/C Issuer or the Administrative Agent pursuant to this Section
2.03(c)(i) may be given by telephone if immediately confirmed in writing;
provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.




(ii) Each Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available (and the Administrative Agent may apply Cash Collateral provided for this
purpose) for the account of the L/C Issuer at the Administrative Agent’s Office in an amount
equal to its Applicable 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 Lender that so makes funds available
shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The
Administrative Agent shall remit the funds so received to the L/C Issuer.




(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
Committed Borrowing of Base Rate Loans because the conditions set forth in Section
4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have
incurred from the L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that
is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with
interest) and shall bear interest at the Default Rate. In such event, each 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.


 


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(iv) Until each Lender funds its Committed 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 Percentage of such amount shall be
solely for the account of the L/C Issuer.




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




(vi) If any 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), then, without limiting the other provisions of this Agreement, the L/C
Issuer shall be entitled to recover from such Lender (acting through the Administrative
Agent), on demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available to the L/C
Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily charged by the
L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan
included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C
Borrowing, as the case may be. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this clause (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 Borrower or otherwise, including proceeds of
Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will
distribute to such Lender its Applicable 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 Lender shall pay to the
Administrative Agent for the account of the L/C
Issuer its Applicable 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.


 


25









 





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




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




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




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




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




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



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



(f) Role of L/C Issuer. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the L/C Issuer shall not have any responsibility to obtain any
document (other than any sight draft, certificates and documents expressly required by the Letter
of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the L/C Issuer, the
Administrative Agent, any of their respective Related Parties nor any correspondent, participant or
assignee of the L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in



 


26









 






connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the
absence of bad faith, gross negligence or willful misconduct; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of the L/C Issuer shall
be liable or responsible for any of the matters described in clauses (i) through (v) of Section
2.03(e); provided, however, that anything in such clauses to the contrary
notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused
by the L/C Issuer’s willful misconduct, bad faith or gross negligence or the L/C Issuer’s willful
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or
proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.



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



(h) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage a Letter of Credit fee (the
“Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate for Letters
of Credit 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 2.04 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 2.16(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.



(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the fee letter dated as of the date
hereof between Bank of America and the Borrower (the “L/C 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 Borrower shall pay directly
to the L/C Issuer for its own account the customary issuance, presentation, amendment and other
processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of
credit as from time to time in effect. Such customary fees and standard costs and charges are due
and payable on demand and are nonrefundable.


 


27









 





(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 Borrower shall be obligated to reimburse the L/C Issuer hereunder for any and
all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that
the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.




2.04 Swing Line Loans.



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



(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer. 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 Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to make such Swing Line
Loan as a result of the limitations set forth in the first proviso to the first sentence of
Section 2.04(a), or (B) that one or more of the applicable conditions specified in
Article IV is not then satisfied, then, subject to the terms and conditions hereof, the
Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line
Loan Notice, make the amount of its Swing Line Loan available to the Borrower at its office by
crediting the account of the Borrower on the books of the Swing Line Lender in immediately
available funds.


 


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(c) Refinancing of Swing Line Loans.




(i) The Swing Line Lender at any time in its sole discretion may request, on behalf of
the Borrower (which hereby irrevocably authorizes the Swing Line Lender to so request on its
behalf), that each Lender make a Base Rate Committed Loan in an amount equal to such
Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such
request shall be made in writing (which written request shall be deemed to be a Committed
Loan Notice for purposes hereof) and in accordance with the requirements of Section
2.02, without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 4.02. The Swing Line Lender
shall furnish the Borrower with a copy of the applicable Committed Loan Notice promptly
after delivering such notice to the Administrative Agent. Each Lender shall make an amount
equal to its Applicable Percentage of the amount specified in such Committed 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 Committed Loan Notice, whereupon, subject to
Section 2.04(c)(ii), each Lender that so makes funds available shall be deemed to
have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative
Agent shall remit the funds so received to the Swing Line Lender.




(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed
Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed
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 Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender’s payment to the Administrative Agent for the
account of the Swing Line Lender pursuant to Section 2.05(c)(i) shall be deemed
payment in respect of such participation.




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


 


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(iv) Each Lender’s obligation to make Committed Loans or to purchase and fund risk
participations in Swing Line Loans pursuant to this Section 2.04(c) shall be
absolute and unconditional and shall not be affected by any circumstance, including (A) any
setoff, counterclaim, recoupment, defense or other right which such Lender may have against
the Swing Line Lender, the Borrower or any other Person for any reason whatsoever, (B) the
occurrence or continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Committed 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 obligation of the Borrower to repay
Swing Line Loans, together with interest as provided herein.




(d) Repayment of Participations.




(i) At any time after any 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 Lender its Applicable 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 Lender shall pay
to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative
Agent, plus interest thereon from the date of such demand to the date such amount is
returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent
will make such demand upon the request of the Swing Line Lender. The obligations of the
Lenders under this clause shall survive the payment in full of the Obligations and the
termination of this Agreement.



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



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




2.05 Prepayments.



(a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Committed 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 Committed
Loans and (B) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of
Eurodollar Rate Committed 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 Committed Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if
less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such prepayment and the
Type(s) of Committed Loans to be prepaid and, if Eurodollar Rate Committed Loans are to be prepaid,
the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of
its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
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.
Subject to Section 2.16, each such prepayment shall be applied to the Committed Loans of
the Lenders in accordance with their respective Applicable Percentages.


 


30









 





(b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (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 $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



(c) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then
in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C
Obligations in an aggregate amount equal to such excess; provided, however, that
the Borrower 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 Committed Loans and Swing Line
Loans the Total Outstandings exceed the Aggregate Commitments then in effect.



2.06 Termination or Reduction of Commitments. The Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Commitments, or from time to time permanently reduce the Aggregate Commitments; 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 Borrower shall not terminate or reduce the Aggregate Commitments if, after
giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would
exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the
Aggregate Commitments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount
of the Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such
excess. Any notice of termination or reduction delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in which case such notice
may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. 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.




2.07 Repayment of Loans.



(a) The Borrower shall repay to the Lenders on the Maturity Date the aggregate principal
amount of Committed Loans outstanding on such date.



(b) The Borrower shall repay each Swing Line Loan on the earlier to occur of (i) the date
fifteen Business Days after such Loan is made and (ii) the Maturity Date.


 


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2.08 Interest.



(a) Subject to the provisions of Section 2.08(b) below, (i) each Eurodollar Rate
Committed 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 Committed 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 Borrower under any
Loan Document is not paid when due (without regard to any applicable grace periods), whether
at stated maturity, by acceleration or otherwise, then upon the request of the Required
Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.




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



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



2.09 Fees. In addition to certain fees described in subsections (h) and (i) of Section 2.03:



(a) Commitment Fee. The Borrower shall pay to the Administrative Agent for the
account of each Lender in accordance with its Applicable Percentage, a commitment fee equal to the
Applicable Rate times the actual daily amount by which the Aggregate Commitments exceed the
sum of (i) the Outstanding Amount of Committed Loans and (ii) the Outstanding Amount of L/C
Obligations, subject to adjustment as provided in Section 2.16. The commitment fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met, and shall be due and payable quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the Availability Period.
The commitment fee shall be calculated quarterly in arrears, and if there is any change in the
Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Rate separately for each period during such quarter that such Applicable Rate was in
effect.



(b) Other Fees. The Borrower shall pay to the Arranger and the Administrative Agent
for their own respective accounts fees in the amounts and at the times specified in the Fee Letter
and 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.


 


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2.10 Computation of Interest and Fees. 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), 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.




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



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


 


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




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



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



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


 


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(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Committed 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 Committed 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 Committed 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.



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 Committed 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 Committed 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 Committed 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 Committed 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 or on behalf of the Borrower 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
2.15, or (z) any payment obtained by a Lender as consideration for the assignment of or
sale of a participation in any of its Committed Loans or subparticipations in L/C
Obligations or Swing Line Loans to any assignee or participant, other than an assignment to
the Borrower or any Subsidiary (as to which the provisions of this Section shall apply).



The 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 the Borrower rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.




2.14 Increase in Commitments.



(a) Request for Increase. If no Default then exists, upon notice to the
Administrative Agent (which shall promptly notify the Lenders), the Borrower may from time to time,
request an increase in the Aggregate Commitments; provided that (i) the Aggregate
Commitments may not exceed $600,000,000
and (ii) any such request for an increase shall be in a minimum amount of $50,000,000. At the
time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which shall in no event
be less than five Business Days from the date of delivery of such notice to the Lenders).


 


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



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



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



(e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate dated as of the
Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer (x)
certifying and attaching the resolutions adopted by the Borrower approving or consenting to such
increase, and (y) 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 2.14, the
representations and warranties contained in subsections (a) and (b) of Section 5.05 shall
be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b),
respectively, of Section 6.01, (B) no Default exists and (C) the Borrower is in compliance,
on a pro forma basis giving effect to any Loans or other Indebtedness incurred on the Increase
Effective Date (and any concurrent repayment of Indebtedness) and other transactions in excess of
the Threshold Amount consummated since the last date on which a Compliance Certificate has been
delivered, with the covenants contained in Section 7.07, recalculated as of such Increase
Effective Date. The Borrower shall prepay any Committed 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 Committed 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.




2.15 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 Borrower 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 Borrower shall deliver to the Administrative Agent Cash
Collateral in an amount sufficient to cover all Fronting Exposure (after giving effect to
Section 2.16(a)(iv) and any Cash Collateral provided by the Defaulting Lender).


 


36









 





(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 Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the 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 2.15(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 Borrower 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.



(c) Application. Notwithstanding anything to the contrary contained in this
Agreement, Cash Collateral provided under any of this Section 2.15 or Sections
2.04, 2.05, 2.16 or 8.02 in respect of Letters of Credit or Swing Line
Loans shall be held and applied to the satisfaction of the specific L/C Obligations, Swing Line
Loans, obligations to fund participations therein (including, as to Cash Collateral provided by a
Defaulting Lender, any interest accrued on such obligation) and other obligations for which the
Cash Collateral was so provided, prior to any other application of such property as may be provided
for herein.



(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure 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 the Borrower shall not be released during the
continuance of a Default or Event of Default (and following application as provided in this
Section 2.15 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.




2.16 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.


 


37









 






(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 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,
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 then owing to the Lenders, the L/C Issuer or 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 then owing to the Borrower as a
result of any judgment of a court of competent jurisdiction obtained by the Borrower 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
2.16(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 Borrower 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 (x) 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
(y) 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 Committed Loans of that Lender.


 


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(b) Defaulting Lender Cure. If the Borrower, 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
Committed Loans and funded and unfunded participations in Letters of Credit and 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 2.16(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 Borrower 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 Borrower hereunder or under any
other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and
without reduction or withholding for any Taxes. If, however, applicable Laws require the Borrower
or the Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld or deducted
in accordance with such Laws as determined by the Borrower or the Administrative Agent, as the case
may be, upon the basis of the information and documentation to be delivered pursuant to subsection
(e) below.




(ii) If the Borrower or the Administrative Agent shall be required by the Code to
withhold or deduct any Taxes, including both United States Federal backup withholding and
withholding taxes, from any payment, then (A) the 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 Borrower shall be increased as necessary so that after any required
withholding or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or L/C Issuer,
as the case may be, receives an amount equal to the sum it would have received had no such
withholding or deduction been made.



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


 


39









 





(c) Tax Indemnifications. (i) Without limiting the provisions of subsection (a) or
(b) above, the Borrower shall, and does hereby, indemnify the Administrative Agent, each Lender and
the L/C Issuer, and shall make payment in respect thereof promptly, but in any event, not more than
30 days after
written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) withheld or deducted by the Borrower or the Administrative Agent or
paid by the Administrative Agent, such Lender or the L/C Issuer, as the case may be, and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of any such payment or liability
delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent),
or by the Administrative Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall
be conclusive absent manifest error. Notwithstanding anything herein to the contrary, no
Administrative Agent, Lender or L/C Issuer shall be indemnified for any Indemnified Taxes hereunder
unless such Administrative Agent, Lender or L/C Issuer shall make written demand on Borrower for
such reimbursement no later than 270 days after the earlier of (i) the date on which the relevant
Governmental Authority makes written demand upon such Administrative Agent, Lender or L/C Issuer
for payment of such Indemnified Taxes, and (ii) the date on which such Administrative Agent, Lender
or LC Issuer has made payment of such Indemnified Taxes; provided that if the Indemnified
Taxes imposed or asserted giving rise to such claims are retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect thereof.




(ii) Without limiting the provisions of subsection (a) or (b) above, each Lender and
the L/C Issuer shall, and does hereby, indemnify the Borrower and the Administrative Agent,
and shall make payment in respect thereof promptly, but in any event, not more than 30 days
after written demand therefor, against any and all Taxes and any and all related losses,
claims, liabilities, penalties, interest and expenses (including the fees, charges and
disbursements of any counsel for the Borrower or the Administrative Agent) incurred by or
asserted against the Borrower or the Administrative Agent by any Governmental Authority as a
result of the failure by such Lender or the L/C Issuer, as the case may be, to deliver, or
as a result of the inaccuracy, inadequacy or deficiency of, any documentation required to be
delivered by such Lender or the L/C Issuer, as the case may be, to the Borrower or the
Administrative Agent pursuant to subsection (e). Each Lender and the L/C Issuer hereby
authorizes the 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 Borrower or the Administrative Agent,
as the case may be, after any payment of Taxes by the Borrower or by the Administrative Agent to a
Governmental Authority as provided in this Section 3.01, the Borrower shall deliver to the
Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be,
the original or a certified copy of a receipt issued by such Governmental Authority evidencing such
payment, a copy of any return required by Laws to report such payment or other evidence of such
payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be.



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


 


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




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




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




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




(II) executed originals of IRS Form W-8ECI,




(III) executed originals of IRS 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 the Borrower within the meaning of section 881(c)(3)(B) of
the Code, or (C) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (y) executed originals of IRS 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 documentation as
may be prescribed by applicable Laws to permit the Borrower or the
Administrative Agent to determine the withholding or deduction required to
be made.




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


 


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



(g) FATCA Documentation. In the case of a Lender or L/C Issuer that would be subject
to U.S. federal withholding tax imposed by FATCA on payments made under this Agreement or any other
Loan Document if such Lender or L/C Issuer fails to comply with the applicable reporting
requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as
applicable), such Lender or L/C Issuer shall provide such documentation prescribed by applicable
Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional
documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary
for the Borrower or the Administrative Agent to comply with its obligations under FATCA, to
determine that such Lender or L/C Issuer has complied with such Lender’s or L/C Issuer’s
obligations under FATCA, or to determine the amount to deduct and withhold from any such payments;
provided that, notwithstanding any other provision of this subsection, no Lender or L/C
Issuer shall be required to deliver any documentation pursuant to this subsection that such Lender
or L/C Issuer, as the case may be, is not legally able to deliver.



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 whose interest is determined by reference to the Eurodollar Rate for
any Interest Period(s), or to determine or charge interest rates based upon the Eurodollar Rate for
any Interest Period(s), 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 for such Interest Period(s), then, on notice thereof by such Lender to the
Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue
Eurodollar Rate Loans for such affected Interest Period or to convert Base Rate Committed Loans to
Eurodollar Rate Committed Loans having such affected Interest Period 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
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 Borrower that the circumstances giving rise to such determination
no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender
(with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to an alternate Interest Period or if all Interest Periods are affected, 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 Agent 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 for
the affected Interest Period(s). Upon any such prepayment or conversion, the Borrower shall also
pay accrued interest on the amount so prepaid or converted.


 


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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 Base Rate for any requested Interest Period with respect to a proposed
Eurodollar Rate Committed Loan or in connection with an existing or proposed Base Rate Loan, or (c)
the Eurodollar Base Rate for any requested Interest Period with respect to a proposed Eurodollar
Rate Committed Loan does not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter,
(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
Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of
Eurodollar Rate Committed Loans having the requested Interest Period or, failing that, will be
deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans
in the amount specified therein.




3.04 Increased Costs.




(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) or
the L/C Issuer;




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




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


 


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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) then, upon request of such Lender or the L/C Issuer, the Borrower will pay to
such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will
compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or
reduction suffered.



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



(c) Certificates for Reimbursement. A certificate of a Lender or the L/C Issuer
setting forth the amount or amounts necessary to compensate such Lender or the L/C Issuer or its
holding company, as the case may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate
promptly, and in any event within 30 days, after receipt thereof.



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



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



(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);


 


44









 





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



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



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



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



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



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 Credit Extensions hereunder shall
become effective on the date the following conditions precedent are either satisfied or waived in
accordance with Section 10.01:



(a) The Administrative Agent’s receipt of the following, each properly executed by a
Responsible Officer, dated the Closing Date (or, in the case of certificates of governmental
officials, a recent date before the Closing Date) and each in form and substance satisfactory to
the Administrative Agent and each of the Lenders:




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




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




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


 


45









 






(iv) such documents and certifications as the Administrative Agent may reasonably
require to evidence that the Borrower is duly organized or formed, and that the Borrower is
validly existing, in good standing and qualified to engage in business in Delaware and is in
good standing and qualified to engage in business in Texas;




(v) a favorable opinion of Vinson & Elkins LLP, counsel to the Borrower, addressed to
the Administrative Agent and each Lender, as to the matters set forth in Exhibit F;




(vi) a certificate of a Responsible Officer stating that 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 the Borrower of this Agreement or any other Loan Document, other
than (a) those that have already been obtained and are in full force and effect, (b)
filings with the SEC after the Closing Date under Section 13 or 15(d) of the Securities
Exchange Act (which are not required for enforcement) and (c) in the case of third-party
consents or approvals, to the extent the failure to obtain the same could not reasonably be
expected to have a Material Adverse Effect;




(vii) a certificate signed by a Responsible Officer certifying (A) that the conditions
specified in Sections 4.02(a) and (b) have been satisfied, (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 and adverse effect on the operations, financial condition or business of the
Borrower and its Subsidiaries taken as a whole or of the ability of the Borrower to perform
its obligations under any Loan Document to which it is a party; and (C) the current Debt
Ratings; and




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




(b) Any fees required to be paid on or before the Closing Date shall have been paid.



(c) Unless waived by the Administrative Agent, the Borrower shall have paid all reasonable and
documented fees, charges and disbursements of counsel to the Administrative Agent (directly to such
counsel if requested by the Administrative Agent) to the extent invoiced at least three Business
Days prior to the Closing Date.




(d) The Closing Date shall have occurred on or before December 31, 2010.



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.



 


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



(a) The representations and warranties of the Borrower contained in Article V or any
other Loan Document shall be true and correct in all material respects (or, in the case of any
representation or warranty that is qualified as to materiality or Material Adverse Effect, in all
respects) 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 subsections (a) and (b) of Section
5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a)
and (b), respectively, of Section 6.01.



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



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



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



ARTICLE V. REPRESENTATIONS AND WARRANTIES




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



5.01 Existence, Qualification and Power. The Borrower and each Subsidiary thereof (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
to Subsidiaries), clause (b)(i) or (c), to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.



5.02 Authorization; No Contravention. The execution, delivery and performance by the Borrower of each Loan Document to which it
is a party have been duly authorized by all necessary corporate or other organizational action, and
do not and will not (a) contravene the terms of the Borrower’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 the Borrower is a party or
affecting the Borrower, its properties 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, in each case with respect to clauses (b) and (c)
except as could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


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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 the Borrower of this Agreement or
any other Loan Document, other than (a) those that have already been obtained and are in full force
and effect, (b) filings with the SEC after the Closing Date under Section 13 or 15(d) of the
Securities Exchange Act (which are not required for enforcement) and (c) in the case of third-party
consents or approvals, to the extent the failure to obtain the same could not reasonably be
expected to have a Material Adverse Effect.



5.04 Binding Effect. This Agreement has been, and each other Loan Document, when delivered hereunder, will have
been, duly executed and delivered by the Borrower. This Agreement constitutes, and each other Loan
Document when so delivered will constitute, a legal, valid and binding obligation of the Borrower,
enforceable against it in accordance with its terms, subject to bankruptcy, insolvency and similar
laws affecting the enforceability of creditors’ rights generally and to general principles of
equity.




5.05 Financial Statements; No Material Adverse Effect.



(a) The Audited Financial Statements fairly present, in all material respects, the financial
condition of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP.



(b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
September 30, 2010, and the related unaudited consolidated statements of income or operations and
cash flows for the fiscal quarter ended on that date fairly present, in all material respects, the
financial condition of the Borrower and its Subsidiaries as of the date thereof and their results
of operations for the period covered thereby, subject to the absence of footnotes and to normal
year-end audit adjustments.



(c) Since the date of the Audited Financial Statements, as of the Closing Date, there has been
no material adverse change in, and no event or circumstance, either individually or in the
aggregate, that has had or could reasonably be expected to have a material adverse effect on, the
operations, financial condition or business of the Borrower and its Subsidiaries taken as a whole
or of the ability of the Borrower to perform its obligations under any Loan Document to which it is
a party.



5.06 Litigation. Except as described in the Specified Disclosures, there are no actions, suits or
proceedings, by or before any Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries that (a) involve this
Agreement or any other Loan Document or any of the transactions contemplated hereby, or (b) could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.



5.07 Environmental Compliance. Except as described in the Specified Disclosures and except with respect to any other
matters that, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to comply
with any Environmental Law or to obtain, maintain or comply with any permit, license or other
approval required under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.



5.08 Taxes. The Borrower and its Subsidiaries have filed all U.S. Federal, state and other material tax
returns and reports required to be filed, and have paid all U.S. 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 (a) 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 or (b) to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect.


 


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5.09 ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect.




5.10 Margin Regulations; Investment Company Act.



(a) No part of the proceeds of any Loan or Letter of Credit will be used, whether directly or
indirectly, for any purpose that entails a violation of any regulation of the FRB, including
Regulations T, U and X.



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



5.11 Disclosure. No report, financial statement or certificate furnished by or on behalf of the Borrower
(with the knowledge of the Borrower and at its instruction) 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, including the Information
Memorandum, (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 Borrower
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time (it being recognized by the Administrative Agent and the Lenders that
actual results during the period or periods covered by any such projections and forecasts may
differ from the projected or forecasted result and that such differences may be material.



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 (other than contingent indemnification Obligations as
to which no claim has been made or notice given), or any Letter of Credit shall remain outstanding,
the Borrower shall, and shall (except in the case of the covenants set forth in Sections
6.01, 6.02, and 6.03) cause each Subsidiary to:



6.01 Financial Statements. Deliver to the Administrative Agent for further delivery to each Lender:



(a) within 90 days after the end of each fiscal year of the Borrower, a consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, changes in shareholders’ equity, and cash flows
for such fiscal year, setting forth in each case in comparative form the figures for the previous
fiscal year, 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 not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit; and


 


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(b) within 45 days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the Borrower and its Subsidiaries
as at the end of such fiscal quarter, the related unaudited consolidated statements of income or
operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended,
and the related unaudited consolidated statements of cash flows for the portion of the Borrower’s
fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures
for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, certified by the chief executive officer, chief financial officer,
treasurer or controller of the Borrower as fairly presenting, in all material respects, the
financial condition, results of operations and cash flows of the Borrower and its Subsidiaries in
accordance with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.



6.02 Certificates; Other Information. Deliver to the Administrative Agent for further delivery to each Lender:



(a) 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 Borrower (which delivery may,
unless the Administrative Agent, or a Lender requests executed originals, be by electronic
communication including fax or email and shall be deemed to be an original authentic counterpart
thereof for all purposes);



(b) promptly after the same become publicly available, copies of each annual report, proxy or
financial statement or other report distributed generally to the stockholders of the Borrower, and
copies of all annual, regular, periodic and special reports and registration statements which the
Borrower has filed with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to the Administrative Agent pursuant hereto; and



(c) promptly following a written request therefor, such additional information regarding the
operations, business or financial condition of the Borrower or its 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(b) (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 posts such documents, or provides a link thereto on
the Borrower’s website on the Internet at the website address listed on Schedule 10.02; or
(ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website, if any, to which each Lender and the Administrative Agent have access (whether a
commercial, third-party website or whether sponsored by the Administrative Agent); provided
that the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the
posting of any such documents and provide to the Administrative Agent by electronic mail electronic
versions (i.e., soft copies) of such documents. The Administrative Agent shall have no
obligation to request the delivery of or to maintain paper copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by the Borrower with any
such request by a Lender for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.



The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the
Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and
(b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to
receive material non-public information with
respect to the Borrower or its Subsidiaries, or the respective securities of any of the
foregoing, and who may be engaged in investment and other market-related activities with respect to
such Persons’ securities. The Borrower hereby agrees that (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,” the Borrower shall be deemed to have authorized the
Administrative Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials
as not containing any material non-public information with respect to the Borrower or its
securities for purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information, they shall be
treated as set forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of
the Platform not designated “Public Side Information.”


 


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6.03 Notices. Promptly notify the Administrative Agent (which shall notify 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 the filing or commencement of any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or affecting the Borrower or any Subsidiary
thereof that, if adversely determined, could reasonably be expected to have a Material Adverse
Effect; and




(c) of any announcement by Moody’s or S&P of any change in a Debt Rating.



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



6.04 Payment of Obligations. Pay and discharge as the same shall become due and payable, all obligations, including tax
liabilities, assessments and governmental charges or levies upon it or its properties or assets,
that, if not paid, could result in a Material Adverse Effect, unless the same are being contested
in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary.



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 and (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.



6.06 Maintenance of Properties. (a) Maintain, preserve and protect all of its properties 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 each of
clause (a) and (b), where the failure to do so could not reasonably be expected to have a Material
Adverse Effect.



6.07 Maintenance of Insurance. Maintain (either by way of self-insurance or with financially sound and reputable insurance
companies), insurance in such amounts and against such risks as are customarily carried by Persons
engaged in the same or similar business operating in the same or similar locations as reasonably
determined by the Borrower.


 


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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. Maintain, and will cause each of its Subsidiaries domiciled in the United States to, keep
complete and accurate books and records of its transactions in accordance with good accounting
practices on the basis of GAAP; and will cause each of its Subsidiaries domiciled in any other
jurisdiction to keep complete and accurate books and records of its transactions in accordance with
good accounting practices on the basis of generally accepted accounting principles applicable in
such other applicable jurisdiction.



6.10 Inspection Rights. Permit representatives 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 Borrower and at
such reasonable times during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that (a) if no Event of Default
exists, (i) the Borrower shall not be obligated to reimburse the expenses associated with more than
one visit and inspection per calendar year and (ii) there shall be not more than one visit and
inspection per fiscal quarter in the aggregate for the Administrative Agent and the Lenders; and
(b) if an Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives) may do any of the foregoing at the expense of the Borrower at any time
during normal business hours and without advance notice.



6.11 Use of Proceeds. Use the proceeds of the Credit Extensions for general corporate purposes, including
Restricted Payments, not in contravention of any Law or of any Loan Document.



6.12 Additional Guarantors. At any time following the Initial Guaranty Date, if, as of the date of the most recently
available financial statements delivered pursuant to Section 6.01(a) or (b), as the
case many be, any Person shall have become a Significant Subsidiary, then the Borrower shall,
within 30 days after delivery of such financial statements, cause such Significant Subsidiary to
enter into a Guaranty Supplement and deliver in connection therewith documents of the type
described in clauses (iii) through (vi) of Section 4.01(a) with respect to
the execution and delivery of such Guaranty Supplement.



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 (other than contingent indemnification Obligations as
to which no claim has been made or notice given), or any Letter of Credit shall remain outstanding,
the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:


7.01 Liens. Create, incur, assume or suffer to exist any mortgage, deed of trust, security interest,
pledge, lien, charge or other encumbrance (collectively, a “Lien”) upon any Principal
Property or upon any shares of stock of any Subsidiary of the Borrower that owns or leases any
Principal Property
(whether such Principal Property or shares are now existing or owed or hereafter created or
acquired). The foregoing restriction, however, will not apply to each of the following:



(a) Liens on property, shares of stock or other assets of any Person existing at the time such
Person becomes a Subsidiary, provided that such Liens are not incurred in anticipation of
such Person’s becoming a Subsidiary and do not extend to any assets other than those of such
Person;



 


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(b) Liens existing at the date of this Agreement and set forth on Schedule 7.01;



(c) Liens on property of a Person existing at the time such Person is merged into or
consolidated with the Borrower or a Subsidiary of the Borrower or at the time of a sale, lease or
other disposition of the properties of such Person as an entirety or substantially as an entirety
to the Borrower or a Subsidiary of the Borrower, provided that such Lien was not incurred
in anticipation of such merger or consolidation or sale, lease or other disposition and do not
extend to any assets other than those of the Person merged into or consolidated with the Borrower
or a Subsidiary of the Borrower or such property sold, leased or disposed;



(d) Liens on fixed or capital assets acquired, constructed or improved by the Borrower or any
Subsidiary; provided that (i) such security interests and the Indebtedness secured thereby
are incurred prior to or within 90 days after such acquisition or the completion of such
construction or improvement, (ii) the indebtedness secured thereby does not exceed 100% of the cost
of acquiring, constructing or improving such fixed or capital assets and (iii) such security
interests shall not apply to any other property or assets of the Borrower or any Subsidiary;



(e) inchoate Liens incident to construction or maintenance of real property, or Liens incident
to construction or maintenance of real property, now or hereafter filed of record for sums not yet
delinquent or being contested in good faith, if reserves or other appropriate provisions, if any,
as shall be required by GAAP shall have been made therefore;



(f) Liens in favor of customs and revenue authorities arising as a matter of law to secure
payment of customs duties in connection with the importation of goods;



(g) Liens upon specific items of inventory or other goods and proceeds of any Person securing
such Person’s obligations in respect of bankers’ acceptances issued or created for the account of
such person to facilitate the purchase, shipment or storage of such inventory or other goods;



(h) Liens encumbering customary initial deposits and margin deposits and other liens in the
ordinary course of business, in each case securing Swap Contracts and forward contract, option,
futures contracts, futures options or similar agreements or arrangements designed to protect the
Borrower or any of its Subsidiaries from fluctuations in interest rates, currencies or the price of
commodities, provided, that the aggregate value of such collateral so pledged by the
Borrower and its Subsidiaries does not at any time exceed $75,000,000 in the aggregate;



(i) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Borrower or any of its Subsidiaries in the
ordinary course of business;



(j) statutory Liens arising in the ordinary course of business with respect to obligations
which are not delinquent or are being contested in good faith, if reserves or other appropriate
provisions, if any, as shall be required by GAAP shall have been made therefor;



(k) Liens consisting of pledges or deposits to secure obligations under workers’ compensation
laws or similar legislation, including Liens of judgments thereunder which are not currently
dischargeable;


 


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(l) Liens consisting of pledges or deposits of property to secure performance in connection
with operating leases made in the ordinary course of business to which the Borrower or any of the
Borrower’s Subsidiaries is a party as lessee;



(m) judgment Liens in respect of judgments that do not constitute an Event of Default or
securing appeal or other surety bonds relating to such judgments;



(n) mechanics’, workmen’s, repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or
other similar liens arising in the ordinary course of business, or deposits or pledges to obtain
the release of any of the foregoing;



(o) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s Liens, rights of setoff or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution;



(p) Liens for taxes or assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, which are being contested in good
faith by appropriate proceedings;



(q) Liens consisting of easements, rights-of-way, zoning restrictions, restrictions on the use
of real property, and defects and irregularities in the title thereto, landlords’ liens and other
similar liens and encumbrances none of which interfere materially with the use of the property
covered thereby in the ordinary course of the business of the Borrower or its Subsidiaries and
which do not, in the Borrower’s opinion, materially detract from the value of such properties; or



(r) extensions, renewals or replacements of any Liens referred to in the foregoing clauses;
provided, however, that (i) the principal amount of indebtedness secured thereby shall not exceed
the principal amount of indebtedness so secured at the time of such extension, renewal or
replacement and (ii) such extension, renewal or replacement Liens will be limited to all or part of
the same property and improvement thereon which secured the indebtedness so secured at the time of
such extension, renewal or replacement.



Notwithstanding the restrictions in the preceding paragraph, the Borrower or any of its
Subsidiaries may issue, incur, create, assume or guarantee debt secured by a Lien which would
otherwise be subject to such restrictions, provided that after giving effect thereto, the
aggregate amount of all obligations so secured by Liens (not including Liens permitted under
clauses (a) through (r) above) plus the aggregate amount of Attributable Indebtedness in respect to
Sale and Lease-Back Transactions permitted pursuant to Section 7.05 hereof and the
aggregate principal amount of Indebtedness outstanding pursuant to Section 7.03(c) hereof
does not exceed 20% of the Borrower’s Consolidated Net Tangible Assets.



7.02 Investments. Make any Investments, if an Event of Default exists or would result therefrom, except:



(a) Investments held by the Borrower or such Subsidiary in compliance with the Borrower’s
Investment Policy Statement covering the Borrower and its Subsidiaries;



(b) Investments of the Borrower in any Wholly-Owned Subsidiary and Investments of any
Subsidiary in the Borrower or in another Wholly-Owned Subsidiary of the Borrower, including in
Persons who, after giving effect to such Investment, become Wholly-Owned Subsidiaries;


 


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




(d) Guarantees permitted by Section 7.03; and



(e) Investments that are made within 120 days after the Borrower or such Subsidiary becomes
contractually obligated to make such Investment, provided that such Investment would have
been permitted under this Section 7.02 at the time of the Borrower or such Subsidiary
became subject to such Contractual Obligation.



7.03 Subsidiary Indebtedness. Permit any Subsidiary to create, incur, assume or suffer to exist any Indebtedness, except:



(a) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any
refinancings, refundings, renewals or extensions thereof; provided that the amount of such
Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an amount equal to any
existing commitments unutilized thereunder;



(b) obligations (contingent or otherwise) of the Borrower or any Subsidiary existing or
arising under any Swap Contract, provided that (i) such obligations are (or were) entered
into by such Person in the ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such Person, and not
for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain
any provision exonerating the non-defaulting party from its obligation to make payments on
outstanding transactions to the defaulting party;



(c) Indebtedness in an aggregate principal amount that when taken together with all
obligations secured by Liens pursuant to the last sentence of Section 7.01 and all
Attributable Indebtedness in respect of Sale and Lease-Back Transactions permitted pursuant to
Section 7.05 does not exceed as of the date such Indebtedness is incurred an amount equal
to 20% of the Borrower’s Consolidated Net Tangible Assets, provided, that the Borrower may
elect to cause the Initial Guaranty Date to occur and if it shall do so, then from and after the
Initial Guaranty Date, the limitation on Indebtedness set forth in this Section 7.03(c)
shall limit only Indebtedness of Non-Guarantor Subsidiaries; and




(d) Indebtedness owed by any Subsidiary to the Borrower or any other Subsidiary.



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 Event of
Default exists or would result therefrom:



(a) any Subsidiary may merge with (i) the Borrower, provided that the Borrower shall
be the continuing or surviving Person, or (ii) any one or more other Subsidiaries, provided
that when any Wholly-Owned Subsidiary is merging with another Subsidiary, the Subsidiary continuing
or surviving shall be a Wholly-Owned Subsidiary;


 


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(b) any Subsidiary may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise (and in conjunction with any Disposition may dissolve or liquidate)) to
the Borrower or to another Subsidiary; provided that if the transferor in such a
transaction is a Wholly-Owned Subsidiary, then the transferee must either be the Borrower or a
Wholly-Owned Subsidiary;



(c) any Subsidiary may Dispose of all or substantially all of its assets to any Person
(including pursuant to a Sale and Lease-Back Transaction permitted by Section 7.05);
provided such Subsidiary receives consideration equal the fair market value of the assets so
Disposed of (as reasonably determined by the Borrower); and



(d) any Person may (i) merge with the Borrower so long as the Borrower is the surviving
corporation or (ii) merge with any Subsidiary, so long as in either case of clause (i) or (ii), the
Debt Rating after giving effect to such merger is reaffirmed as no lower than BBB- (stable) by S&P
and no lower than Baa3 (stable) by Moody’s.



7.05 Sale and Lease-Back Transactions. Enter into, or permit any of its Subsidiaries to enter into any Sale and Lease-Back
Transaction with respect to any Principal Property, other than any such Sale and Lease-Back
Transaction involving a lease for a term of not more than three years or any such Sale and
Lease-Back Transaction between the Borrower and one of its Subsidiaries, or between its
Subsidiaries, unless:



(a) the Borrower or such Subsidiary of the Borrower, as applicable, would be entitled to incur
obligations secured by a Lien on the Principal Property involved in such Sale and Lease-Back
Transaction at least equal in amount to the Attributable Debt with respect to such Sale and
Lease-Back Transaction, pursuant to Section 7.01; or



(b) the proceeds of such Sale and Lease-Back Transaction are at least equal to the fair market
value of the affected Principal Property (as determined in good faith by the Borrower’s Board of
Directors) and the Borrower applies the net proceeds of such Sale and Lease-Back Transaction within
180 days of such Sale and Lease-Back Transaction to either (or a combination of): (A) the
prepayment or retirement of debt for borrowed money of the Borrower or a Subsidiary of the Borrower
that by its terms matures more than 12 months after its creation or (B) the purchase, construction,
development, expansion or improvement of comparable properties or facilities.



7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted Payment, if any Event of Default
then exists or would result therefrom, except that:



(a) each Subsidiary may make Restricted Payments to the holders of its Equity Interests,
ratably according to their respective holdings of the type of Equity Interest in respect of which
such Restricted Payment is being made;



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




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


 


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(d) dividends and distributions that are paid within 120 days after the Borrower declares such
dividend or distribution, provided that no Event of Default existed or would have resulted
from the making of such dividend or distribution if such dividend or distribution had been made at
the time of declaration; and



(e) repurchases of stock pursuant to any Rule 10b-5 Plan of the Borrower, provided
that no Event of Default existed or would have resulted from such repurchases if such repurchases
had been made at the time such plan was put in place.




7.07 Financial Covenants.



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



(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the
last day of any fiscal quarter of the Borrower or as of the date of any Borrowing (giving effect to
such Borrowing and any other incurrences of Consolidated Funded Debt prior to such date) to be
greater than 3.50 to 1.00.



ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES





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



(a) Non-Payment. The Borrower 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 three days after
the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder,
or (iii) within five days after the same becomes due, any other amount payable hereunder or under
any other Loan Document; or



(b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.03(a), 6.05 (with respect to the
Borrower’s existence) or 6.11 or Article VII; or



(c) Other Defaults. The Borrower fails to perform or observe any other covenant or
agreement (not specified in subsection (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 notice from the
Administrative Agent to the Borrower (which notice will be given at the request of any Lender); or



(d) Representations and Warranties. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower (with the knowledge of the
Borrower and at its instruction) herein, in any other Loan Document, or in any report, certificate
or financial statement delivered in connection herewith or therewith shall be incorrect in any
material respect when made or deemed made; or



(e) Cross-Default. With respect to any Indebtedness of the Borrower or any of its
Subsidiaries (other than Indebtedness outstanding under this Agreement) having an outstanding
principal balance in excess of the Threshold Amount (i) the Borrower or any such Subsidiary shall
(A) default in any payment (beyond the applicable grace period with respect thereto, if any) with
respect to such Indebtedness, or (B) default (after giving effect to any applicable grace period)
in the observance or
performance of any covenant or agreement relating to such Indebtedness, or any other event or
condition shall occur or condition exist, the effect of which default or other event or condition
referred to in this clause (B) is to cause the holder or holders of such Indebtedness (or any
trustee or agent on behalf of such holders) to cause such Indebtedness to become due prior to its
stated maturity; or (ii) such Indebtedness shall be or be declared due and payable, or required to
be prepaid (other than by a regularly scheduled required payment) prior to the stated maturity
thereof or (iii) such Indebtedness shall mature and remain unpaid; or


 


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



(g) Inability to Pay Debts. The Borrower or any Material Subsidiary becomes unable or
admits in writing its inability or fails generally to pay its debts as they become due; or



(h) Judgments. There is entered against the Borrower or any Subsidiary one or more
final judgments or orders for the payment of money in an aggregate amount (as to all such judgments
or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage), and (A) enforcement proceedings are
commenced by any creditor upon such judgment or order, or (B) there is a period of 30 consecutive
days during which a stay of enforcement of such judgment, by reason of a pending appeal or
otherwise, is not in effect; or



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



(j) Invalidity of Loan Documents. Any Loan Document, at any time after its execution
and delivery and for any reason other than as expressly permitted hereunder or thereunder or
satisfaction in full of all the Obligations, ceases to be in full force and effect; or the any Loan
Party contests in any manner the validity or enforceability of any Loan Document; or the Borrower
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, by written notice to the Borrower,
take any or all of the following actions:



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


 


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



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



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



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



8.03 Application of Funds. After the exercise of remedies provided for in Section 8.02 (or after the Loans
have automatically become immediately due and payable and the L/C Obligations have automatically
been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Obligations shall, subject to the provisions of Section 2.15
and 2.16, be applied by the Administrative Agent in the following order:



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



Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including reasonable fees, charges and disbursements of counsel to the
respective Lenders and 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;



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
2.04 and 2.15; and



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



Subject to Sections 2.04(c) and 2.15, 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.


 


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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 the Borrower shall
not 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 the Borrower or any Subsidiary or other
Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any
duty to account therefor to the Lenders.



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



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



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



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



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 or bad faith. The Administrative
Agent shall be deemed not to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.


 


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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 the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.



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



9.06 Resignation of Administrative Agent. (a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Administrative
Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or through the
Administrative Agent shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as provided for above in
this Section. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent
shall be discharged from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this Section). The fees
payable by the Borrower to a successor Administrative Agent shall be the same as those payable to
its predecessor unless otherwise agreed between the Borrower and such successor. After the
retiring 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.


 


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(b) Any resignation by Bank of America as Administrative Agent pursuant to this Section shall
also constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) 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, (b) 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 (c) 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 or
Syndication Agent or Co-Documentation 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 the Borrower, the Administrative Agent (irrespective of whether the
principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Administrative Agent shall have made any
demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or
otherwise



(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and
to file such other documents as may be necessary 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(i) and (j),
2.09 and 10.04) allowed in such judicial proceeding; and


 


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



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



The Lenders irrevocably authorize the Administrative Agent to release any Guarantor from its
obligations under the Subsidiary 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 Subsidiary Guaranty pursuant to this paragraph. Nothing contained herein
shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt
on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or
composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize
the Administrative Agent to vote in respect of the claim of any Lender or the L/C Issuer in any
such proceeding.



ARTICLE X. MISCELLANEOUS




10.01 Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other Loan Document, and
no consent to any departure by the Borrower or any other Loan Party therefrom, shall be effective
unless in writing signed by the Required Lenders and the Borrower or the applicable Loan Party, 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
any 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 to amend the definition of “Default Rate” or to waive any obligation of the
Borrower to pay interest at the Default Rate;



(e) change Section 8.03 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender;


 


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



(g) change any provision of this Section 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;



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 L/C 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 (x) the Commitment of any Defaulting Lender may not be
increased or extended nor the principal owing to such Lender reduced, or the date of final payment
therefor extended, without the consent of such Lender and (y) any waiver, amendment or modification
requiring the consent of all Lenders or each affected Lender that by its terms affects any
Defaulting Lender more adversely than other affected Lenders or modifies this sentence shall
require the consent of such Defaulting Lender.




10.02 Notices; Effectiveness; Electronic Communication.



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




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




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



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


 


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



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



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



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


 


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



10.03 No Waiver; Cumulative Remedies; Enforcement. No failure by any Lender, the L/C Issuer or the Administrative Agent to exercise, and no
delay by any such Person in exercising, any right, remedy, power or privilege hereunder 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 are
cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.



Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Borrower 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 2.14), or (d) any Lender from filing
proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to the Borrower 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 2.14, 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.


 


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10.04 Expenses; Indemnity; Damage Waiver.



(a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any 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 reasonable out-of-pocket
expenses incurred by the Administrative Agent, any Lender or the L/C Issuer (including the
reasonable fees, charges and disbursements of any counsel for the Administrative Agent, any Lender
or the L/C Issuer), in connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such reasonable out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.



(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender, the Syndication Agent, each Co-Documentation Agent
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 reasonable fees, charges
and disbursements of any counsel (limited to one counsel for all Indemnitees taken as a whole and,
if reasonably necessary, a single local counsel for all Indemnitees taken as a whole in each
relevant jurisdiction and, solely in the case of a conflict of interest, one additional counsel in
each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a
whole)), incurred by or awarded against any Indemnitee or asserted against any Indemnitee by any
third party or by the 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, the consummation of the transactions contemplated
hereby or thereby, or, in the case of the Administrative Agent (and any sub-agent thereof) and its
Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any
refusal by the L/C Issuer to honor a demand for payment under a Letter of Credit if the documents
presented in connection with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental
Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory, whether brought by a third party or by the
Borrower, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT
CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE
OF THE INDEMNITEE; 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,
willful misconduct or bad faith of such Indemnitee or (y) in the case of any claim, litigation
or proceeding by, between or among Indemnitees which does not involve or arise from any act or
omission on the part of the Borrower or any of its Subsidiaries; provided that
notwithstanding this clause (y) the Administrative Agent and the Arrangers shall be indemnified in
their capacities as such in all such claims, litigations or proceedings.


 


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(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under Section 10.04(a) or (b) to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.13(d).



(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in Section 10.04(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 or bad faith 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 promptly (and in
any event within 30 days) after written 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 the Borrower is made to the
Administrative Agent, the L/C Issuer or any Lender, or the Administrative Agent, the L/C Issuer or
any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent, the L/C
Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or such setoff had not
occurred, and (b) each Lender and the L/C Issuer severally agrees to pay to the Administrative
Agent upon demand its applicable share (without duplication) of any amount so recovered from or
repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date
such payment is made at a rate per annum equal
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 the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this
Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in 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 and the Loans (including for purposes of this subsection (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 and the Loans at the time owing to it or in the case
of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no
minimum amount need be assigned; and




(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 $5,000,000 unless each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each such
consent not to be unreasonably withheld or delayed); provided,
however, that concurrent assignments to members of an Assignee Group and
concurrent assignments from members of an Assignee Group to a single Eligible
Assignee (or to an Eligible Assignee and members of its Assignee Group) will be
treated as a single assignment for purposes of determining whether such minimum
amount has been met.




(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Agreement
with respect to the Loans or the Commitment assigned, except that this clause (ii)
shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line
Loans;


 


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




(A) the consent of the Borrower (such consent not to be unreasonably withheld)
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 shall be deemed to
have consented to any such assignment unless it shall object thereto by written
notice to the Administrative Agent within five (5) Business Days after having
received notice thereof;




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




(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.




(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; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




(v) No Assignment to Certain Persons. No such assignment shall be made (A) to
the Borrower or any of the Borrower’s 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 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.


 


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



(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 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
Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. 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 Borrower and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the Loans (including such
Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided
that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuer shall continue to
deal solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement.



Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section,
the Borrower agrees that each Participant shall be entitled to the benefits of Sections
3.01, 3.04 and 3.05 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this Section. 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.


 


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



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



(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
Commitment and Loans pursuant to subsection (b) above, Bank of America may, (i) upon ten days’
notice to the Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon ten days’ notice to
the Borrower, resign as Swing Line Lender. In the event of any such resignation as L/C Issuer or
Swing Line Lender, the Borrower shall be entitled to appoint from among the Lenders a successor L/C
Issuer or Swing Line Lender hereunder, subject to such successor L/C Issuer’s or Swing Line
Lender’s acceptance of such appointment in its sole discretion; provided, however,
that no failure by the Borrower to appoint any such successor shall affect the resignation of Bank
of America as L/C Issuer or Swing Line Lender, as the case may be. If Bank of America resigns as
L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to
require the Lenders to make Base Rate Committed 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 Committed 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 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 2.14(c) or (ii) any actual or prospective counterparty
(or its advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y) becomes available to
the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affiliates on a
nonconfidential basis from a source other than the Borrower. For purposes of this Section,
“Information” means all information received from the Borrower or any Subsidiary relating to the
Borrower or any Subsidiary or any of their respective businesses, other than any such information
that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential
basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of
information received from the Borrower or any 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.


 


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



The agreements in this Section 10.07 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, in each case for a period of one year.



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 the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement or any other Loan
Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the L/C
Issuer shall have made any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of
such Lender or the L/C Issuer different from the branch or office holding such deposit or obligated
on such indebtedness; 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 2.16 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. Each Lender and the L/C Issuer
agrees to notify the Borrower and
the Administrative Agent promptly after any such setoff and application, provided that
the failure to give such notice shall not affect the validity of such setoff and application.


 


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



10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of which when taken
together shall constitute a single contract. 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 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 (i) requests compensation under Section 3.04, (ii) asserts an
illegality under Section 3.02, (iii) requests or if the Borrower is required to pay any additional
amount to such Lender or any Governmental Authority for the account of any Lender pursuant to
Section 3.01, (iv) is a Defaulting Lender or (v) fails to approve an amendment, waiver or
consent requiring the consent of all Lenders or each affected Lender when Lenders holding more than
75% of the
Aggregate Commitments (or, if the Commitments are terminated, more than 75% of the Total
Outstandings) have approved such amendment, waiver or consent, or (vi) if any other circumstance
exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative
Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in, and consents required by, Section 10.06), all of its
interests, rights and obligations under this Agreement and the related Loan Documents to an
assignee that shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment), provided that:



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


 


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(b) such Lender shall have received payment of an amount equal to 100% of the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.05) from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts);



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




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



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




10.14 Governing Law; Jurisdiction; Etc.



(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.



(b) SUBMISSION TO JURISDICTION. THE 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 OF THE SECOND 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 THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.


 


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(c) WAIVER OF VENUE. THE 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 SECTION 10.14(B). 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.



(d) 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.



10.16 No Advisory or Fiduciary Responsibility. In connection with all aspects of each transaction contemplated hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
the Borrower acknowledges and agrees, and acknowledges its Subsidiaries’ understanding, that: (i)
(A) the arranging and other services regarding this Agreement provided by the Administrative Agent,
the Syndication Agent, each Co-Documentation Agent and the Arranger, are arm’s-length commercial
transactions between the Borrower and its Subsidiaries, on the one hand, and the Administrative
Agent, the Syndication Agent, each Co-Documentation Agent and the Arranger, on the other hand, (B)
the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts,
the terms, risks and conditions of the transactions contemplated hereby and by the other Loan
Documents; (ii) (A) the Administrative Agent, the Syndication Agent, each Co-Documentation Agent
and the Arranger each is and has been acting solely as a principal and, except as expressly agreed
in writing by the relevant parties, has not been, is not, and will not be acting as an advisor,
agent or fiduciary for the Borrower or any of its Subsidiaries, or any other Person and (B) none of
the Administrative Agent, the Syndication Agent, any Co-Documentation Agent or the Arranger has any
obligation to the Borrower or any of its Subsidiaries 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, the Syndication Agent, each Co-Documentation Agent and the Arranger
and their respective Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Borrower and its Subsidiaries, and none of the
Administrative Agent, the Syndication
Agent, any Co-Documentation Agent or the Arranger has any obligation to disclose any of such
interests to the Borrower or its Subsidiaries. To the fullest extent permitted by law, the
Borrower hereby waives and releases any claims that it may have against the Administrative Agent,
the Syndication Agent, any Co-Documentation Agent and the Arranger with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.


 


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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 Borrower that pursuant to
the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and each Guarantor,
if any, and other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Act. The Borrower shall, promptly
following a request by the Administrative Agent or any Lender, provide all documentation and other
information that the Administrative Agent or such Lender reasonably requests in order to comply
with its ongoing obligations under applicable “know your customer” and anti-money laundering rules
and regulations, including the Act.



10.19 ENTIRE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.


 


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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.



	 	 	 	 	 
	 	BMC SOFTWARE, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to BMC Software, Inc. Credit Agreement]



 


 









 







	 	 	 	 	 
	 	

BANK OF AMERICA, N.A., as

Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to BMC Software, Inc. Credit Agreement]



 


 









 







	 	 	 	 	 
	 	

BANK OF AMERICA, N.A., as a Lender, L/C Issuer and

Swing Line Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to BMC Software, Inc. Credit Agreement]




 


 









 








[OTHER LENDERS]



[Signature Page to BMC Software, Inc. Credit Agreement]




 


 









 







SCHEDULE 2.01




COMMITMENTS

AND APPLICABLE PERCENTAGES




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable	 
	Lender	 	Commitment	 	 	Percentage	 
	Bank of America, N.A.
	 	$	55,000,000	 	 	 	13.750000000	%
	JPMorgan Chase Bank, N.A.
	 	$	45,000,000	 	 	 	11.250000000	%
	Barclays Bank PLC
	 	$	45,000,000	 	 	 	11.250000000	%
	Deutsche Bank AG New York Branch
	 	$	45,000,000	 	 	 	11.250000000	%
	The Royal Bank of Scotland plc
	 	$	45,000,000	 	 	 	11.250000000	%
	HSBC Bank USA, N.A.
	 	$	35,000,000	 	 	 	8.750000000	%
	Wells Fargo Bank, N.A.
	 	$	35,000,000	 	 	 	8.750000000	%
	Bank of China, Los Angeles Branch
	 	$	35,000,000	 	 	 	8.750000000	%
	Royal Bank of Canada
	 	$	35,000,000	 	 	 	8.750000000	%
	Morgan Stanley Bank, N.A.
	 	$	25,000,000	 	 	 	6.250000000	%
	 
	 	 	 	 	 	 
	Total
	 	$	400,000,000	 	 	 	100.000000000	%