exv10w1






EXHIBIT 10.1




Execution Version




$275,000,000




CREDIT AGREEMENT




Dated as of June 4, 2010



among



CBIZ, INC.,



BANK OF AMERICA, N.A.,



as Agent, a Lender, Issuing Bank and Swing Line Bank,



and




THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO



 






BANC OF AMERICA SECURITIES LLC,

as

Sole Lead Arranger and Book Manager




HUNTINGTON NATIONAL BANK, JPMORGAN CHASE BANK, N.A., KEYBANK NATIONAL

ASSOCIATION and U.S. BANK NATIONAL ASSOCIATION

as

Co-Syndication Agents




 







 









 








Table of Contents




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.01 Certain Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	25	 
	1.03 Accounting Principles
	 	 	26	 
	1.04 Letter of Credit Amounts
	 	 	26	 
	 
	 	 	 	 
	ARTICLE II THE CREDITS
	 	 	27	 
	 
	 	 	 	 
	2.01 Amounts and Terms of Commitments
	 	 	27	 
	2.02 Loan Accounts
	 	 	27	 
	2.03 Procedure for Borrowing
	 	 	28	 
	2.04 Conversion and Continuation Elections
	 	 	31	 
	2.05 Termination or Reduction of Commitments
	 	 	32	 
	2.06 Optional Prepayments
	 	 	33	 
	2.07 Mandatory Prepayments of Loans
	 	 	33	 
	2.08 Repayment
	 	 	34	 
	2.09 Interest
	 	 	34	 
	2.10 Fees
	 	 	35	 
	2.11 Computation of Fees and Interest
	 	 	35	 
	2.12 Payments by the Company
	 	 	36	 
	2.13 Payments by the Lenders to the Agent
	 	 	36	 
	2.14 Sharing of Payments, Etc
	 	 	37	 
	2.15 Cash Collateral
	 	 	38	 
	2.16 Defaulting Lenders
	 	 	39	 
	 
	 	 	 	 
	ARTICLE III THE LETTERS OF CREDIT
	 	 	41	 
	 
	 	 	 	 
	3.01 The Letter of Credit Subfacility
	 	 	41	 
	3.02 Issuance, Amendment and Renewal of Letters of Credit
	 	 	42	 
	3.03 Drawings and Reimbursements
	 	 	44	 
	3.04 Repayment of Participations
	 	 	45	 
	3.05 Role of the Issuing Bank
	 	 	46	 
	3.06 Obligations Absolute
	 	 	46	 
	3.07 Letter of Credit Fees
	 	 	47	 
	3.08 Uniform Customs and Practice
	 	 	48	 
	3.09 Letters of Credit Issued for Subsidiaries
	 	 	48	 
	3.10 Outstanding Letters of Credit
	 	 	48	 
	 
	 	 	 	 
	ARTICLE IV TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	48	 
	 
	 	 	 	 
	4.01 Taxes
	 	 	48	 
	4.02 Illegality
	 	 	51	 
	4.03 Increased Costs and Reduction of Return
	 	 	52	 






i









 






Table of Contents




	 	 	 	 	 
	 	 	Page	 
	4.04 Funding Losses
	 	 	52	 
	4.05 Inability to Determine Rates
	 	 	53	 
	4.06 Certificates of Lenders
	 	 	53	 
	4.07 Survival
	 	 	54	 
	4.08 Replacement of Lenders
	 	 	54	 
	 
	 	 	 	 
	ARTICLE V CONDITIONS PRECEDENT
	 	 	54	 
	 
	 	 	 	 
	5.01 Conditions of Effectiveness and Initial Credit Extensions
	 	 	54	 
	5.02 Conditions to All Credit Extensions
	 	 	56	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES
	 	 	57	 
	 
	 	 	 	 
	6.01 Corporate Existence and Power
	 	 	57	 
	6.02 Corporate Authorization; No Contravention
	 	 	57	 
	6.03 Governmental Authorization
	 	 	57	 
	6.04 Binding Effect
	 	 	58	 
	6.05 Litigation
	 	 	58	 
	6.06 No Default
	 	 	58	 
	6.07 ERISA Compliance
	 	 	58	 
	6.08 Use of Proceeds; Margin Regulations
	 	 	59	 
	6.09 Title to Properties
	 	 	59	 
	6.10 Taxes
	 	 	60	 
	6.11 Financial Condition
	 	 	60	 
	6.12 Environmental Matters
	 	 	60	 
	6.13 OFAC
	 	 	61	 
	6.14 Regulated Entities
	 	 	61	 
	6.15 No Burdensome Restrictions
	 	 	61	 
	6.16 Solvency
	 	 	61	 
	6.17 Labor Relations
	 	 	61	 
	6.18 Copyrights, Patents, Trademarks, Etc
	 	 	61	 
	6.19 Subsidiaries
	 	 	62	 
	6.20 Broker’s; Transaction Fees
	 	 	62	 
	6.21 Insurance
	 	 	62	 
	6.22 Swap Obligations
	 	 	62	 
	6.23 Full Disclosure
	 	 	62	 
	 
	 	 	 	 
	ARTICLE VII AFFIRMATIVE COVENANTS
	 	 	63	 
	 
	 	 	 	 
	7.01 Financial Statements
	 	 	63	 
	7.02 Certificates; Other Information
	 	 	64	 
	7.03 Notices
	 	 	65	 
	7.04 Preservation of Corporate Existence, Etc
	 	 	66	 
	7.05 Maintenance of Property
	 	 	66	 






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Table of Contents




	 	 	 	 	 
	 	 	Page	 
	7.06 Insurance
	 	 	66	 
	7.07 Payment of Obligations
	 	 	66	 
	7.08 Compliance with Laws
	 	 	67	 
	7.09 Compliance with ERISA
	 	 	67	 
	7.10 Inspection of Property and Books and Records
	 	 	67	 
	7.11 Environmental Laws
	 	 	67	 
	7.12 Use of Proceeds
	 	 	67	 
	7.13 Solvency
	 	 	68	 
	7.14 Further Assurances
	 	 	68	 
	7.15 New Subsidiaries
	 	 	68	 
	 
	 	 	 	 
	ARTICLE VIII NEGATIVE COVENANTS
	 	 	69	 
	 
	 	 	 	 
	8.01 Limitation on Liens
	 	 	69	 
	8.02 Disposition of Assets
	 	 	71	 
	8.03 Consolidations and Mergers
	 	 	71	 
	8.04 Loans and Investments
	 	 	72	 
	8.05 Limitation on Indebtedness
	 	 	74	 
	8.06 Transactions with Affiliates
	 	 	74	 
	8.07 Use of Proceeds
	 	 	75	 
	8.08 Contingent Obligations
	 	 	75	 
	8.09 Lease Obligations
	 	 	76	 
	8.10 Restricted Payments
	 	 	76	 
	8.11 ERISA
	 	 	77	 
	8.12 Change in Business
	 	 	77	 
	8.13 Accounting Changes
	 	 	77	 
	8.14 Minimum Net Worth
	 	 	77	 
	8.15 Leverage Ratio
	 	 	77	 
	8.16 Fixed Charge Coverage Ratio
	 	 	77	 
	8.17 No Impairment of Intercompany Transfers; Burdensome Restrictions
	 	 	77	 
	8.18 Excluded Subsidiaries
	 	 	78	 
	8.19 Modification of Convertible Debt
	 	 	78	 
	 
	 	 	 	 
	ARTICLE IX EVENTS OF DEFAULT
	 	 	78	 
	 
	 	 	 	 
	9.01 Event of Default
	 	 	78	 
	9.02 Remedies
	 	 	80	 
	9.03 Rights Not Exclusive
	 	 	81	 
	 
	 	 	 	 
	ARTICLE X THE AGENT
	 	 	81	 
	 
	 	 	 	 
	10.01 Appointment and Authority
	 	 	81	 
	10.02 Rights as a Lender
	 	 	81	 
	10.03 Exculpatory Provisions
	 	 	81	 






iii









 






Table of Contents




	 	 	 	 	 
	 	 	Page	 
	10.04 Reliance by Agent
	 	 	82	 
	10.05 Delegation of Duties
	 	 	83	 
	10.06 Resignation of Agent
	 	 	83	 
	10.07 Non-Reliance on Agent and Other Lenders
	 	 	84	 
	10.08 No Other Duties, Etc
	 	 	84	 
	10.09 Withholding Tax
	 	 	84	 
	10.10 Guaranty Matters
	 	 	85	 
	10.11 Reimbursement by Lenders
	 	 	85	 
	 
	 	 	 	 
	ARTICLE XI MISCELLANEOUS
	 	 	85	 
	 
	 	 	 	 
	11.01 Amendments and Waivers
	 	 	85	 
	11.02 Notices; Effectiveness; Electronic Communication
	 	 	87	 
	11.03 No Waiver; Cumulative Remedies
	 	 	88	 
	11.04 Costs and Expenses
	 	 	89	 
	11.05 Company Indemnification; Waiver of Consequential Damages
	 	 	89	 
	11.06 Payments Set Aside
	 	 	90	 
	11.07 Successors and Assigns
	 	 	90	 
	11.08 Assignments by Lenders; Participations; Register
	 	 	91	 
	11.09 Treatment of Certain Information; Confidentiality
	 	 	95	 
	11.10 Set-off
	 	 	95	 
	11.11 Notification of Addresses, Lending Offices, Etc
	 	 	96	 
	11.12 Counterparts
	 	 	96	 
	11.13 Severability
	 	 	96	 
	11.14 No Third Parties Benefited
	 	 	96	 
	11.15 Governing Law; Jurisdiction; Venue; Etc
	 	 	96	 
	11.16 WAIVER OF JURY TRIAL
	 	 	97	 
	11.17 USA PATRIOT Act Notice
	 	 	98	 
	11.18 Survival of Representations and Warranties
	 	 	98	 
	11.19 No Advisory or Fiduciary Responsibility
	 	 	98	 
	11.20 Entire Agreement
	 	 	98	 






iv









 






Table of Contents




	 	 	 	 	 
	 	 	Page	 
	SCHEDULES
	 	 	 	 
	 
	 	 	 	 
	Schedule 1.01 Existing Letters of Credit
	 	 	 	 
	Schedule 2.01 Commitments
	 	 	 	 
	Schedule 6.05(b) Litigation
	 	 	 	 
	Schedule 6.07(d) Pension Plans
	 	 	 	 
	Schedule 6.11 Permitted Liabilities
	 	 	 	 
	Schedule 6.19 Subsidiaries and Minority Interests
	 	 	 	 
	Schedule 8.02 Specified Asset Sales
	 	 	 	 
	Schedule 8.04 Existing Investments
	 	 	 	 
	Schedule 8.05 Existing Indebtedness
	 	 	 	 
	Schedule 8.08 Contingent Obligations
	 	 	 	 
	Schedule 11.02 Lending Offices; Addresses for Notices
	 	 	 	 
	 
	 	 	 	 
	EXHIBITS
	 	 	 	 
	 
	 	 	 	 
	Exhibit A Form of Notice of Borrowing
	 	 	 	 
	Exhibit B Form of Notice of Conversion/Continuation
	 	 	 	 
	Exhibit C Form of Compliance Certificate
	 	 	 	 
	Exhibit D-1 Form of Legal Opinion of Akin Gump Strauss Hauer & Feld LLP
	 	 	 	 
	Exhibit D-2 Form of Legal Opinion of Company’s general counsel
	 	 	 	 
	Exhibit E Form of Assignment and Assumption
	 	 	 	 
	Exhibit F-1 Form of Promissory Note – Revolving Loan
	 	 	 	 
	Exhibit F-2 Form of Promissory Note – Swing Line Loan
	 	 	 	 







5











 





CREDIT AGREEMENT




     This CREDIT AGREEMENT is entered into as of June 4, 2010, (as amended, restated, supplemented
or otherwise modified from time to time, this “Agreement”) among CBIZ, Inc., a Delaware
corporation (the “Company”), the several financial institutions from time to time party to
this Agreement (collectively, the “Lenders” and each, a “Lender”), Bank of America,
N.A., as Agent, as Issuing Bank and as Swing Line Bank, Banc of America Securities LLC, as
Arranger, and Huntington National Bank, JPMorgan Chase Bank, N.A., KeyBank National Association and
U.S. Bank National Association, as Co-Syndication Agents.



     WHEREAS, the Company, the Lenders and the Agent entered into that certain Credit Agreement
dated as of February 13, 2006 (as amended, supplemented or otherwise modified prior to the date
hereof, the “Existing Credit Agreement”) to make available to the Company a revolving
credit facility with a letter of credit subfacility;



     WHEREAS, the Company, the Lenders and the Agent desire to refinance the amounts outstanding
under the Existing Credit Agreement with Loans under this Agreement in its entirety upon the terms
and conditions set forth herein and terminate the Existing Credit Agreement;



     NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained
herein, the parties agree as follows:



ARTICLE I




DEFINITIONS



     1.01 Certain Defined Terms. The following terms have the following meanings:




     “Acquisition” means any transaction or series of related transactions for the
purpose of or resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of any business or division of a Person, (b)
the acquisition of in excess of 50% of the capital stock, partnership interests, membership
interests or equity of any Person, or otherwise causing any Person to become a Subsidiary,
or (c) a merger or consolidation or any other combination with another Person (other than a
Person that is a Subsidiary) provided that after giving effect to the merger the Person is a
Subsidiary or the Company or a Subsidiary is the surviving entity.




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




     “Affiliate” means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with, such
Person. A Person shall be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the ownership of voting
securities, membership interests, by contract, or otherwise.



1









 






     “Agent” means Bank of America in its capacity as administrative agent for the
Lenders hereunder, and any successor administrative agent arising under Section
10.09.




     “Agent-Related Persons” means Bank of America and any successor agent arising
under Section 10.09 and any successor letter of credit issuing bank hereunder,
together with their respective Affiliates, and the partners, officers, directors, employees,
advisors, agents and attorneys-in-fact of such Persons and Affiliates.




     “Agent’s Payment Office” means the address for payments set forth on
Schedule 11.02 or such other address as the Agent may from time to time specify.




     “Agreement” has the meaning set forth in the preamble.




     “Applicable Margin” shall mean on any date the applicable percentage set forth
below based upon the Total Leverage Ratio as calculated after adjusting the Leverage Ratio
shown in the Compliance Certificate then most recently delivered to the Agent and the
Lenders:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Revolving Loans / Letters of Credit	 	 	Fees	 
	Total Leverage Ratio	 	Base Rate	 	 	Eurodollar Rate	 	 	Letter of Credit Fees	 	 	Commitment Fee	 
	≥ 3.50:1.00
	 	 	2.500	%	 	 	3.500	%	 	 	3.500	%	 	 	0.625	%
	≥ 3.00:1.00, but < 3.50:1.00
	 	 	2.250	%	 	 	3.250	%	 	 	3.250	%	 	 	0.500	%
	≥ 2.50:1.00, but < 3.00:1.00
	 	 	2.000	%	 	 	3.000	%	 	 	3.000	%	 	 	0.500	%
	≥ 2.00:1.00, but < 2.50:1.00
	 	 	1.750	%	 	 	2.750	%	 	 	2.750	%	 	 	0.450	%
	≥ 1.00:1.00, but < 2.00:1.00
	 	 	1.500	%	 	 	2.500	%	 	 	2.500	%	 	 	0.400	%
	< 1.00:1.00
	 	 	1.250	%	 	 	2.250	%	 	 	2.250	%	 	 	0.350	%







; provided however that (i) for the period from the date on which this
Agreement shall have become effective to and including the delivery of the Compliance
Certificate for the period ending June 30, 2010, the Applicable Margin shall be determined
as if the Total Leverage Ratio for such period were greater than or equal to 3.00:1.00 but
less than 3.50:1.00, and (ii) if the Company shall have failed to deliver to the Lenders by
the date required hereunder any Compliance Certificate pursuant to Section 7.02(b), then
from the date such Compliance Certificate was required to be delivered until the date of
such delivery the Applicable Margin shall be determined as if the Total Leverage Ratio for
such period was greater than or equal to 3.50:1.00. Each change in the Applicable Margin
(other than pursuant to clause (i) immediately above, which change shall take effect
as provided in such clause) shall take effect with respect to all outstanding Loans on the
third Business Day immediately succeeding the day on which such Compliance Certificate is
received by the Agent. Notwithstanding the foregoing, no reduction in the Applicable Margin
shall be effected if a Default or an Event of Default shall have occurred and be continuing
on the date when such change would otherwise occur, it



2









 







being understood that on the third Business Day immediately succeeding the day on which such
Default or Event of Default is either waived or cured (assuming no other Default or Event of
Default shall be then pending), the Applicable Margin shall be reduced (on a prospective
basis) in accordance with the then most recently delivered Compliance Certificate (or
clause (ii) above, as applicable). Notwithstanding anything to the contrary
contained in this definition, the determination of the Applicable Margin for any period
shall be subject to the provisions of Section 2.11(c).




     “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.




     “Assignment and Assumption” means an Assignment and Assumption substantially in
the form of Exhibit E.




     “Arranger” means Banc of America Securities LLC, in its capacity as sole lead
arranger and book manager.




     “Attorney Costs” means and includes all reasonable and customary fees and
disbursements of any law firm or other external counsel, the allocated cost of internal
legal services and all disbursements of internal counsel related to this Agreement and the
other Loan Documents.




     “Bank of America” means Bank of America, N.A., a national banking association,
and its successors.




     “Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C.
§101, et seq.).




     “Base Rate” means, for any day, the highest of (i) the rate of interest in
effect for such days as publicly announced from time to time by Bank of America as its
“prime rate”, (ii) the Federal Funds Rate for such day plus 0.50% per annum and
(iii) the Eurodollar Rate in effect for such day for a one-month Interest Period commencing
on such day plus 1.00% per annum. 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 the 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 Loan” means a Revolving Loan, or a L/C Advance, that bears interest
based on the Base Rate.




     “Borrowing” means a borrowing hereunder consisting of Loans of the same Type
made to the Company on the same day by the Lenders under Article II, and, in the
case of Eurodollar Rate Loans, having the same Interest Period.



3









 






     “Borrowing Date” means any date on which a Borrowing occurs under Section
2.03.




     “Budgeted EBITDA” has the meaning set forth in Section 7.02(d).




     “Business Day” means any day other than a Saturday, Sunday or other day on
which commercial banks in Chicago or San Francisco are authorized or required by law to
close and, if the applicable Business Day relates to any Eurodollar Rate Loan, means such a
day that is also a London Banking Day.




     “Capital Adequacy Regulation” means any guideline, request or directive of any
central bank or other Governmental Authority, or any other law, rule or regulation, whether
or not having the force of law, in each case, regarding capital adequacy of any Lender or of
any corporation controlling a Lender.




     “Capital Expenditures” means, for any period and with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the acquisition or
leasing of fixed or capital assets or additions to equipment (including replacements,
capitalized repairs and improvements during such period) which should be capitalized under
GAAP on a consolidated balance sheet of such Person and its Subsidiaries.




     “Capital Lease” has the meaning specified in the definition of “Capital Lease
Obligations.”




     “Capital Lease Obligations” means all monetary obligations of the Company or
any of its Subsidiaries under any leasing or similar arrangement which, in accordance with
GAAP, is classified as a capital lease (“Capital Lease”).




     “Cash Collateralize” means to pledge and deposit with or deliver to the Agent,
for the benefit of the Agent, the Lenders and the Swing Line Bank or the Issuing Bank, as
applicable, as collateral for the 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 Issuing Bank or Swing Line
Bank 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 Agent and (b) the Issuing Bank or the Swing Line Bank (as applicable). “Cash
Collateral” shall have a meaning correlative to the foregoing and shall include the
proceeds of such cash collateral and other credit support.




     “Cash Consideration” means, in respect of any Acquisition, collectively, the
total cash consideration paid by the Company or any of its Subsidiaries upon the
consummation of such Acquisition plus Indebtedness of the target company or
operations assumed by the Company or any of its Subsidiaries (other than payments by the
target company prior to the Acquisition), plus any deferred payments booked as a
liability upon the consummation of such Acquisition.




     “Cash Equivalents” means:



4









 






     (a) securities issued or fully guaranteed or insured by the government of the United
States or Canada or any agency thereof and backed by the full faith and credit of the United
States or Canada having maturities of not more than six months from the date of acquisition;




     (b) certificates of deposit, time deposits, Eurodollar time deposits, repurchase
agreements, reverse repo agreements, or bankers’ acceptances, having in each case a tenor of
not more than six months, issued by any Lender, or by any commercial bank organized under
the laws of the United States, any state thereof or the District of Columbia or Canada or
any province thereof having combined capital and surplus of not less than $100,000,000 whose
short term securities are rated at least A-1 by Standard & Poor’s Ratings Service, a
division of The McGraw-Hill Companies, Inc., and P-1 by Moody’s Investors Service, Inc.;




     (c) commercial paper of an issuer rated at least A-1 by Standard & Poor’s Ratings
Service, a division of The McGraw-Hill Companies, Inc., or P-1 by Moody’s Investors Service
Inc. and in either case having a tenor of not more than three months;




     (d) money market funds that invest principally in Cash Equivalents described in
clauses (a) through (c) hereof.




     “Change of Control” means (a) any Person or any two or more Persons (in each
case other than (i) a Person that is a stockholder of the Company as of the date of this
Agreement and (ii) (x) Michael G. DeGroote, (y) any Person related to him by blood, marriage
or adoption and (z) any trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners, owners or Persons beneficially holding a majority or more
controlling interest of which consist of any one or more of the Persons described in the
preceding clauses (x) and (y)) acting in concert acquiring beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange Commission under the Exchange Act),
directly or indirectly, of capital stock of the Company (or other securities convertible
into such capital stock) representing 35% or more of the combined voting power of all
capital stock of the Company entitled to vote in the election of directors, other than
capital stock having such power only by reason of the happening of a contingency or (b)
during any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Company cease to be composed of
individuals (i) who were members of that board or equivalent governing body on the first day
of such period, (ii) whose election or nomination to that board or equivalent governing body
was approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or
(iii) whose election or nomination to that board or other equivalent governing body was
approved by individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that board or equivalent governing
body (excluding, in the case of both clause (ii) and clause (iii), any individual whose
initial nomination for, or assumption of office as, a member of that board or equivalent
governing body occurs as a result of an actual or threatened solicitation of proxies or
consents for the election or removal of one or more



5









 







directors by any person or group other than a solicitation for the election of one or
more directors by or on behalf of the board of directors).




     “Closing Date” means the date on which all conditions precedent set forth in
Section 5.01 are satisfied or waived by all Lenders.




     “Co-Syndication Agent” means each of Huntington National Bank, JPMorgan Chase
Bank, N.A., KeyBank National Association and U.S. Bank National Association, in its capacity
as syndication agent for the credit facility evidenced by this Agreement.




     “Code” means the Internal Revenue Code of 1986, as amended, and regulations
promulgated thereunder.




     “Commitment” means, collectively, the Revolving Loan Commitment and the Swing
Line Loan Maximum Amount.




     “Commitment Fee” has the meaning specified in Section 2.10(b).




     “Company” means CBIZ, Inc., a Delaware corporation.




     “Company Materials” has the meaning specified in Section 7.02.




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




     “Consolidated Interest Expense” means, for any period, gross consolidated
interest expense (after giving effect to any increase in interest expense resulting from net
amount of payments made or received with respect to Permitted Swap Obligations;
provided, however, that no net reduction in interest expense shall be
permitted if the Company should receive more payments than the Company makes with respect
thereto) for the period (including all commissions, discounts, fees and other charges in
connection with standby letters of credit and similar instruments) for the Company and its
Subsidiaries (other than Excluded Subsidiaries), plus the portion of the upfront costs and
expenses for Swap Contracts (to the extent not included in gross interest expense) fairly
allocated to such Swap Contracts as expenses for such period, as determined in accordance
with GAAP and after giving effect to any Swap Contract then in effect.




     “Contingent Obligation” means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse, (a) with
respect to any Indebtedness, lease, dividend, letter of credit or other obligation (the
“primary obligations”) of another Person (the “primary obligor”), including any obligation
of that Person (i) to purchase, repurchase or otherwise acquire such primary obligations or
any security therefor, (ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor, (iii) to purchase property,
securities or services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary



6









 







obligation, or (iv) otherwise to assure or hold harmless the holder of any such primary
obligation against loss in respect thereof (each, a “Guaranty Obligation”); (b) with
respect to any Surety Instrument (other than any Letter of Credit) issued for the account of
that Person or as to which that Person is otherwise liable for reimbursement of drawings or
payments; (c) to purchase any materials, supplies or other property from, or to obtain the
services of, another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies or other property
is ever made or tendered, or such services are ever performed or tendered, (d) in respect of
any Swap Contract or (e) contingent, deferred purchase price consideration obligations with
respect to any Acquisition, including, without limitation, any “earn-out” obligations;
provided, however, that neither the term “Contingent Obligation” nor
the term “Guaranty Obligation” shall include obligations in respect of insurance,
reinsurance, surety or fidelity contracts, bonds or policies entered into or issued in the
ordinary course of business. Except as otherwise expressly provided herein, the amount of
any Contingent Obligation shall (i) in the case of Guaranty Obligations, be deemed equal to
the stated or determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the maximum reasonably
anticipated liability in respect thereof, (ii) in the case of Contingent Obligations of the
type described in clause (e) above, be deemed equal to the maximum possible liability in
respect thereof, (iii) in the case of other Contingent Obligations other than in respect of
Swap Contracts, be deemed equal to the maximum reasonably anticipated liability in respect
thereof, and (iv) in the case of Contingent Obligations in respect of Swap Contracts, be
deemed equal to the Swap Termination Value.




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




     “Conversion/Continuation Date” means any date on which, under Section
2.04, the Company (a) converts Loans of one Type to another Type, or (b) continues as
Loans of the same Type, but with a new Interest Period, Loans having Interest Periods
expiring on such date.




     “Convertible Debt” means Indebtedness in an aggregate original principal amount
of up to $100,000,000 issued pursuant to the Indenture, but without giving effect to any
agreement or instrument governing any refinancing or a replacement thereof or additional
issuances of Indebtedness thereunder.




     “Credit Extension” means and includes (a) the making of any Loans hereunder,
and (b) the Issuance of any Letters of Credit hereunder.




     “Default” means any event or circumstance which, with the giving of notice, the
lapse of time, or both, would (if not cured or otherwise remedied during such time)
constitute an Event of Default.



7









 






     “Default Rate” has the meaning set forth in Section 2.09(c).




     “Defaulting Lender” means, subject to Section 2.16(b), any Lender that,
as determined by the Agent, (a) has failed to perform any of its funding obligations
hereunder, including in respect of the Revolving Loans, participations in L/C Obligations or
participations in Swing Line Loans within three (3) Business Days of the date required to be
funded by it hereunder, (b) has notified the Company, the Agent or any Lender that it does
not intend to comply with its funding obligations or has made a public statement to that
effect with respect to its funding obligations hereunder or under other agreements in which
it commits to extend credit, (c) has failed, within three (3) Business Days after request by
the Agent, to confirm in a manner satisfactory to the Agent that it will comply with its
funding obligations, or (d) has, or has a direct or indirect parent company that has, (i)
become the subject of an Insolvency Proceeding, (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.




     “Dollars”, “dollars” and “$” each mean lawful money of the
United States.




     “EBITDA” means, for any period, for the Company and its Subsidiaries (other
than Excluded Subsidiaries) on a consolidated basis, determined in accordance with GAAP, the
sum of (a) the Net Income (or net loss) for such period, plus (b) all amounts
treated as expenses for depreciation and the amortization of intangibles of any kind,
including the impairment of goodwill charges, to the extent included in the determination of
such Net Income (or loss), plus (c) Consolidated Interest Expense, to the extent
included in the determination of Net Income (or loss), plus (d) all accrued taxes on
or measured by income to the extent included in the determination of such Net Income (or
loss), plus (e) cash dividends received during such period by the Company, or any
Subsidiary that is not an Excluded Subsidiary, from Excluded Subsidiaries, provided
that the aggregate amount of such cash dividends included in this clause (e) does not exceed
fifty percent (50%) of EBITDA after giving effect to the addition of such dividends.




     “EBITDAR” means, for any period, for the Company and its Subsidiaries (other
than Excluded Subsidiaries) on a consolidated basis, determined in accordance with GAAP, the
sum of (a) EBITDA for such period, plus, (b) all Rental Expense for such period,
plus, (c) non-cash rental charges incurred during such period pursuant to FAS 146
with respect to discontinued leased real property locations.




     “Effective Amount” means (a) with respect to any Revolving Loans on any date,
the aggregate outstanding principal amount thereof after giving effect to any Borrowings and
prepayments or repayments of Revolving Loans occurring on such date, (b) with respect to any
Swing Line Loans on any date, the aggregate outstanding principal amount thereof after
giving effect to any Borrowings and prepayments or repayments of Swing Line Loans occurring
on such date and (c) with respect to any outstanding L/C



8









 







Obligations on any date, the amount of such L/C Obligations on such date after giving
effect to any Issuances of Letters of Credit 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 of outstanding unpaid drawings under any Letters of Credit or any reductions
in the maximum amount available for drawing under Letters of Credit taking effect on such
date. For purposes of Section 2.07, the Effective Amount shall be determined
without giving effect to any mandatory prepayments to be made under said Section.




     “Environmental Claims” means all claims, however asserted, by any Governmental
Authority or other Person alleging potential liability or responsibility for violation of
any Environmental Law, or for release or injury to the environment.




     “Environmental Laws” means all federal, state or local laws, statutes, common
law duties, rules, regulations, ordinances and codes, together with all administrative
orders, directed duties, requests, licenses, authorizations and permits of, and agreements
with, any Governmental Authorities, in each case relating to environmental, health, safety
and land use matters.




     “Environmental Permits” has the meaning specified in Section 6.12(b).




     “ERISA” means the Employee Retirement Income Security Act of 1974, and
regulations promulgated thereunder.




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




     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b)
the withdrawal of the Company 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
Company 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; or (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 Company
or any ERISA Affiliate.



9









 






     “Eurodollar Rate” means:




(I) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal
to (A) 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 Agent from time to time) at approximately 11:00 a.m., London time, two
London Banking Days prior to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent to such
Interest Period or (B) if such rate is not available at such time for any reason from such
sources, the rate per annum determined by the 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 4:00 p.m. (London time) two London Banking Days prior to the
commencement of such Interest Period.




(II) For any interest rate calculation with respect to a Base Rate Loan, the rate per annum
equal to (i) BBA LIBOR, at approximately 11:00 a.m., London time determined two (2) London
Banking Days prior to such date for Dollar deposits being delivered in the London interbank
market for a term of one month commencing on that day or (ii) if such published rate is not
available at such time for any reason, the rate determined by the Agent to be the rate at
which deposits in Dollars for delivery on the date of determination in same day funds in the
approximate amount of the Base Rate Loan being made, continued or converted by Bank of
America and with a term equal to one month would be offered by Bank of America’s London
Branch to major banks in the London interbank Eurodollar market at their request at the date
and time of determination.




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




     “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.




     “Event of Default” means any of the events or circumstances specified in
Section 9.01.




     “Exchange Act” means the Securities Exchange Act of 1934, and regulations
promulgated thereunder.



10









 






     “Excluded Subsidiary” means, at any time, any Subsidiary who may not guaranty
the Obligations under the Guaranty, in any case without violating federal, state and/or
local laws or regulations applicable to such Subsidiary.




     “Excluded Taxes” means, with respect to the Agent, any Lender, the Issuing Bank
or any other recipient of any payment to be made by or on account of any obligation of the
Company or any Guarantor hereunder, (a) taxes imposed on or measured by its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which
such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other jurisdiction in which
the Company or any Guarantor is located, (c) any backup withholding tax that is required by
the Code to be withheld from amounts payable to a Lender that has failed to comply with
clause (A) of Section 4.01(e)(ii) and (d) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Company under Section 4.08), any
United States withholding tax that is required to be imposed on amounts payable to such
Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new
Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than
as a result of a Change in Law) to comply with clause (B) of Section 4.01(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 Company with respect to such withholding tax pursuant to Section 4.01(a) or
(c).




     “Existing Credit Agreement” has the meaning specified in the recital hereto.




     “Existing Letter of Credit” means each letter of credit listed on Schedule
1.01.




     “FDIC” means the Federal Deposit Insurance Corporation, and any Governmental
Authority succeeding to any of its principal functions.




     “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 Agent.




     “Fee Letter” has the meaning specified in Section 2.10(a).




     “Fixed Charge Coverage Ratio” means, with respect to the Company and its
Subsidiaries (other than Excluded Subsidiaries) on a consolidated basis for any fiscal



11









 







period, the ratio of EBITDAR minus Capital Expenditures minus tax
expenses included in the determination of EBITDAR to the extent paid in cash during such
period (other than such taxes paid in conjunction with the repayment of the Convertible
Debt) to Fixed Charges.




     “Fixed Charges” means, with respect to the Company and its Subsidiaries (other
than Excluded Subsidiaries) on a consolidated basis for any fiscal period of determination,
(a) Consolidated Interest Expense paid in cash during such fiscal period, plus (b)
scheduled payments of principal with respect to Indebtedness for such fiscal period (other
than, for purposes of this definition, any payments scheduled on any put/call dates in
respect of the Convertible Debt), plus (c) Rental Expense paid for such fiscal
period.




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




     “FRB” means the Board of Governors of the Federal Reserve System, and any
Governmental Authority succeeding to any of its principal functions.




     “Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with
respect to the Issuing Bank, such Defaulting Lender’s Pro Rata Share 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 Bank, such Defaulting Lender’s Pro
Rata Share 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, subject to Section 1.03, generally accepted accounting
principles in the United States set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting profession in the
United States, that are applicable to the circumstances as of the date of determination,
consistently applied.




     “Governmental Authority” means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or regulatory
authority) thereof, any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government (including, without limitation, any
board of insurance, insurance department or insurance commissioner and any taxing



12









 







authority or political subdivision), and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the foregoing.




     “Guarantor” means each direct and indirect domestic Subsidiary of the Company
that is not an Excluded Subsidiary, whether now existing or hereafter created or acquired.




     “Guaranty” means the Guaranty of even date herewith, duly executed and
delivered by each Guarantor in favor of the Agent, on behalf of the Lenders, as the same may
be amended, restated, further supplemented or otherwise modified from time to time.




     “Guaranty Obligation” has the meaning specified in the definition of
“Contingent Obligation.”




     “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.




     “Highest Lawful Rate” means at the particular time in question the maximum rate
of interest which, under applicable law, any Lender is then permitted to charge on the
Obligations. If the maximum rate of interest which, under applicable law, any Lender is
permitted to charge on the Obligations shall change after the date hereof, the Highest
Lawful Rate shall be automatically increased or decreased, as the case may be, from time to
time as of the effective time of each such change in the Highest Lawful Rate without notice
to the Company.




     “Honor Date” has the meaning set forth in Section 3.03.




     “Indebtedness” of any Person means, without duplication:




     (a) all indebtedness for borrowed money;




     (b) all obligations issued, undertaken or assumed as the deferred purchase price of
property or services (other than trade payables and other accrued liabilities entered into
in the ordinary course of business);




     (c) all non-contingent reimbursement or payment obligations with respect to Surety
Instruments and all L/C Obligations;




     (d) all obligations evidenced by notes, bonds, debentures or similar instruments;




     (e) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to property
acquired by the Person (even though the rights and remedies of the seller or bank under



13









 







such agreement in the event of default are limited to repossession or sale of such
property);




     (f) all non-contingent obligations to pay deferred purchase price consideration with
respect to Acquisitions, including, without limitation, any non-contingent “earn-out”
obligations;




     (g) all Capital Lease Obligations;




     (h) all indebtedness referred to in clauses (a) through (g) above
secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon or in property (including accounts and
contracts rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness;




     (i) all Guaranty Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (h) above;




     (j) the Convertible Debt, provided that upon and to the extent of the conversion of
such Convertible Debt into capital stock of the Company, such Convertible Debt shall no
longer constitute Indebtedness.




     “Indemnified Liabilities” has the meaning specified in Section 11.05.




     “Indemnified Person” has the meaning specified in Section 11.05.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.




     “Indenture” means that certain Indenture, dated as of May 30, 2006, executed
and delivered by the Company pursuant to which the Company issued puttable cash pay
convertible debt in an original principal amount of $100,000,000.




     “Independent Auditor” has the meaning specified in Section 7.01(a).




     “Insolvency Proceeding” means, with respect to any Person, (a) any case, action
or proceeding with respect to such Person before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
moratorium, rearrangement, winding-up or relief of debtors, or (b) any general assignment
for the benefit of creditors, composition, marshaling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any substantial portion of its
creditors; undertaken under the Bankruptcy Code or similar debtor relief laws of the United
States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally




     “Interest Payment Date” means, as to any Eurodollar Rate Loan, the last day of
each Interest Period applicable to such Eurodollar Rate Loan and, as to any Base Rate Loan
or Swing Line Loan, the last Business Day of each March, June, September and December;
provided, however, that if any Interest Period exceeds three months, the date



14









 







that falls three months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date.




     “Interest Period” means, as to any Eurodollar Rate Loan, the period commencing
on the Borrowing Date of such Loan or on the Conversion/Continuation Date on which the Loan
is converted into or continued as an Eurodollar Rate Loan, and ending on the date seven
days, one month, two months, three months or six months thereafter as selected by the
Company in its Notice of Borrowing or Notice of Conversion/Continuation;




     provided that:




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




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




     (c) no Interest Period for any Revolving Loan shall extend beyond the Revolving
Termination Date.




     “IRS” means the Internal Revenue Service, and any Governmental Authority
succeeding to any of its principal functions under the Code.




     “Issuance Date” has the meaning specified in Section 3.01(a).




     “Issue” means, with respect to any Letter of Credit, to issue or to extend the
expiry of, or to renew or increase the amount of, such Letter of Credit; and the terms
“Issued,” “Issuing” and “Issuance” have corresponding meanings.




     “Issuing Bank” means Bank of America in its capacity as issuer of one or more
Letters of Credit hereunder together with any replacement letter of credit issuer arising
under Section 10.01(b) or Section 11.08(h).




     “L/C Advance” means each Lender’s participation in any L/C Borrowing in
accordance with its Pro Rata Share.




     “L/C Amendment Application” means an application form for amendment of
outstanding standby or commercial letters of credit as shall at any time be in use at the
Issuing Bank, as the Issuing Bank shall request.




     “L/C Application” means an application form for Issuances of standby or
commercial letters of credit as shall at any time be in use at the Issuing Bank, as the
Issuing Bank shall request.



15









 






     “L/C Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which shall not have been reimbursed on the date when made nor converted
into a Borrowing of Revolving Loans under Section 3.03(c).




     “L/C Commitment” means the commitment of the Issuing Bank to Issue, and the
commitment of the Lenders severally to participate in, Letters of Credit from time to time
Issued or outstanding under Article III, in an aggregate amount not to exceed on any
date the amount of $20,000,000, as the same shall be reduced as a result of a reduction in
the L/C Commitment pursuant to Section 2.05; provided that the L/C
Commitment is a part of the combined Commitments, rather than a separate, independent
commitment.




     “L/C Obligations” means at any time the sum of (a) the aggregate undrawn amount
of all Letters of Credit then outstanding, plus (b) the amount of all unreimbursed drawings
under all Letters of Credit, including all outstanding 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 1.04. 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 “International Standby Practices 1998” published by the Institute of
International Banking Law & Practice (or such later version thereof as may be in effect at
the time of Issuance), such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.




     “L/C-Related Documents” means the Letters of Credit, the L/C Applications, the
L/C Amendment Applications and any other document relating to any Letter of Credit,
including any of the Issuing Bank’s standard form documents for letter of credit Issuances.




     “Lender” has the meaning specified in the introductory clause hereto.
References to the “Lenders” shall include Bank of America, including in its capacity as
Issuing Bank and Swing Line Bank; for purposes of clarification only, to the extent that
Bank of America may have any rights or obligations in addition to those of the Lenders due
to its status as Issuing Bank, its status as such will be specifically referenced.




     “Lending Office” means, as to any Lender, the office or offices of such Lender
specified as its “Lending Office” or “Domestic Lending Office” or “Offshore Lending Office”,
as the case may be, on Schedule 11.02, or such other office or offices as such
Lender may from time to time notify the Company and the Agent.




     “Letter of Credit” means any (a) letter of credit (whether a commercial letter
of credit or standby letter of credit) that is Issued by the Issuing Bank pursuant to
Article III and (b) “Letter of Credit” outstanding on the Closing Date issued under
the Existing Credit Agreement.




     “Letter of Credit Expiration Date” means the day that is seven (7) days prior
to the Revolving Termination Date (or, if such day is not a Business Day, the next preceding
Business Day).



16









 






     “Leverage Ratio” means, with respect to the Company and its Subsidiaries (other
than Excluded Subsidiaries), on a consolidated basis, as of any date of determination, the
ratio of total consolidated Indebtedness (excluding the Convertible Debt) as of such date to
EBITDA for the twelve month period then most recently ended (taken as a single accounting
period) with respect to which the Company has delivered financial statements pursuant to
Section 7.01 (calculated giving pro forma effect to any Acquisitions which occurred
during such twelve month period as if such Acquisitions were consummated as of the first day
of such twelve month period and including adjustments as are permitted under Regulation S-X
of the SEC).




     “Lien” means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other),
charge or preference, priority or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever in respect of any property (including those
created by, arising under or evidenced by any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real property, the
interest of a lessor under a capital lease, any financing lease having substantially the
same economic effect as any of the foregoing, or the filing of any financing statement
naming the owner of the asset to which such lien relates as debtor, under the Uniform
Commercial Code or any comparable law) and any contingent or other agreement to provide any
of the foregoing (other than equal and ratable clauses), but not including the interest of a
lessor under an operating lease or arising from a transaction described in Section
9-109(a)(3) or (4) of the Uniform Commercial Code of the State of New York which is
otherwise permitted to be effected pursuant to this Agreement.




     “Loan” means an extension of credit by a Lender to the Company under
Article II or Article III in the form of a Revolving Loan, Swing Line Loan
or L/C Borrowing.




     “Loan Documents” means this Agreement, the Existing Credit Agreement, any
Notes, the Fee Letter, the L/C Related Documents, the Guaranty and all other documents and
certificates delivered to the Agent or any Lender in connection herewith, as the same may be
amended, restated, supplemented or otherwise modified from time to time.




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




     “Majority Lenders” means at any time, Lenders holding more than 50% of the then
aggregate Commitments or, if the Commitments have been terminated, Lenders holding more than
50% of the then unpaid principal amount of Loans and L/C Obligations; provided that
the Commitment of any Defaulting Lender shall be excluded for the purposes of making a
determination of Majority Lenders.




     “Margin Stock” means “margin stock” as such term is defined in Regulation T, U
or X of the FRB.




     “Material Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties or financial condition of the



17









 







Company and its Subsidiaries (other than Excluded Subsidiaries) taken as a whole, or of
the Company and its Subsidiaries (including Excluded Subsidiaries) taken as a whole; (b) a
material impairment of the ability of the Company or any Guarantor to perform under any Loan
Document and to avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the Company or any Guarantor of
any Loan Document.




     “Multiemployer Plan” means any employee benefit plan of the type described in
Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is
obligated to make contributions or, during the immediately preceding five plan (5) years,
has made, or been obligated to make, contributions.




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




     “Net Income” shall mean, for any period, the net income (or loss) of the
Company and its Subsidiaries (other than Excluded Subsidiaries) on a consolidated basis for
such period taken as a single accounting period determined in conformity with GAAP;
provided, that there shall be excluded from such determination, to the extent
otherwise included therein, (i) the income of any Subsidiary of the Company to the extent
that the declaration or payment of dividends or similar distributions by that Subsidiary of
that income is not at the time permitted by operation of the terms of, or without any
third-party consent required by, its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Subsidiary, (ii) any
non-cash goodwill or intangible asset impairment charges resulting from the application of
FAS 141, 141R or 142, as applicable, and non-cash charges relating to the amortization of
intangibles resulting from the application of FAS 141 or 141R, as applicable, (iii)
non-cash, deferred financing charges, (iv) income and losses with respect to operations
disposed of in accordance with Section 8.02 or with respect to “discontinued
operations” (as determined in accordance with GAAP), (v) gains and losses from dispositions
permitted under Section 8.02 or with respect to “discontinued operations” (as
determined in accordance with GAAP), (vi) non-cash charges related to the effect of changes
in accounting principles (all of which are in accordance with GAAP) and (vii) extraordinary
gains and losses.




     “Net Worth” means shareholders’ equity as determined in accordance with GAAP.




     “Non-Ratable Loan(s)” has the meaning set forth in Section 2.06.




     “Note” means a promissory note or an amended and restated promissory note, as
applicable, executed by the Company in favor of a Lender pursuant to Section
2.02(b), in substantially the form of Exhibit F-1, with respect to Revolving
Loans, and Exhibit F-2, with respect to the Swing Line Loan.




     “Notice of Borrowing” means a notice in substantially the form of
Exhibit A.



18









 






     “Notice of Conversion/Continuation” means a notice in substantially the form of
Exhibit B.




     “Obligations” means all advances, debts, liabilities, obligations, covenants
and duties arising under any Loan Document owing by the Company to any Lender, the Agent, or
any Indemnified Person, whether direct or indirect (including those acquired by assignment),
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 Company or
any Guarantor or any Affiliate thereof of any Insolvency Proceeding naming such Person as
the debtor in such Insolvency Proceeding regardless of whether such interest and fees are
allowed claims in such Insolvency Proceeding.




     “OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets
Control, and any successor thereto.




     “Organization Documents” means, for any corporation, the certificate or
articles of incorporation, the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, any shareholder rights
agreement, and all applicable resolutions of the board of directors (or any committee
thereof) of such corporation and for any limited liability company, the certificate of
formation, the operating agreement and any instruments relating to the rights of members of
such limited liability company and all applicable resolutions of the governing body of such
limited liability company.




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




     “Participant” has the meaning specified in Section 11.08(c).




     “PBGC” means the Pension Benefit Guaranty Corporation, or any Governmental
Authority succeeding to any of its principal functions under ERISA.




     “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
Company 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.



19









 






     “Permitted Acquisition” means an Acquisition which meets the following
criteria:




     (1) No Default or Event of Default has occurred and is continuing at the time of the
consummation of such Acquisition and no Default or Event of Default would occur after giving
effect to such Acquisition;




     (2) The target company or operations shall be in a same or similar line of business as
the Company or any of its Subsidiaries is engaged in;




     (3) The Leverage Ratio as of the date of such Acquisition (after giving pro forma
effect thereto such that the numerator thereof includes the effect of any Indebtedness
incurred or assumed in connection with such Acquisition and the denominator thereof is
calculated as if such Acquisition were consummated as of the first day of the twelve month
period most recently ended with respect to which the Company has delivered financial
statements pursuant to Section 7.01 and includes adjustments as are permitted under
Regulation S-X of the SEC) is less than (x) with respect to any Acquisition consummated on
or after May 1 of any calendar year but before February 1 of any calendar year, 2.75 to 1.00
or (y) with respect to any Acquisition consummated on or after February 1 of any calendar
year but before May 1 of any calendar year, 3.00 to 1.00;




     (4) Such Acquisition shall be consensual and shall have been approved by the applicable
target company’s or seller’s board of directors;




     (5) The Company shall have complied with Section 7.15 with respect to each new
Subsidiary created or acquired in connection with such Acquisition (other than Excluded
Subsidiaries); and




     (6) For each Acquisition with respect to which the sum of the Cash Consideration and
non-cash consideration paid, incurred or assumed by the Company exceeds $10,000,000, the
Company shall have delivered to the Agent and the Lenders a certificate executed by a
Responsible Officer, demonstrating to the satisfaction of the Agent that, after giving pro
forma effect to such Acquisition (calculated as if such Acquisition was consummated as of
the first day of the twelve month period most recently ended with respect to which the
Company has delivered financial statements pursuant to Section 7.01, including the
effect of any Indebtedness assumed in connection with such Acquisition, and including
adjustments as are permitted under Regulation S-X of the SEC, all such adjustments being
disclosed in reasonable detail), the Company is in compliance with clause (3) of
this definition, Section 8.04(k), if applicable, Section 8.15 and
Section 8.16, and certifying to clause (1) above.




     “Permitted Liens” has the meaning specified in Section 8.01.




     “Permitted Swap Obligations” means all obligations (contingent or otherwise) of
the Company or any Subsidiary existing or arising under Swap Contracts, provided that each
of the following criteria is satisfied: (a) 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 or assets held or reasonably anticipated by




20











 






such Person, or changes in the value of securities issued by such Person in conjunction
with a securities repurchase program not otherwise prohibited hereunder, and not for
purposes of speculation or taking a “market view” and (b) such Swap Contracts do not contain
any provision (“walk-away” provision) exonerating the non-defaulting party from its
obligation to make payments on outstanding transactions to the defaulting party.




     “Person” means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association, joint
venture or 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 Company or any ERISA
Affiliate or any such Plan to which the Company or any ERISA Affiliate is required to
contribute on behalf of any of its employees.




     “Platform” has the meaning specified in Section 7.02.




     “Private Placement Debt” means unsecured Indebtedness in an aggregate stated
principal amount of up to $150,000,000 issued pursuant to notes to be placed on behalf of
the Company after the date hereof and any refinancing or a replacement thereof, provided
that such Indebtedness and any refinancing or replacement thereof (a) is made under
documentation which contains covenants which are not materially more restrictive or onerous
in any respect than those set forth herein or are otherwise acceptable to the Agent, (b)
does not have a maturity date or any mandatory redemptions or similar obligations scheduled
to occur prior to the Revolving Termination Date, (c) is unsecured and (d) does not prohibit
the Company or any of its Subsidiaries from granting Liens or pledging assets in favor of
the Agent, other than a requirement that such Liens or pledges of assets secure the holders
of such Indebtedness (or an agent on their behalf) on an equal and ratable basis.




     “Property” means any interest in any kind of property or asset, whether real,
personal or mixed, and whether tangible or intangible.




     “Pro Rata Share” means, as to any Lender at any time, the percentage equivalent
(expressed as a decimal, rounded to the ninth decimal place) at such time of such Lender’s
Revolving Loan Commitment divided by the aggregate Revolving Loan Commitments of all
Lenders.




     “Reconciliation Certificate” means a certificate executed by a Responsible
Officer of the Company providing a reconciliation report of the Company and its Subsidiaries
on a consolidated basis, setting forth a calculation of the financial covenants set forth in
Sections 8.14 through 8.16 hereof, but, including, for the purposes of such
reconciliation, the financial information of all Excluded Subsidiaries of the Company to the
extent previously excluded from the calculation thereof, in a form and accompanied by such
detail and documentation as shall be requested by the Agent in its reasonable discretion.




     “Register” has the meaning specified in Section 11.08(b).



21









 






     “Rental Expense” means, for any period, the sum of (without duplication with
respect to gross lease arrangements): (a) all rental payments, (b) all common area
maintenance payments made pursuant to real property leases and (c) all real estate taxes
paid by the Company and its Subsidiaries (other than Excluded Subsidiaries) pursuant to real
property leases not constituting Capital Lease Obligations.




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




     “Requirement of Law” means, as to any Person, any law (statutory or common),
treaty, rule or regulation or determination of an arbitrator or of a Governmental Authority
not subject to a stay order issued by a court of competent jurisdiction, in each case
applicable to or binding upon the Person or any of its property or to which the Person or
any of its property is subject.




     “Responsible Officer” means the chief executive officer, chief operating
officer, the president, or the chief financial officer of the Company, or any other officer
having substantially the same authority and responsibility as the chief financial officer;
or, with respect to compliance with financial covenants, the chief financial officer, vice
president-finance, the treasurer or an assistant treasurer of the Company, or any other
officer having substantially the same authority and responsibility.




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




     “Revolving Loan Commitment”, as to each Lender, has the meaning specified in
Section 2.01.




     “Revolving Termination Date” means the earlier to occur of:




     (a) June 4, 2014; and




     (b) the date on which the Revolving Loan Commitments terminate in accordance with the
provisions of this Agreement.




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




     “Solvent” means, when used with respect to any Person, that as of any date of
determination, (a) the amount of the “present fair saleable value” of the assets of such
Person will as of such date, exceed the amount that will be required to pay all “liabilities
of such Person, contingent or otherwise” (whether or not reflected on a balance sheet
prepared in accordance with GAAP), as of such date (as such quoted terms are determined in
accordance with the Bankruptcy Code or other applicable bankruptcy, insolvency or other
debtor relief laws) as such debts become due and payable, (b) such Person will not have as
of such date, an unreasonably small amount of capital with which to conduct their business
taking into account the particular capital requirements of such Person and its projected
capital requirements and availability and (c) such Person will be able to pay their debts as
they mature, taking into account the timing of and amounts of



22









 






cash to be received by such Person, and the timing and amounts of cash to be payable on
or in respect of indebtedness of such Person. For the purposes of this definitions, (i)
“debt” means liability on a “claim”, and (ii) “claim” means any (x)
right to payment, whether or not such a right is reduced to judgment, liquidated, or
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, real or
equitable, secured or unsecured or (y) right to an equitable remedy for breach of
performance if such breach gives rise to a right of payment whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.




     “Specified Asset Sale” means each asset disposition described in Schedule
8.02 to this Agreement.




     “Subsidiary” of a Person means any corporation, association, partnership,
limited liability company, joint venture or other business entity of which more than 50% of
the voting stock, membership interests or other equity interests (in the case of Persons
other than corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof. Unless the context
otherwise clearly requires, references herein to a “Subsidiary” refer to a Subsidiary of the
Company.




     “Surety Instruments” means all letters of credit (including, without
limitation, standby, commercial and documentary), banker’s acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.




     “Swap Contract” means any agreement, whether or not in writing, relating to any
transaction that is a rate swap, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap or option, bond, note or bill option, interest
rate option, forward foreign exchange transaction, cap, collar or floor transaction,
currency swap, cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless the context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.




     “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 by the
Company based upon one or more mid-market or other readily available quotations provided by
any recognized dealer in such Swap Contracts (which may include any Lender).




     “Swing Line Bank” means Bank of America, in its capacity as provider of the
Swing Line Loans.



23









 






     “Swing Line Loan” has the meaning specified in Section 2.01(b).




     “Swing Line Loan Maximum Amount” has the meaning specified in Section
2.01(b).




     “Swing Line Rate” means the Base Rate.




     “Swing Line Termination Date” means the earlier to occur of:




     (a) June 4, 2014; and




     (b) the Revolving Termination Date.




     “Tangible Assets” means, as of any date of determination, for the Company and
its Subsidiaries on a consolidated basis, the total assets of the Company and its
Subsidiaries minus goodwill and other intangible assets of the Company and its Subsidiaries
on that date, as determined in accordance with GAAP.




     “Tangible Net Worth” means, as of any date of determination, for the Company
and its Subsidiaries on a consolidated basis, Net Worth minus goodwill and other intangible
assets of the Company and its Subsidiaries on that date, as determined in accordance with
GAAP.




     “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.




     “Total Leverage Ratio” means, with respect to the Company and its Subsidiaries
(other than Excluded Subsidiaries), on a consolidated basis, as of any date of
determination, the ratio of total consolidated Indebtedness as of such date to EBITDA for
the twelve month period then most recently ended (calculated giving pro forma effect to any
Acquisitions which occurred during such twelve month period as if such Acquisitions were
consummated as of the first day of such twelve month period and including adjustments as are
permitted under Regulation S-X of the SEC).




     “Type” means, with respect to any Borrowing, its nature as a Base Rate Loan or
an Eurodollar Rate Loan.




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




     “Unreimbursed Amount” has the meaning specified in Section 3.03(a).




     “United States” and “U.S.” each means the United States of America.



24









 






     “Wholly-Owned Subsidiary” means any corporation, association, partnership,
limited liability company, joint venture or other business entity in which (other than
directors’ or other qualifying shares required by law) 100% of the equity interests of each
class having ordinary voting power, and 100% of the equity interests of every other class,
in each case, at the time as of which any determination is being made, is owned,
beneficially and of record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.



     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, (A)
any definition of or reference to any agreement, instrument or other document (including any
Organization Document) shall be construed as referring to such agreement, instrument or other
document as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein or in any other Loan
Document), (B) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (C) 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, (D) 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, (E) 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 (F) the words “asset” and “property” shall be construed to have the same meaning and effect and
to refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.


          (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.


          (d) This Agreement and other Loan Documents may use several different limitations, tests or
measurements to regulate the same or similar matters. All such limitations, tests and measurements
are cumulative and shall each be performed in accordance with their terms.



25









 







          (e) This Agreement and the other Loan Documents are the result of negotiations among and have
been reviewed by counsel to the Agent, the Company and the other parties, and are the products of
all parties. Accordingly, they shall not be construed against the Lenders or the Agent merely
because of the Agent’s or Lenders’ involvement in their preparation.



     1.03 Accounting Principles.


          (a) Generally. Except as otherwise specifically prescribed herein, all accounting
terms not specifically or completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a
consistent basis, as in effect from time to time, applied in a manner consistent with that used in
preparing the audited annual consolidated financial statements of the Company and its Subsidiaries
dated December 31, 2009; provided, however, subject to clause (b) below, that for
purposes of all computations required to be made with respect to compliance by the Company with
Sections 8.14, 8.15, and 8.16 and the definition of the term “Permitted
Acquisition”, such terms and data shall made in accordance with GAAP as in effect on the date of
this Agreement, applied in a manner consistent with those used in preparing the financial
statements referred to in Section 6.11(a)(x) and (y). Notwithstanding the
foregoing, for purposes of determining compliance with any covenant (including the computation of
any financial covenant) contained herein, Indebtedness of the Company and its Subsidiaries shall be
deemed to be carried at 100% of the outstanding principal amount thereof, and the effects of FASB
ASC 825 and FASB ASC 470-20 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 Company or the
Majority Lenders shall so request, the Agent, the Lenders and the Company 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 Majority Lenders); provided that, until so amended,
(i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such
change therein and (ii) the Company shall provide to the Agent and the Lenders financial statements
and other documents required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.


          (c) References herein to “fiscal year” and “fiscal quarter” refer to such fiscal periods of
the Company.



     1.04 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 the L/C Application or any other document, agreement and
instrument entered into by the Issuing Bank and the Company (or any Subsidiary) or in favor of the
Issuing Bank and relating to such Letter of Credit, 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



26









 





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 CREDITS



     2.01 Amounts and Terms of Commitments.


          (a) Each Lender severally agrees, on the terms and conditions set forth herein, to make loans
to the Company (the “Revolving Loans”) from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate amount not to
exceed at any time the amount set forth on Schedule 2.01 for such Lender (such amount, as
the same may be reduced under Section 2.05 or as a result of one or more assignments under
Section 11.08, the Lender’s “Revolving Loan Commitment”); provided,
however, that, after giving effect to any Borrowing of Revolving Loans (exclusive of Revolving
Loans, Swing Line Loans and L/C Obligations which are repaid with the proceeds of, and
simultaneously with the incurrence of, the respective incurrence of Revolving Loans), the Effective
Amount of all outstanding Revolving Loans, Swing Line Loans and L/C Obligations, shall not at any
time exceed the aggregate Revolving Loan Commitment set forth on Schedule 2.01, as such may
be reduced under Section 2.05; and provided further, that the Effective
Amount of the Revolving Loans of any Lender plus the participation of such Lender in the Effective
Amount of all Swing Loan Loans and L/C Obligations shall not at any time exceed such Lender’s
Revolving Loan Commitment. Within the limits of each Lender’s Revolving Loan Commitment, and
subject to the other terms and conditions hereof, the Company may borrow under this Section
2.01(a), prepay under Section 2.06 and reborrow under this Section 2.01(a).


          (b) Subject to the terms and conditions set forth herein, the Swing Line Bank, in reliance
upon the agreements of the other Lenders set forth in Section 2.03(b), may, in its sole
discretion make loans to the Company (the “Swing Line Loans”) from time to time on any
Business Day during the period from the Closing Date to the Swing Line Termination Date in an
aggregate principal amount at any one time outstanding not to exceed $15,000,000 (the “Swing
Line Loan Maximum Amount”); provided, after giving effect to any Borrowing of Swing
Line Loans, the Effective Amount of all outstanding Swing Line Loans shall not at any time exceed
the Swing Line Loan Maximum Amount; provided, further, that the Effective Amount of
all outstanding Revolving Loans, Swing Line Loans and L/C Obligations shall not at any time exceed
the aggregate Revolving Loan Commitment. Prior to the Swing Line Termination Date, the Company may
use the Swing Line Loan Maximum Amount by borrowing, prepaying the Swing Line Loans in whole or in
part, and reborrowing, all in accordance with the terms and conditions hereof. All Swing Line
Loans shall bear interest at the Swing Line Rate and shall not be entitled to be converted into
Loans that bear interest at any other rate.



     2.02 Loan Accounts.


          (a) The Loans made by each Lender and the Letters of Credit Issued by the Issuing Bank shall
be evidenced by one or more accounts or records maintained by such Lender



27









 








or Issuing Bank, as the case may be, in the ordinary course of business. The accounts or
records maintained by the Agent, the Issuing Bank and each Lender shall be prima facie evidence of
the amount of the Loans made by the Lenders to the Company, and the Letters of Credit Issued for
the account of the Company, and the interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Company
hereunder to pay any amount owing with respect to the Loans or any Letter of Credit.



          (b) Upon the request of any Lender made through the Agent, the Loans made by such Lender may
be evidenced by one or more Notes, instead of or in addition to loan accounts. Each such Lender
shall record on the schedules annexed to its Note(s) the date, amount and maturity of each Loan
made by it and the amount of each payment of principal made by the Company with respect thereto.
Each such Lender is irrevocably authorized by the Company to make such recordations on its Note(s)
and each Lender’s record shall be deemed prima facie correct; provided, however,
that the failure of a Lender to make, or an error in making, a notation thereon with respect to any
Loan shall not limit or otherwise affect the obligations of the Company hereunder or under any such
Note to such Lender.



     2.03 Procedure for Borrowing.


          (a) Revolving Loans. (i) Each Borrowing (other than a L/C Borrowing or a Borrowing of
Swing Line Loans) shall be made upon the Company’s irrevocable written notice delivered to the
Agent in the form of a Notice of Borrowing (which notice must be received by the Agent prior to
10:00 a.m. (Chicago time) (x) three (3) Business Days prior to the requested Borrowing Date, in the
case of Eurodollar Rate Loans; provided, however, that if the Company wishes to
request Eurodollar Rate Loans having an Interest Period other than seven days, or one, two, three
or six months, in duration as provided in the definition of “Interest Period,” the applicable
notice must be received by the Agent not later than 10:00 a.m. (Chicago time) four (4) Business
Days prior to the requested date of such Borrowing, whereupon the Agent shall give prompt notice to
the Lenders of such request and determine whether the requested Interest Period is acceptable to
all of them and shall, not later than 10:00 a.m. (Chicago time) three (3) Business Days before the
requested date of such Borrowing, notify the Company (which notice may be by telephone) whether or
not the requested Interest Period has been consented to by all the Lenders, and (y) on the date of
the requested Borrowing Date, in the case of Base Rate Loans, specifying:




     (1) the amount of the Borrowing, which shall be in an aggregate minimum amount
of $500,000, or any multiple of $100,000 in excess thereof, in the case of Base Rate
Loans, and $1,000,000, or any multiple of $500,000 in excess thereof, in the case of
Eurodollar Rate Loans;




     (2) the requested Borrowing Date, which shall be a Business Day;




     (3) the Type of Loans comprising the Borrowing; and




     (4) the duration of the Interest Period applicable to such Eurodollar Rate
Loans included in such notice. If the Notice of Borrowing fails to specify the
duration of the Interest Period for any Borrowing comprised of Eurodollar Rate
Loans, such Interest Period shall be one month;



28









 





provided, however, that with respect to the Borrowing to be made on the Closing
Date, the Notice of Borrowing shall be delivered to the Agent not later than 10:00 a.m. (Chicago
time) on the Closing Date and such Borrowing will consist of Base Rate Loans only except as
provided in Section 2.04(g).



          (ii) The Agent will promptly notify each Lender of its receipt of any Notice of Borrowing and
of the amount of such Lender’s Pro Rata Share of that Borrowing.


          (iii) Each Lender will make the amount of its Pro Rata Share of each Borrowing available to
the Agent for the account of the Company at the Agent’s Payment Office by 12:00 noon (Chicago time)
on the Borrowing Date requested by the Company in funds immediately available to the Agent. The
Agent shall make available to the Company the proceeds of all such Loans received by the Agent from
Lenders, together with such additional amount, if any, as the Agent may elect to make available to
the Company in accordance with Section 2.13, by 2:00 p.m. (Chicago time) on such Borrowing
Date at such office by crediting the account of the Company on the books of Bank of America with
the aggregate of the amounts made available to the Agent by the Lenders and in like funds as
received by the Agent.


          (iv) After giving effect to any Borrowing, unless the Agent shall otherwise consent, there may
not be more than seven different Interest Periods in effect.


          (b) Swing Line Loans. (i) Subject to Section 2.01(b), the Company may borrow
under the Swing Line Loan Maximum Amount on any Business Day until the Swing Line Termination Date;
provided that the Company shall give the Agent irrevocable written notice (which notice
must be received by the Agent prior to 12:00 noon (Chicago time)) and the Agent shall promptly
deliver to the Company and the Swing Line Bank a confirmation of such notice specifying the amount
of the requested Swing Line Loan, which shall be in a minimum amount of $100,000 or a whole
multiple of $100,000 in excess thereof. The proceeds of the Swing Line Loan will be made available
by the Swing Line Bank to the Company in immediately available funds at the office of the Swing
Line Bank by 2:00 p.m. (Chicago time) on the date of such notice. The Company may at any time and
from time to time, prepay the Swing Line Loans, in whole or in part, without premium or penalty, by
notifying the Agent prior to 12:00 noon (Chicago time) on any Business Day of the date and amount
of prepayment. If any such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein. Partial prepayments shall be in an aggregate principal
amount of $100,000 or a whole multiple of $100,000 in excess thereof.


          (ii) The Agent, acting upon the demand of the Swing Line Bank, at any time in the Swing Line
Bank’s sole and absolute discretion, shall on behalf of the Company (which hereby irrevocably
directs the Agent to so act on its behalf) notify each Lender (including the Swing Line Bank) to
make a Revolving Loan to the Company in a principal amount equal to such Lender’s Pro Rata Share of
the amount of such Swing Line Loan, unless any Lender or Lenders shall be obligated, pursuant to
Section 2.01(a), to make funds available to the Agent on the date such notice is given in
an aggregate amount equal to or in excess of such Swing Line Loan, in which case such funds shall
be applied by the Agent first to repay such Swing Line Loan and any remaining funds shall be made
available to the Company in accordance with Section 2.01(a); provided,
however, that such notice shall be deemed to have automatically been



29









 








given upon the occurrence of an Event of Default under Section 9.01(f) or (g).
Upon notice from the Agent, following any demand by the Swing Line Bank each Lender (other than the
Swing Line Bank) will immediately transfer to the Agent, for transfer to the Swing Line Bank, in
immediately available funds, an amount equal to such Lender’s Pro Rata Share of the amount of such
Swing Line Loan so repaid. Each Lender’s obligation to transfer the amount of such Revolving Loan
to the Agent shall be absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right
which such Lender or any other Person may have against the Swing Line Bank, (ii) the occurrence or
continuance of a Default or an Event of Default or the termination of the Revolving Loan
Commitment, (iii) any adverse change in the condition (financial or otherwise) of the Company or
any other Person, (iv) any breach of this Agreement by the Company or any other Person or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.



          (iii) Notwithstanding anything herein to the contrary, the Swing Line Bank (i) shall not be
obligated to make any Swing Line Loan if the conditions set forth in Article V have not
been satisfied and (ii) shall not make any requested Swing Line Loan if, prior to 1:00 p.m.
(Chicago time) on the date of such requested Swing Line Loan, it has received a written notice from
the Agent or any Lender directing it not to make further Swing Line Loans because one or more of
the conditions specified in Article V are not then satisfied.


          (iv) If prior to the making of a Loan required to be made by Section 2.03(b)(ii) an
Event of Default described in Section 9.01(f) or 9.01(g) shall have occurred and be
continuing with respect to the Company, each Lender will, on the date such Loan was to have been
made pursuant to the notice described in Section 2.03(b)(ii), purchase an undivided
participating interest in the outstanding Swing Line Loans in an amount equal to its Pro Rata Share
of the aggregate principal amount of Swing Line Loans then outstanding. Each Lender will
immediately transfer to the Agent for the benefit of the Swing Line Bank, in immediately available
funds, the amount of its participation.


          (v) Whenever, at any time after a Lender has purchased a participating interest in a Swing
Line Loan, the Swing Line Bank receives any payment on account thereof, the Swing Line Bank will
distribute to the Agent for delivery to each Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period of time during
which such Lender’s participating interest was outstanding and funded); provided,
however, that in the event that such payment received by the Swing Line Bank is required to
be returned, such Lender will return to the Agent for delivery to the Swing Line Bank any portion
thereof previously distributed by the Swing Line Bank to it.


          (vi) Each Lender’s obligation to make the Loans referred to in Section 2.03(b)(ii) and
to purchase participating interests pursuant to Section 2.03(b)(iv) shall be absolute and
unconditional and shall not be affected by any circumstance, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other right which such Lender or the Company may have
against the Swing Line Bank, the Company or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the
condition (financial or otherwise) of the Company, (iv) any breach of this Agreement or any other
Loan Document by the Company, any Subsidiary or any other



30









 








Lender or (v) any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.




     2.04 Conversion and Continuation Elections.


          (a) The Company may, upon irrevocable written notice to the Agent in accordance with the
provisions of this Section 2.04:




          (i) elect, as of any Business Day, in the case of Base Rate Loans (other than Swing
Line Loans), or as of the last day of the applicable Interest Period, in the case of
Eurodollar Rate Loans, to convert any such Loans (or any part thereof in an aggregate
minimum amount of $500,000, or any multiple of $100,000 in excess thereof, in the case of
Base Rate Loans, and $1,000,000, or any multiple of $500,000 in excess thereof, in the case
of Eurodollar Rate Loans) into Loans of any other Type; or




          (ii) elect as of the last day of the applicable Interest Period, to continue any Loans
having Interest Periods expiring on such day (or any part thereof in an amount not less than
$1,000,000, or that is in an integral multiple of $500,000 in excess thereof);



provided, that if at any time the aggregate amount of Eurodollar Rate Loans in respect of
any Borrowing is reduced, by payment, prepayment, or conversion of part thereof to be less than
$1,000,000, such Eurodollar Rate Loans shall automatically convert into Base Rate Loans, and on and
after such date the right of the Company to continue such Loans as, and convert such Loans into,
Eurodollar Rate Loans shall terminate.



          (b) The Company shall deliver a Notice of Conversion/Continuation to be received by the Agent
not later than 10:00 a.m. (Chicago time) at least (i) three (3) Business Days in advance of the
Conversion/Continuation Date, if the Loans are to be converted into or continued as Eurodollar Rate
Loans; provided, however, that if the Company wishes to request Eurodollar Rate
Loans having an Interest Period other than seven days, or one, two, three or six months, in
duration as provided in the definition of “Interest Period,” the applicable notice must be received
by the Agent not later than 10:00 a.m. (Chicago time) four (4) Business Days prior to the requested
Conversion/Continuation Date, whereupon the Agent shall give prompt notice to the Lenders of such
request and determine whether the requested Interest Period is acceptable to all of them and shall,
not later than 10:00 a.m. (Chicago time) three (3) Business Days before the requested
Conversion/Continuation Date, notify the Company (which notice may be by telephone) whether or not
the requested Interest Period has been consented to by all the Lenders, and (ii) on the date of the
Conversion/Continuation Date, if the Loans are to be converted into Base Rate Loans, specifying:




          (i) the proposed Conversion/Continuation Date;




          (ii) the aggregate amount of Loans to be converted or continued;




          (iii) the Type of Loans resulting from the proposed conversion or continuation; and



31









 






          (iv) other than in the case of conversions into Base Rate Loans, the duration of the
requested Interest Period.


          (c) If upon the expiration of any Interest Period applicable to Eurodollar Rate Loans, the
Company has failed to submit or complete a notice in accordance with Section 2.04(b), the
Company shall be deemed to have elected to convert such Eurodollar Rate Loans into a one month
Eurodollar Rate Loan, provided, however, if any Default or Event of Default then
exits, the Company shall be deemed to have elected to convert such Eurodollar Rate Loans into a
Base Rate Loan.


          (d) The Agent will promptly notify each Lender of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by the Company, the Agent will
promptly notify each Lender of the details of any automatic continuation or conversion. All
conversions and continuations shall be made ratably according to the respective outstanding
principal amounts of the Loans, with respect to which the notice was given, held by each Lender.


          (e) Unless the Majority Lenders otherwise consent, during the existence of a Default or Event
of Default, the Company may not elect to have a Loan converted into or continued as an Eurodollar
Rate Loan.


          (f) After giving effect to any conversion or continuation of Eurodollar Rate Loans, unless the
Agent shall otherwise consent, there may not be more than ten (10) different Interest Periods in
effect.


          (g) Notwithstanding anything herein to the contrary, the initial Loans made on the Closing
Date shall be of the same Type, shall have the same remaining Interest Period, and shall have the
same Eurodollar Rate, in each case as in effect with respect to the outstanding “Eurodollar Rate
Loans,” if any, that exist under the Existing Credit Agreement as of the Closing Date.



     2.05 Termination or Reduction of Commitments.


          (a) The Company may, upon not less than three (3) Business Days’ prior written notice to the
Agent, terminate the Commitments, or permanently reduce the Commitments by an aggregate minimum
amount of $1,000,000 or any multiple of $1,000,000 in excess thereof; unless, after giving
effect thereto and to any prepayments of Revolving Loans made on the effective date thereof, (i)
the Effective Amount of all Revolving Loans, Swing Line Loans and L/C Obligations would exceed the
amount of the Commitments then in effect, (ii) the Effective Amount of all Swing Line Loans then
outstanding would exceed the Swing Line Loan Maximum Amount or (iii) the Effective Amount of all
L/C Obligations would exceed the L/C Commitment. If and to the extent specified by the Company in
the notice to the Agent, some or all of the reduction in the Commitments shall be applied to reduce
the L/C Commitment. Once reduced in accordance with this Section, the Commitments may not be
increased. Any reduction of the Commitments shall be applied to each Lender according to its Pro
Rata Share. All accrued Commitment Fees and letter of credit fees to, but not including, the
effective date of any reduction or termination of the Commitments shall be paid on the effective
date of such reduction or termination.



32









 







          (b) If at any time, and from time to time, the stated principal amount of the Private
Placement Debt shall exceed $75,000,000, the Revolving Loan Commitment of each Lender shall
immediately thereupon be decreased in an amount equal to such Lender’s Pro Rata Share of such
excess. All accrued Commitment Fees and letter of credit fees to, but not including, the effective
date of any reduction or termination of the Commitments shall be paid on the effective date of such
reduction or termination.



     2.06 Optional Prepayments. Subject to Section 4.04, the Company may, at any
time or from time to time, upon irrevocable notice to the Agent by 10:00 a.m. (Chicago time),
prepay Loans ratably among the Lenders in whole or in part without penalty, in minimum amounts of
$500,000, or any multiple of $100,000 in excess thereof, in the case of Base Rate Loans, and
$500,000, or any multiple of $500,000 in excess thereof, in the case of Eurodollar Rate Loans;
provided that if due to a Defaulting Lender’s failure to fund any requested Borrowing,
Loans are made not in accordance with the Lenders’ respective Pro Rata Shares (each such Loan, a
“Non-Ratable Loan”) then such prepayment shall be applied first to Non-Ratable Loans then
in the order that the Company may specify. Such notice of prepayment shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. The Agent will promptly notify
each Lender of its receipt of any such notice, and of such Lender’s Pro Rata Share of such
prepayment. If such notice is given by the Company, the Company shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date specified therein,
together with accrued interest to each such date on the amount prepaid and any amounts required
pursuant to Section 4.04.



     2.07 Mandatory Prepayments of Loans.


          (a) The Company shall promptly, but in any event within two (2) Business Days, prepay the
outstanding principal amount of the Revolving Loans or Swing Line Loans on any date on which the
aggregate outstanding principal amount of such Loans together with the Effective Amount of the L/C
Obligations (after giving effect to any other repayments or prepayments on such day) exceeds the
aggregate Revolving Loan Commitment, including, without limitation, due to a reduction of the
Revolving Loan Commitment pursuant to Section 2.05(b), in the amount of such excess, or if
any such excess remains after a prepayment in full hereunder of all outstanding Loans, the Company
shall Cash Collateralize the outstanding Letters of Credit to the extent of such remaining excess.


          (b) If on any date the Effective Amount of L/C Obligations exceeds the L/C Commitment, the
Company shall Cash Collateralize on such date the outstanding Letters of Credit in an amount equal
to the excess of the maximum amount then available to be drawn under the Letters of Credit over the
aggregate L/C Commitment.


          (c) General. Any prepayments pursuant to this Section 2.07 shall be applied
first to any Base Rate Loans then outstanding and then to Eurodollar Rate Loans with the shortest
Interest Periods remaining; provided that if due to a Defaulting Lender’s failure to fund
any requested Borrowing, there are Non-Ratable Loans outstanding at the time of any prepayment,
such prepayment shall be applied first to Non-Ratable Loans and then in accordance with the
foregoing order. The Company shall pay, together with each prepayment under this



33









 








Section 2.07, accrued interest on the amount prepaid and any amounts required pursuant
to Section 4.04.




     2.08 Repayment.


          (a) Revolving Loans. The Company shall repay to the Lenders on the Revolving
Termination Date the aggregate principal amount of Revolving Loans outstanding on such date.


          (b) Swing Line Loans. The Company shall repay to the Swing Line Bank on the Swing
Line Termination Date the aggregate principal amount of Swing Line Loans outstanding on such date.



     2.09 Interest.


          (a) Each Loan (other than Swing Line Loans) shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to either the
Eurodollar Rate or the Base Rate, as the case may be, plus the Applicable Margin (and
subject to the Company’s right to convert to other Types of Loans under Section 2.04).
Swing Line Loans shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to the Swing Line Rate.


          (b) Interest on each Loan shall be paid in arrears on each Interest Payment Date. Interest
shall also be paid on the date of any prepayment of Loans under Section 2.06 or
2.07 for the portion of the Loans so prepaid and upon payment (including prepayment) in
full thereof and, during the existence of any Event of Default, interest shall be paid on demand of
the Agent at the request or with the consent of the Majority Lenders.


          (c) Notwithstanding Section 2.09(a), while any Event of Default exists or after
acceleration, the Company shall pay interest (after as well as before entry of judgment thereon to
the extent permitted by law) on the principal amount of all outstanding Obligations, at a rate per
annum which is determined by adding 2% per annum to the Applicable Margin then in effect for such
Loans; and in the case of Obligations not subject to an Applicable Margin, at a rate per annum
equal to the Base Rate plus 2%; provided, however, that, on and after the
expiration of any Interest Period applicable to any Eurodollar Rate Loan outstanding on the date of
occurrence of such Event of Default or acceleration, the principal amount of such Loan shall,
during the continuation of such Event of Default or after acceleration, bear interest at a rate per
annum equal to the Base Rate plus 2% (the “Default Rate”).


          (d) 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 Highest Lawful Rate. If the
Agent or any Lender shall receive interest in an amount that exceeds the Highest Lawful Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Company. In determining whether the interest contracted for, charged,
or received by the Agent or a Lender exceeds the Highest Lawful 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



34









 








unequal parts the total amount of interest throughout the actual term of the Obligations
hereunder.




     2.10 Fees.


          (a) Agency Fees. The Company shall pay the fees to the Agent for the Agent’s own
account, as required by the letter agreement (“Fee Letter”) among the Company, the Arranger
and the Agent, dated May 3, 2010.


          (b) Commitment Fees. The Company shall pay to the Agent for the account of each
Lender a commitment fee (“Commitment Fee”) on the average daily unused portion of such
Lender’s Revolving Loan Commitment, computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter based upon the daily utilization for that quarter as calculated by the
Agent, at the Applicable Margin per annum. For purposes of calculating utilization under this
Section, the Revolving Loan Commitment shall be deemed used to the extent of the Effective Amount
of Revolving Loans then outstanding, plus the Effective Amount of L/C Obligations then
outstanding but excluding for the purposes of calculating utilization under this Section the
Effective Amount of Swing Line Loans. Such commitment fee shall accrue from the Closing Date to
the Revolving Termination Date and shall be due and payable quarterly in arrears on the last
Business Day of each March, June, September and December through the Revolving Termination Date,
with the final payment to be made on the Revolving Termination Date; provided that, in connection
with any reduction or termination of Revolving Loan Commitment under Section 2.05, the
accrued commitment fee calculated for the period ending on such date shall also be paid on the date
of such reduction or termination, with the following quarterly payment being calculated on the
basis of the period from such reduction or termination date to such quarterly payment date. The
commitment fees provided in this Section shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions in Article V
are not met.



     2.11 Computation of Fees and Interest.


          (a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank
of America’s “reference 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 interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during each period during
which interest or such fees are computed from the first day thereof to the last day thereof.


          (b) Each determination of an interest rate by the Agent shall be conclusive and binding on the
Company and the Lenders and shall be prima facie evidence of such interest rate. The Agent will,
at the request of the Company or any Lender, deliver to the Company or the Lender, as the case may
be, a statement showing the quotations used by the Agent in determining any interest rate and the
resulting interest rate.


          (c) If, as a result of any restatement of or other adjustment to the financial statements of
the Company or for any other reason, the Company or the Lenders determine that



35









 








(i) the Total Leverage Ratio as calculated by the Company as of any applicable date was
inaccurate and (ii) a proper calculation of the Total Leverage Ratio would have resulted in higher
pricing for such period, the Company shall immediately and retroactively be obligated to pay to the
Agent for the account of the Lenders, promptly on demand by the Agent (or, after the occurrence of
an actual or deemed entry of an order for relief with respect to the Company under the Bankruptcy
Code, automatically and without further action by the Agent, any Lender or the Issuing Bank), an
amount equal to the excess of the amount of interest and fees that should have been paid for such
period over the amount of interest and fees actually paid for such period. This paragraph shall
not limit the rights of the Agent, any Lender or the Issuing Bank, as the case may be, under
Section 2.09(c) or 3.03(c) or under Article IX. The Company’s obligations
under this paragraph shall survive the termination of the Commitments and the repayment of all
other Obligations hereunder.




     2.12 Payments by the Company.


          (a) All payments to be made by the Company shall be made without condition or deduction for
any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein,
all payments by the Company shall be made to the Agent for the account of the Lenders at the
Agent’s Payment Office, and shall be made in dollars and in immediately available funds, (i) solely
for the purpose of calculating the accrual of interest on the outstanding Obligations, no later
than 12:00 Noon (Chicago time) on the date specified herein and (ii) for all other purposes, no
later than 5:00 PM (Chicago time) on the date specified herein. The Agent will promptly distribute
to each Lender its Pro Rata Share (or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Agent later than the time specified
herein shall be deemed to have been received on the following Business Day and any applicable
interest or fees shall continue to accrue for the day actually received.


          (b) Subject to the provisions set forth in the definition of “Interest Period” herein,
whenever any payment is due on a day other than a Business Day, such payment shall be made on the
following Business Day, and such extension of time shall in such case be included in the
computation of interest or fees, as the case may be.


          (c) Unless the Agent receives notice from the Company prior to the date on which any payment
is due to the Lenders that the Company will not make such payment in full as and when required, the
Agent may assume that the Company has made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent the Company has not made such payment in full to the Agent, each
Lender shall repay to the Agent on demand such amount distributed to such Lender, together with
interest thereon at the Federal Funds Rate for each day from the date such amount is distributed to
such Lender until the date repaid.



     2.13 Payments by the Lenders to the Agent.


          (a) Unless the Agent shall have received notice from a Lender prior to the proposed date of
any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of



36









 








Base Rate Loans, prior to 11:00 a.m. (Chicago time) on the date of such Borrowing) that such
Lender will not make available as and when required hereunder to the Agent for the account of the
Company the amount of that Lender’s Pro Rata Share of the Borrowing, the Agent may assume that each
Lender has made such amount available to the Agent in immediately available funds on the Borrowing
Date (and, in the case of a Borrowing of Base Rate Loans, that each Lender has made such amount at
the time required by Section 2.03) and the Agent may (but shall not be so required), in
reliance upon such assumption, make available to the Company on such date a corresponding amount.
If and to the extent any Lender shall not have made its full amount available to the Agent in
immediately available funds and the Agent in such circumstances has made available to the Company
such amount, such Lender and the Company severally agree to pay to the 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 Company to but excluding the date of
payment to the 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 Agent in accordance with banking industry rules on
interbank compensation, plus any administrative, processing or similar fees customarily
charged by the Agent in connection with the foregoing, and (B) in the case of a payment to be made
by the Company, the interest rate applicable to Base Rate Loans. If the Company and such Lender
shall pay such interest to the Agent for the same or an overlapping period, the Agent shall
promptly remit to the Company the amount of such interest paid by the Company for such period. If
the Company makes any payment to the Agent in respect of any Lender’s unfunded share of a
Borrowing, the amount of such Lender’s Loan included in such Borrowing shall be reduced by the
amount paid to the Company. If such Lender pays its share of the applicable Borrowing to the
Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing and,
if the Company has made any payment in respect of such Lender’s share under this Section, the Agent
shall forward such amounts to the Company. Any payment by the Company shall be without prejudice
to any claim the Company may have against a Lender that shall have failed to make such payment to
the Agent



          (b) The obligations of the Lenders hereunder to make Revolving Loans, to fund participations
in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.07
are several and not joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any payment under Section 10.07 on any date required hereunder
shall not relieve any other Lender of its corresponding obligation to do so on such date, and,
except as otherwise provided herein, no Lender shall be responsible for the failure of any other
Lender to so make its Loan, to purchase its participation or to make its payment under Section
10.07.



     2.14 Sharing of Payments, Etc. If, other than as expressly provided elsewhere herein,
any Lender shall obtain on account of the Loans made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in excess of its ratable
share (or other share contemplated hereunder), such Lender shall immediately (a) notify the Agent
of such fact, and (b) purchase from the other Lenders such participations in the Loans made by them
as shall be necessary to cause such purchasing Lender to share the excess payment pro rata with
each of them; provided, however, that if all or any portion of such excess payment
is thereafter recovered from the purchasing Lender, such purchase shall to that extent be rescinded
and each other Lender shall repay to the purchasing Lender the purchase price paid



37









 





therefor, together with an amount equal to such paying Lender’s ratable share (according to
the proportion of (i) the amount of such paying Lender’s required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or other amount paid or payable by
the purchasing Lender in respect of the total amount so recovered. The Company agrees that any
Lender so purchasing a participation from another Lender may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off, but subject to Section
11.10) with respect to such participation as fully as if such Lender were the direct creditor
of the Company in the amount of such participation. The Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or repayments.



2.15 Cash Collateral.



          (a) Certain Credit Support Events. Upon the request of the Agent or the Issuing Bank
(i) if the Issuing Bank 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 Company 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 Agent, the
Issuing Bank or the Swing Line Bank, the Company shall deliver to the 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).


          (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 (or
interest bearing if the Agent so agrees) deposit accounts at Bank of America. The Company, and to
the extent provided by any Lender, such Lender, hereby grants to (and subjects to the control of)
the Agent, for the benefit of the Agent, the Issuing Bank and the Lenders (including the Swing Line
Bank), 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 Agent
determines that Cash Collateral is subject to any right or claim of any Person other than the 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 Company or the relevant Defaulting
Lender will, promptly upon demand by the Agent, pay or provide to the 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
2.07, 2.16, 3.01or 9.02 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 


38









 







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 11.08(f))) or (ii) the Agent’s good faith determination
that there exists excess Cash Collateral; provided, however, (x) that Cash Collateral furnished by
or on behalf of the Company shall not be released during the continuance of a Default or Event of
Default, and (y) the Person providing Cash Collateral and the Issuing Bank or Swing Line Bank, 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 11.01.




          (ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Agent for the account of that Defaulting Lender (whether
voluntary or mandatory, at maturity, pursuant to Article IX or otherwise, and including any
amounts made available to the Agent by that Defaulting Lender pursuant to Section
11.10), shall be applied at such time or times as may be determined by the Agent as
follows: first, to the payment of any amounts owing by that Defaulting Lender to the Agent
hereunder; second, to the payment on a pro rata basis of any amounts owing by that
Defaulting Lender to the Issuing Bank or Swing Line Bank hereunder; third, if so determined
by the Agent or requested by the Issuing Bank or Swing Line Bank, 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 Company 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 Agent; fifth, if so determined by the Agent and the Company, to be held in
a non-interest bearing deposit account and released in order to satisfy obligations of that
Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts
owing to the Lenders, the Issuing Bank or Swing Line Bank as a result of any judgment of a
court of competent jurisdiction obtained by any Lender, the Issuing Bank or Swing Line Bank
against that Defaulting Lender as a result of that Defaulting Lender’s breach of its
obligations under this Agreement; seventh, so long as no Default or Event of Default exists,
to the payment of any amounts owing to the Company as a result of any judgment of a court of
competent jurisdiction obtained by the Company 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 5.02 were



39









 






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 2.10(b) for any period during which
that Lender is a Defaulting Lender (and the Company 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 3.08.




          (iv) Reallocation of Pro Rata Shares 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(b), 3.02
and 3.03, the “Pro Rata Share” of each non-Defaulting Lender shall be computed
without giving effect to the Commitment of that Defaulting Lender; provided, that,
(i) each such reallocation shall be given effect only if, at the date the applicable Lender
becomes a Defaulting Lender, no Default or Event of Default exists; and (ii) the aggregate
obligation of each non-Defaulting Lender to acquire, refinance or fund participations in
Letters of Credit and Swing Line Loans shall not exceed the positive difference, if any, of
(1) the Commitment of that non-Defaulting Lender minus (2) the aggregate outstanding
principal amount of the Loans of that Lender.


          (b) Defaulting Lender Cure. If the Company, the Agent, Swing Line Bank and the
Issuing Bank agree in writing in their sole discretion that a Defaulting Lender should no longer be
deemed to be a Defaulting Lender, the 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 Agent may determine to be necessary to cause the 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 Pro Rata Shares (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 Company 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.


          (c) With respect to any Cash Collateral provided by the Company in connection with a Swing
Line Loan or Letter of Credit due to the existence of a Defaulting Lender, the relevant Defaulting
Lender shall pay to the Company the amount of the Company’s



40









 








“negative carry” with respect to such
Cash Collateral which the parties hereto agree shall be equal to interest accruing at a rate equal
to the Base Rate plus the Applicable Margin on the amount of such Cash Collateral during
the period it was provided to the Swing Line Bank or Issuing Bank, as applicable, less any
interest income earned on such Cash Collateral.




ARTICLE III




THE LETTERS OF CREDIT



     3.01 The Letter of Credit Subfacility.


          (a) On the terms and conditions set forth herein (i) the Issuing Bank agrees, in reliance upon
the agreements of the Lenders set forth in this Article III, (A) from time to time on any
Business Day during the period from the Closing Date to the Revolving Termination Date to Issue
Letters of Credit for the account of the Company or any Subsidiary of the Company, and to amend or
renew Letters of Credit previously Issued by it, in accordance with Sections 3.02(c) and
(d), and (B) to honor drafts under the Letters of Credit; and (ii) the Lenders severally agree to
participate in Letters of Credit Issued for the account of the Company; provided, that the
Issuing Bank shall not be obligated to Issue, and no Lender shall be obligated to participate in,
any Letter of Credit if as of the date of Issuance of such Letter of Credit (the “Issuance
Date”) (1) the Effective Amount of all L/C Obligations and Swing Line Loans plus the Effective
Amount of all Revolving Loans exceeds the aggregate Revolving Loan Commitment, (2) the
participation of any Lender in the Effective Amount of all L/C Obligations and Swing Line Loans
plus the Effective Amount of the Revolving Loans of such Lender exceeds such Lender’s Revolving
Loan Commitment or (3) the Effective Amount of L/C Obligations exceeds the L/C Commitment. Within
the foregoing limits, and subject to the other terms and conditions hereof, the Company’s ability
to obtain Letters of Credit shall be fully revolving, and, accordingly, the Company may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit which have expired or which
have been drawn upon and reimbursed.


          (b) The Issuing Bank shall not Issue any Letter of Credit if:




          (i) subject to Section 3.02(c), the expiry date of the requested Letter of
Credit would occur more than twelve (12) months after the date of issuance, unless the
Required Lenders approved such expiry date; or




          (ii) 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.


          (c) The Issuing Bank is under no obligation to Issue any Letter of Credit if:




          (i) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain the Issuing Bank from Issuing such Letter of Credit,
or any Requirement of Law applicable to the Issuing Bank or any request or directive
(whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Bank shall prohibit, or request that the
Issuing Bank refrain from, the Issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Issuing Bank with respect to such Letter of



41









 







Credit any restriction, reserve or capital requirement (for which the Issuing Bank is not
otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon the
Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing
Date and which the Issuing Bank in good faith deems material to it;




          (ii) the Issuing Bank has received written notice from any Lender, the Agent or the
Company, on or prior to the Business Day prior to the requested date of Issuance of such
Letter of Credit, that one or more of the applicable conditions contained in Article
V is not then satisfied;




          (iii) any requested Letter of Credit is not otherwise in form and substance reasonably
acceptable to the Issuing Bank, or the Issuance of a Letter of Credit shall violate one or
more policies of the Issuing Bank applicable to letters of credit generally;




          (iv) such Letter of Credit is in a face amount less than $25,000, unless such lesser
amount is approved by the Agent and the Issuing Bank, or is to be denominated in a currency
other than Dollars; or




          (v) any Lender is at that time a Defaulting Lender, unless the Issuing Bank has
entered into arrangements, including the delivery of Cash Collateral, satisfactory to the
Issuing Bank (in its sole discretion) with the Company or such Lender to eliminate the
Issuing Bank’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 Issuing Bank has actual or potential Fronting Exposure, as it may elect in its
sole discretion.



     3.02 Issuance, Amendment and Renewal of Letters of Credit.


          (a) Each Letter of Credit shall be Issued or amended, as the case may be, upon the request of
the Company delivered to the Issuing Bank (with a copy to the Agent) in the form of an L/C
Application or an L/C Amendment Application, as applicable, appropriately completed and signed by a
Responsible Officer of the Company. Such L/C Application or L/C Amendment Application must be
received by the Issuing Bank and the Agent not later than 10:00 a.m. (Chicago time) at least two
(2) Business Days (or such later date and time as the Agent and the Issuing Bank 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 L/C Application shall specify in form and detail satisfactory to the Issuing Bank: (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 Issuing Bank may require. In the case of a request for an amendment of any outstanding Letter of Credit, such L/C Amendment Application shall specify in
form and detail satisfactory to the Issuing Bank (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



42









 








proposed
amendment; and (D) such other matters as the Issuing Bank may require. Additionally, the Company
shall furnish to the Issuing Bank and the Agent such other documents and information pertaining to
such requested Letter of Credit Issuance or amendment, including any Issuer Documents, as the
Issuing Bank or the Agent may require.



          (b) Promptly after receipt of any L/C Application or L/C Amendment Application, the Issuing
Bank will confirm with the Agent (by telephone or in writing) that the Agent has received a copy
thereof from the Company and, if not, the Issuing Bank will provide the Agent with a copy thereof.
Unless the Issuing Bank has received written notice from any Lender, the Agent or the Company, at
least one (1) 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 V shall not
then be satisfied, then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, Issue a Letter of Credit for the account of the Company or enter into the
applicable amendment, as the case may be, in each case in accordance with the Issuing Bank’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
Issuing Bank a risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Pro Rata Share times the amount of such Letter of Credit.


          (c) If the Company so requests in any applicable L/C Application or L/C Amendment Application,
the Issuing Bank may, in its sole discretion, agree to Issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided that
any such Auto-Extension Letter of Credit must permit the Issuing Bank to prevent any such extension
at least once in each twelve-month period (commencing with the date of issuance of such Letter of
Credit) by giving prior notice to the beneficiary thereof not later than a day (the
“Non-Extension Notice Date”) in each such twelve-month period to be agreed upon at the time
such Letter of Credit is issued. Unless otherwise directed by the Issuing Bank, the Company shall
not be required to make a specific request to the Issuing Bank for any such extension. Once an
Auto-Extension Letter of Credit has been issued, the Lenders shall be deemed to have authorized
(but may not require) the Issuing Bank to permit the extension of such Letter of Credit at any time
to an expiry date not later than the Letter of Credit Expiration Date; provided,
however, that the Issuing Bank shall not permit any such extension if (A) the Issuing Bank
has determined that it would not be permitted, or would have no obligation, at such time to issue
such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the
provisions of Section 3.01(b) or (c) or otherwise), or (B) it has received notice
(which may be by telephone or in writing) on or before the day that is seven Business Days before
the Non-Extension Notice Date (1) from the Agent that the Majority Lenders have elected not to
permit such extension or (2) from the Agent, any Lender or the Company that one or more of the
applicable conditions specified in Section 5.02 is not then satisfied, and in each such
case directing the Issuing Bank not to permit such extension.


          (d) The Issuing Bank may, at its election (or as required by the Agent at the direction of the
Majority Lenders), deliver any notices of termination or other communications to
any Letter of Credit beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the expiry date of such Letter of
Credit to be a date not later than the Revolving Termination Date.



43









 







          (e) This Agreement shall control in the event of any conflict with any L/C-Related Document
(other than any Letter of Credit).


          (f) 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 Issuing Bank will also
deliver to the Company and the Agent a true and complete copy of such Letter of Credit or
amendment.



     3.03 Drawings and Reimbursements.


          (a) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under
such Letter of Credit, the Issuing Bank shall notify the Company and the Agent thereof. Not later
than 10:00 a.m. (Chicago time) on the date of any payment by the Issuing Bank under a Letter of
Credit (each such date, an “Honor Date”), the Company shall reimburse the Issuing Bank
through the Agent in an amount equal to the amount of such drawing. If the Company fails to so
reimburse the Issuing Bank by such time, the 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 Pro Rata Share thereof. In such event, the Company shall be deemed to have requested
a 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 2.03
for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of
the Commitments and the conditions set forth in Section 5.02. Any notice given by the
Issuing Bank or the Agent pursuant to this Section 3.03(a) 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.


          (b) Each Lender shall upon any notice pursuant to Section 3.03(a) make funds available
(and the Agent may apply Cash Collateral provided for this purpose) for the account of the Issuing
Bank at the Agent’s Payment Office in an amount equal to its Pro Rata Share of the Unreimbursed
Amount not later than 12:00 noon (Chicago time) on the Business Day specified in such notice by the
Agent, whereupon, subject to the provisions of Section 3.03(c), each Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to the Company in such amount. The
Agent shall remit the funds so received to the Issuing Bank.


          (c) With respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing of
Base Rate Loans because the conditions set forth in Section 5.02 cannot be satisfied or for
any other reason or Cash Collateralized, the Company shall be deemed to have incurred from the
Issuing Bank an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced or
Cash Collateralized, 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
Agent for the account of the Issuing Bank pursuant to Section 3.03(b) 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 Article III.


          (d) Until each Lender funds its Loan or L/C Advance pursuant to this Section 3.03 to
reimburse the Issuing Bank for any amount drawn under any Letter of Credit, interest in



44









 








respect of
such Lender’s Pro Rata Share of such amount shall be solely for the account of the Issuing Bank.



          (e) Each Lender’s obligation to make Loans or L/C Advances to reimburse the Issuing Bank for
amounts drawn under Letters of Credit, as contemplated by this Section 3.03, 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 Issuing
Bank, the Company or any other Person for any reason whatsoever; (B) the occurrence or continuance
of a Default or an Event of 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 Loans pursuant to this Section 3.03 is subject to the conditions set
forth in Section 5.02. No such making of an L/C Advance shall relieve or otherwise impair
the obligation of the Company to reimburse the Issuing Bank for the amount of any payment made by
the Issuing Bank under any Letter of Credit, together with interest as provided herein.


          (f) If any Lender fails to make available to the Agent for the account of the Issuing Bank any
amount required to be paid by such Lender pursuant to the foregoing provisions of this Section
3.03 by the time specified in Section 3.03(b), then, without limiting the other
provisions of this Agreement, the Issuing Bank shall be entitled to recover from such Lender
(acting through the 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
Issuing Bank at a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Issuing Bank in accordance with banking industry rules on interbank compensation,
plus any administrative, processing or similar fees customarily charged by the Issuing Bank in
connection with the foregoing. If such Lender pays such amount (with interest and fees as
aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant
Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A
certificate of the Issuing Bank submitted to any Lender (through the Agent) with respect to any
amounts owing under this clause (f) shall be conclusive absent manifest error.



     3.04 Repayment of Participations.


          (a) At any time after the Issuing Bank 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 3.03, if the Agent receives for the account of the Issuing Bank any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly from the Company
or otherwise, including proceeds of Cash Collateral applied thereto by the Agent), the Agent will
distribute to such Lender its Pro Rata Share thereof in the same funds as those received by the
Agent.


          (b) If any payment received by the Agent for the account of the Issuing Bank pursuant to
Section 3.03(a) is required to be returned under any of the circumstances described in
Section 11.06 (including pursuant to any settlement entered into by the Issuing Bank in its
discretion), each Lender shall pay to the Agent for the account of the Issuing Bank its Pro Rata
Share thereof on demand of the 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 


45









 







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.




     3.05 Role of the Issuing Bank. Each Lender and the Company agree that, in paying any
drawing under a Letter of Credit, the Issuing Bank 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 Issuing Bank, the
Agent, any of their respective Affiliates, any of their or their respective Affiliates’ respective
partners, directors, officers, employees, agents, trustees and advisers, nor any correspondent,
participant or assignee of the Issuing Bank, shall be liable to any Lender for (i) any action taken
or omitted in connection herewith at the request or with the approval of the Lenders or the
Majority Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or Issuer Document.
The Company 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 Company’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
Issuing Bank, the Agent, any of their respective Affiliates, any of their or their respective
Affiliates’ respective partners, directors, officers, employees, agents, trustees and advisers, nor
any correspondent, participant or assignee of the Issuing Bank, shall be liable or responsible for
any of the matters described in clauses (i) through (v) of Section 3.07; provided,
however, that anything in such clauses to the contrary notwithstanding, the Company may
have a claim against the Issuing Bank, and the Issuing Bank may be liable to the Company, to the
extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by the Issuing Bank’s willful
misconduct or gross negligence or the Issuing Bank’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 Issuing Bank 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 Issuing Bank 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.



     3.06 Obligations Absolute. The obligation of the Company to reimburse the Issuing
Bank 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
Company or any Subsidiary may have at any time against any beneficiary or any



46









 






transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), the Issuing Bank 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 Issuing Bank 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 Issuing Bank 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
Insolvency Proceeding; 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 Company or any Subsidiary.



The Company 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 Company’s instructions
or other irregularity, the Company will immediately notify the Issuing Bank. The Company shall be
conclusively deemed to have waived any such claim against the Issuing Bank and its correspondents
unless such notice is given as aforesaid.




     3.07 Letter of Credit Fees.


          (a) The Company shall pay to the Agent for the account of each of the Lenders a letter of
credit fee with respect to the Letters of Credit equal to the Applicable Margin per annum of the
average daily maximum amount available to be drawn of the outstanding Letters of Credit, computed
on a quarterly basis in arrears on the last Business Day of each March, June, September and
December based upon Letters of Credit outstanding for that quarter as calculated by the Agent.
Such letter of credit fees shall be due and payable quarterly in arrears on the last Business Day
of each calendar quarter during which Letters of Credit are outstanding, commencing on the first
such quarterly date to occur after the Closing Date, through the Letter of Credit Expiration Date
(or such later date upon which the outstanding Letters of Credit shall expire), with the final
payment to be made on the Letter of Credit Expiration Date (or such later expiration date) and
thereafter shall be payable on demand.


          (b) The Company shall pay to the Issuing Bank a letter of credit fronting fee for each Letter
of Credit Issued by the Issuing Bank equal to 0.125% per annum of the face amount (or increased
face amount, as the case may be) of such Letter of Credit. Such Letter of Credit fronting fee
shall be due and payable quarterly in arrears on the last Business Day of each 


47









 







calendar quarter
during which such Letter of Credit is outstanding, commencing on the first such quarterly date to
occur after such Letter of Credit is Issued, through the Letter of Credit Expiration Date (or such
later date upon which such Letter of Credit shall expire), with the final payment to be made on the
Letter of Credit Expiration Date (or such later expiration date) and thereafter shall be payable on
demand.



          (c) The Company shall pay to the Issuing Bank from time to time on demand the normal issuance,
presentation, amendment and other processing fees, and other standard costs and charges, of the
Issuing Bank relating to letters of credit as from time to time in effect.



     3.08 Uniform Customs and Practice. Unless otherwise expressly agreed by the Issuing
Bank and the Company when a Letter of Credit is Issued (including any such agreement applicable to
an Existing Letter of Credit), (i) the rules of the “International Standby Practices 1998”
published by the Institute of International Banking Law & Practice (or such later version thereof
as may be in effect at the time of Issuance) shall apply to each standby Letter of Credit and (ii)
the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published
by the International Chamber of Commerce at the time of Issuance shall apply to each commercial
Letter of Credit.



     3.09 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 Company shall be obligated to reimburse the Issuing Bank hereunder for any
and all drawings under such Letter of Credit. The Company hereby acknowledges that the Issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that
the Company’s business derives substantial benefits from the businesses of such Subsidiaries.



     3.10 Outstanding Letters of Credit. The Existing Letters of Credit set forth on
Schedule 1.01 were issued prior to the Closing Date pursuant to the Existing Credit
Agreement and will remain outstanding as of the Closing Date. The Company, the Issuing Bank and
each of the Lenders hereby agree with respect to the Existing Letters of Credit that each such
Existing Letter of Credit, for all purposes under this Agreement, shall be deemed to be Letters of
Credit governed by the terms and conditions of this Agreement. Each Lender further agrees to
participate in each such Existing Letter of Credit in an amount equal to its Pro Rata Share of the
stated amount of such Existing Letter of Credit.



ARTICLE IV




TAXES, YIELD PROTECTION AND ILLEGALITY



     4.01 Taxes.


          (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Company hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
the Company shall be required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions 


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applicable to additional sums payable
under this Section) the Agent, Lender or Issuing Bank, as the case may be, receives an amount equal
to the sum it would have received had no such deductions been made, (ii) the Company shall make
such deductions and (iii) the Company shall timely pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.



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


          (c) Indemnification by the Company. The Company shall indemnify the Agent, each
Lender and the Issuing Bank, within ten (10) days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section) paid by the Agent, such Lender or the
Issuing Bank, as the case may be, and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as
to the amount of such payment or liability delivered to the Company by a Lender or the Issuing Bank
(with a copy to the Agent), or by the Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.


          (d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Company to a Governmental Authority, the Company shall deliver to the
Agent the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Agent.


          (e) Status of Lenders; Tax Documentation. (i) Each Lender shall deliver to the
Company and to the Agent, at the time or times prescribed by applicable law or reasonably requested
by the Company or the Agent, such properly completed and executed documentation prescribed by
applicable law or by the taxing authorities of any jurisdiction and such other reasonably requested
information as will permit the Company or the 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 Company pursuant to this Agreement or otherwise to establish such Lender’s
status for withholding tax purposes in the applicable jurisdiction.



     (ii) Without limiting the generality of the foregoing, if the Company 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 Company and the Agent executed originals of IRS
Form W-9 or such other documentation or information prescribed by applicable Laws or
reasonably requested by the Company or the Agent as will enable the Company



49









 







or the 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 Company and the 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 Company or the 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 Company 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, and




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



     (iii) Each Lender shall promptly (A) notify the Company and the 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 Company or the Agent make any
withholding or deduction for taxes from amounts payable to such Lender.


          (f) Treatment of Certain Refunds. If the Agent, any Lender or the Issuing Bank
determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other
Taxes as to which it has been indemnified by the Company or with respect to which the Company has
paid additional amounts pursuant to this Section, it shall pay to the Company an
amount equal to such refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Company under this Section with respect to the Indemnified Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of the Agent, such Lender or
the Issuing Bank, as the case may be, and without interest (other than any interest paid by the


50









 







relevant Governmental Authority with respect to such refund), provided that the Company,
upon the request of the Agent, such Lender or the Issuing Bank, agrees to repay the amount paid
over to the Company (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Agent, such Lender or the Issuing Bank in the event the Agent, such
Lender or the Issuing Bank is required to repay such refund to such Governmental Authority. This
subsection shall not be construed to require the Agent, any Lender or the Issuing Bank to make
available its tax returns (or any other information relating to its taxes that it deems
confidential) to the Company or any other Person.




     4.02 Illegality.


          (a) If any Lender determines that the introduction of any Requirement of Law or any change in
any Requirement of Law, or in the interpretation or administration of any Requirement of Law, has
made it unlawful, or that any central bank or other Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate
Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender
to the Company through the Agent, any obligation of such Lender to make or continue Eurodollar Rate
Loans or to convert Base Rate Loans to Eurodollar Rate Loans or, if such notice relates to the
unlawfulness or asserted unlawfulness of charging interest based on the Eurodollar Rate, to make
Base Rate Loans as to which the interest rate is determined with reference to the Eurodollar Rate
shall be suspended until such Lender notifies the Agent and the Company that the circumstances
giving rise to such determination no longer exist.


          (b) Upon receipt of a notice from any Lender in accordance with the foregoing clause (a), the
Company shall, upon demand from such Lender (with a copy to the Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender and Base Rate Loans as to which the interest rate
is determined with reference to the Eurodollar Rate to Base Rate Loans as to which the rate of
interest is not determined with reference to the Eurodollar 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 or Base Rate Loan. Notwithstanding the foregoing and despite the illegality
for such a Lender to make, maintain or fund Eurodollar Rate Loans or Base Rate Loans as to which
the interest rate is determined with reference to the Eurodollar Rate, that Lender shall remain
committed to make Base Rate Loans and shall be entitled to recover interest with reference to the
Base Rate. Upon any such prepayment or conversion, the Company shall also pay accrued interest on
the amount so prepaid or converted and amounts required under Section 4.04.


          (c) If the obligation of any Lender to make or maintain Eurodollar Rate Loans has been so
terminated or suspended, the Company may elect, by giving notice to the Lender
through the Agent that all Loans which would otherwise be made by the Lender as Eurodollar
Rate Loans shall be instead Base Rate Loans.


51









 






          (d) Before giving any notice to the Agent under this Section, the affected Lender shall
designate a different Lending Office with respect to its Eurodollar Rate Loans if such designation
will avoid the need for giving such notice or making such demand and will not, in the judgment of
the Lender, be illegal or otherwise disadvantageous to the Lender.



     4.03 Increased Costs and Reduction of Return.


          (a) If any Lender determines that, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation after the date of this Agreement or (ii) the
compliance by that Lender with any guideline or request after the date of this Agreement from any
central bank or other Governmental Authority (whether or not having the force of law), there shall
be any increase in the cost to such Lender of agreeing to make or making, funding or maintaining
any Eurodollar Rate Loans (except for any such reserve requirement reflected in the Eurodollar
Reserve Percentage), or participating in Letters of Credit, or, in the case of the Issuing Bank,
any increase in the cost to the Issuing Bank of agreeing to Issue, Issuing or maintaining any
Letter of Credit or of agreeing to make or making, funding or maintaining any unpaid drawing under
any Letter of Credit, then the Company shall be liable for, and shall from time to time, upon
demand (with a copy of such demand to be sent to the Agent), pay to the Agent for the account of
such Lender, additional amounts as are sufficient to compensate such Lender for such increased
costs.


          (b) If any Lender shall have determined that (i) the introduction of any Capital Adequacy
Regulation after the date of this Agreement, (ii) any change in any Capital Adequacy Regulation
after the date of this Agreement, (iii) any change after the date of this Agreement in the
interpretation or administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Lender (or its Lending Office) or any corporation controlling the Lender with any
Capital Adequacy Regulation, affects or would affect the amount of capital required or expected to
be maintained by the Lender or any corporation controlling the Lender and (taking into
consideration such Lender’s or such corporation’s policies with respect to capital adequacy and
such Lender’s desired return on capital) determines that the amount of such capital is increased as
a consequence of its Commitment, loans, credits or obligations under this Agreement, then, upon
demand of such Lender to the Company through the Agent, the Company shall pay to the Lender, from
time to time as specified by the Lender, additional amounts sufficient to compensate the Lender for
such increase.



     4.04 Funding Losses. The Company shall reimburse each Lender and hold each Lender
harmless from any loss or expense which the Lender may sustain or incur as a consequence of:


          (i) the failure of the Company to make on a timely basis any payment of principal of any
Eurodollar Rate Loan;


          (ii) the failure of the Company to borrow a Loan, continue a Eurodollar Rate Loan or convert
a Loan into a Eurodollar Rate Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;


52









 






          (iii) the failure of the Company to make any prepayment in accordance with any notice
delivered under Section 2.06;


          (iv) the prepayment (including pursuant to Section 2.07) or other payment (including
after acceleration thereof) of an Eurodollar Rate Loan on a day that is not the last day of the
relevant Interest Period;


          (v) the automatic conversion under Section 2.04 of any Eurodollar Rate Loan to a Base
Rate Loan on a day that is not the last day of the relevant Interest Period;


          (vi) the provisions of Section 2.04(g); or


          (vii) the assignment of any Eurodollar Rate Loan on a day that is not the last day of the
relevant Interest Period as a result of a request by the Company pursuant to Section 4.08,



including any such loss or expense arising from the liquidation or reemployment of funds obtained
by it to maintain its Eurodollar Rate Loans or from fees payable to terminate the deposits from
which such funds were obtained. For purposes of calculating amounts payable by the Company to the
Lenders under this Section and under Section 4.03(a), each Eurodollar Rate Loan made by a
Lender (and each related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the Eurodollar Rate for such Eurodollar Rate Loan by a matching
deposit or other borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan is in fact so funded.




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



     4.06 Certificates of Lenders. Any Lender claiming reimbursement or compensation under
this Article IV shall deliver to the Company (with a copy to the Agent) a certificate
setting forth in reasonable detail the amount payable to the Lender hereunder and such certificate
shall
be conclusive and binding on the Company in the absence of manifest error. Notwithstanding
anything to the contrary contained in this Agreement, no amounts shall be payable by the Company
pursuant to Sections 4.03 or 4.04 with respect to any period commencing more than



53









 







one hundred eighty (180) days before the delivery of the certificate contemplated by this
Section 4.06 unless such amounts are claimed as a result of the retroactive effect of any
newly enacted or adopted law, rule or regulation and such certificate is delivered within 180 days
after such enactment or adoption.



     4.07 Survival. The agreements and obligations of the Company in this Article
IV shall survive the payment of all other Obligations.



     4.08 Replacement of Lenders. Upon any Lender’s making a claim for compensation under
Section 4.01 or 4.03, if the Company is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section
4.01 or if any Lender is a Defaulting Lender, the Company may replace such Lender in accordance
with this Section. The Company may, at its sole expense and effort, upon notice to such Lender and
the Agent, replace such Lender by causing such Lender to assign its Revolving Loan Commitment (with
the assignment fee to be paid by the Company in such instance) pursuant to Section 11.08(a)
to one or more other Lenders or Eligible Assignees procured by the Company; provided,
however, that if the Company elects to exercise such right with respect to any Lender
making a claim for compensation or payments under Section 4.01 or 4.03, the
replacement of such Lender will result in a reduction in such compensation or payments thereafter.
The Lender shall have received payment in full all principal, interest, fees and other amounts
owing to such Lender through the date of replacement (including any amounts payable pursuant to
Sections 4.01, 4.03 and 4.04), and the Company shall release such Lender
from its obligations under the Loan Documents. Any Lender being replaced shall execute and deliver
an Assignment and Assumption with respect to such Lender’s Revolving Loan Commitment and
outstanding Loans and participations in L/C Obligations and Swing Line Loans.



ARTICLE V




CONDITIONS PRECEDENT



     5.01 Conditions of Effectiveness and Initial Credit Extensions. The effectiveness of
this Agreement and the obligation of each Lender to make its initial Credit Extension hereunder is
subject to the condition that the Agent shall have received on or before the Closing Date all of
the following, in form and substance satisfactory to the Agent and each Lender (the satisfaction of
each Lender being conclusively evidenced by such Lender’s execution and delivery of its counterpart
of this Agreement), and in sufficient copies for each Lender:


          (a) Credit Agreement and Notes. This Agreement and the Notes (if any) executed by
each party thereto;


          (b) Resolutions; Incumbency.




          (i) Copies of the resolutions of the board of directors of the Company and each
Subsidiary that may become party to a Loan Document authorizing the transactions
contemplated hereby, certified as of the Closing Date by the Secretary or an Assistant
Secretary of such Person; and



54









 






          (ii) A certificate of the Secretary or Assistant Secretary of the Company, and each
Subsidiary that may become party to a Loan Document certifying the names and true signatures
of the officers of the Company or such Subsidiary authorized to execute, deliver and
perform, as applicable, this Agreement, and all other Loan Documents to be delivered by it
hereunder;


          (c) Organization Documents; Good Standing. Each of the following documents:




          (i) the Organization Documents of the Company and each Guarantor as in effect on the
Closing Date, certified by the Secretary or Assistant Secretary or Manager of such Person as
of the Closing Date; and




          (ii) a good standing certificate for the Company and each Guarantor from the Secretary
of State (or similar, applicable Governmental Authority) of its state of organization as of
a recent date;


          (d) Legal Opinions. An opinion addressed to the Agent and the Lenders of Akin Gump
Strauss Hauer & Feld LLP, counsel to the Company, substantially in the form of Exhibit D-1.
An opinion addressed to the Agent and the Lenders of Michael W. Gleespen, general counsel to the
Company and its Subsidiaries substantially in the form of Exhibit D-2. Such legal opinions
as may be required by the Agent from local counsel to certain Subsidiaries with respect to certain
corporate and other matters.


          (e) Payment of Fees. Evidence of payment by the Company of all accrued and unpaid
fees, costs and expenses to the extent then due and payable on the Closing Date, together with
Attorney Costs of Bank of America to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute Bank of America’s reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings (provided that such
estimate shall not thereafter preclude final settling of accounts between the Company and Bank of
America); including any such costs, fees and expenses arising under or referenced in Sections
2.10 and 11.04;


          (f) Certificate. A certificate signed by a Responsible Officer of the Company, dated
as of the Closing Date:




          (i) stating that the representations and warranties contained in Article VI
are true and correct on and as of such date, as though made on and as of such date;




          (ii) stating that no Default or Event of Default exists or would result from the
Credit Extension; and




          (iii) stating that there has occurred since December 31, 2009, no event or
circumstance that has resulted or could reasonably be expected to result in a Material
Adverse Effect.


          (g) Guaranty. The Guaranty, executed by each Guarantor.



55









 







          (h) Solvency Certificate. A written solvency certificate from the chief financial
officer of the Company in form and content satisfactory to the Lenders, dated the initial Borrowing
Date, with respect to the value, Solvency and other factual information of, or relating to, as the
case may be, Company, after giving effect to the initial Credit Extension.


          (i) Payoff Letter. A payoff letter with respect to the Existing Credit Agreement,
executed by the parties thereto.


          (j) Other Documents. Such other approvals, opinions, documents or materials as the
Agent or any Lender may reasonably request.


          (k) Financial Statements. The financial statements and other information referenced in
Section 6.11.



     Without limiting the generality of the provisions of Section 10.04, for purposes of
determining compliance with the conditions specified in this Section 5.01, 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 Agent shall have received notice from such
Lender prior to the proposed Closing Date specifying its objection thereto.



     5.02 Conditions to All Credit Extensions. The obligation of each Lender to make any
Loan (but not its obligations to fund its participation interests pursuant to Section
2.03(b)(ii) or Section 3.03(c)) to be made by it (including its initial Loan hereunder)
or to continue as, or convert any Loan into, an Eurodollar Rate Loan under Section 2.04 and
the obligation of the Issuing Bank to Issue any Letter of Credit (including the initial Letter of
Credit) is subject to the satisfaction of the following conditions precedent on the relevant
Borrowing Date or Issuance Date:


          (a) Notice, Application. The Agent shall have received (with a copy for each Lender)
(i) a Notice of Borrowing (or equivalent notice pursuant to Section 2.03(b) with respect to
Swing Line Loans), (ii) in the case of a conversion or continuation under Section 2.04, a
Notice of Conversion/Continuation, or (iii) in the case of any Issuance or amendment of any Letter
of Credit, the Issuing Bank and the Agent shall have received a L/C Application or L/C Amendment
Application, as required under Section 3.02;


          (b) Continuation of Representations and Warranties. The representations and
warranties in Article VI shall be true and correct in all material respects (or, in the
case of representations and warranties that are qualified by materiality provisions, true and
correct in all respects) on and as of such Borrowing Date or Issuance Date with the same effect as
if made on and as of such Borrowing Date or Issuance Date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case they shall be true
and correct in all material respects (or, in the case of representations and warranties that are
qualified by materiality provisions, true and correct in all respects) as of such earlier date);
and


          (c) No Existing Default. No Default or Event of Default shall exist or shall result
from such Borrowing or continuation or conversion or Issuance.


56









 







Each Notice of Borrowing, L/C Application or L/C Amendment Application submitted by the Company
hereunder shall constitute a representation and warranty by the Company hereunder, as of the date
of each such notice and as of each Borrowing Date or Issuance Date, as applicable, that the
conditions in this Section 5.02 are satisfied.




ARTICLE VI




REPRESENTATIONS AND WARRANTIES



     The Company represents and warrants to the Agent and each Lender that:



     6.01 Corporate Existence and Power. The Company and each of its Subsidiaries:


          (a) is a corporation (or a limited liability company) duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization;


          (b) has the power and authority and all material governmental licenses, authorizations,
consents and material approvals to own its assets, carry on its business and to execute, deliver,
and perform its obligations under the Loan Documents;


          (c) is duly qualified as a foreign corporation and is licensed and in good standing under the
laws of each jurisdiction where its ownership, lease or operation of property or the conduct of its
business requires such qualification or license, except in each case to the extent that the failure
to do so could not reasonably be expected to have a Material Adverse Effect.


          (d) is in compliance with all Requirements of Law, except to the extent that the failure to do
so could not reasonably be expected to have a Material Adverse Effect.



     6.02 Corporate Authorization; No Contravention. The execution, delivery and
performance by the Company and the Guarantors of this Agreement and each other Loan Document to
which such Person is party, have been duly authorized by all necessary corporate action, and do not
and will not:


          (a) contravene the terms of any of such Person’s Organization Documents;


          (b) conflict with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any material Contractual Obligation to which such Person is a party
or any order, injunction, writ or decree of any Governmental Authority to which such Person or its
property is subject; or


          (c) violate any material Requirement of Law.



     6.03 Governmental Authorization. No approval, consent, exemption, authorization, or
other action by, or notice to, or filing with, any Governmental Authority is necessary or required
in connection with the execution, delivery or performance by, or enforcement against, the
Company or any of its Subsidiaries of the Agreement or any other Loan Document, except (i) such as
have been obtained or made and are in full force, (ii) those third party approvals or



57









 







consents
which, if not made or obtained, would not cause a Default or an Event of Default hereunder or could
not reasonably be expected to have an Material Adverse Effect and (iii) solely with respect to the
performance by the Company or any of the Guarantors of this Agreement or any other Loan Document,
(1) filings under the Exchange Act and (2) routine filings to be made after the date hereof to
maintain “good standing” in such jurisdictions and to maintain licenses and permits.



     6.04 Binding Effect. This Agreement and each other Loan Document to which the Company
or any of its Subsidiaries is a party constitute the legal, valid and binding obligations of the
Company and any of its Subsidiaries to the extent it is a party thereto, enforceable against such
Person in accordance with their respective terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability, regardless of whether considered
in a proceeding in equity or at law.



     6.05 Litigation. There are no actions, suits, investigations, proceedings, claims or
disputes pending, or to the best knowledge of the Company, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against the Company, or its
Subsidiaries or any of their respective properties (a) which purport to affect or pertain to this
Agreement or any other Loan Document, or any of the transactions contemplated hereby or thereby;
(b) which are existing on the Closing Date, other than as disclosed on Schedule 6.05(b),
provided, however, that none of the matters set forth on such Schedule 6.05(b), whether
taken individually or in the aggregate, would reasonably be expected to result in a Material
Adverse Effect or (c) which arise after the Closing Date, other than those which would not
reasonably be expected to have a Material Adverse Effect. No injunction, writ, temporary
restraining order or any order of any nature has been issued by any court or other Governmental
Authority purporting to enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for herein or therein not
be consummated as herein or therein provided.



     6.06 No Default. No Default or Event of Default exists or would result from the
incurring of any Obligations by the Company. As of the Closing Date, neither the Company nor any
Subsidiary is in default under or with respect to any Contractual Obligation in any respect which,
individually or together with all such defaults, could reasonably be expected to have a Material
Adverse Effect, or that would, if such default had occurred after the Closing Date, create an Event
of Default under Section 9.01(e).



     6.07 ERISA Compliance.


          (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state laws. Each Pension Plan that is intended to be a
qualified plan under Section 401(a) of the Code has received a favorable determination letter from
the IRS or is entitled to rely on a favorable opinion letter issued by the IRS to a prototype or
volume submitter sponsor to the effect that the form of such Plan is
qualified under Section 401(a) of the Code and the trust related thereto has been determined
by the IRS to be exempt from federal income tax under Section 501(a) of the Code, or an application
for such a letter is currently being processed by the IRS. To the best knowledge of 


58









 







the Company,
nothing has occurred that would prevent, or cause the loss of, such tax-qualified status.



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


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


          (d) Neither the Company or any ERISA Affiliate maintains or contributes to, or has any
unsatisfied obligation to contribute to, or liability under, any active or terminated Pension Plan
other than (A) on the Closing Date, those listed on Schedule 6.07(d) hereto and (B) thereafter,
Pension Plans not otherwise prohibited by this Agreement.



     6.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to be used
solely for the purposes set forth in and permitted by Section 7.12 and Section
8.07. Neither the Company nor any Subsidiary is engaged or will engage, principally or as one
of its important activities, in the business of purchasing or carrying Margin Stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or
carrying Margin Stock. Following the application of the proceeds of each Borrowing or drawing
under each Letter of Credit, not more than 25% of the value of the assets (either of the Company or
the applicable Subsidiary only or of the Company and its Subsidiaries on a consolidated basis)
subject to the provisions of Section 8.01 or Section 8.02 or subject to any
restriction contained in any agreement or instrument between the Company or any Subsidiary and any
Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section
9.01(e) will be Margin Stock



     6.09 Title to Properties. The Company and each Subsidiary have good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or



59









 







used in the ordinary conduct of their respective businesses, except for such defects in title as
could not, individually or in the aggregate, have a Material Adverse Effect. The property of the
Company and its Subsidiaries is subject to no Liens other than Permitted Liens.



     6.10 Taxes. The Company and its Subsidiaries have filed all Federal and other
material tax returns and reports required to be filed, and have paid all Federal and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP. To the Company’s knowledge as of the Closing Date, there is no proposed tax
assessment against the Company or any Subsidiary.



     6.11 Financial Condition. (a) The (x) audited annual consolidated financial
statements of the Company and its Subsidiaries dated December 31, 2009 and (y) the unaudited
quarterly consolidated financial statements (including, without limitation, balances sheets, income
and cash flow statements) of the Company and its Subsidiaries dated March 31, 2010:




          (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein (subject to ordinary, good
faith year end audit adjustments);




          (ii) fairly present the financial condition of the Company and its Subsidiaries as of
the date thereof and results of operations for the period covered thereby; and




          (iii) except as specifically disclosed in Schedule 6.11, show all material
indebtedness and other liabilities, direct or contingent, of the Company and its
consolidated Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments.


          (b) Since December 31, 2009, there has been no Material Adverse Effect.



     6.12 Environmental Matters.


          (a) The on-going operations of the Company and each of its Subsidiaries comply in all material
respects with all Environmental Laws, except such non-compliance which would not (if enforced in
accordance with applicable law) result in liability in excess of $500,000 in the aggregate.


          (b) The Company and each of its Subsidiaries have obtained all material licenses, permits,
authorizations and registrations required under any Environmental Law (“Environmental
Permits”) and necessary for their respective ordinary course operations, all such Environmental
Permits are in good standing, and the Company and each of its Subsidiaries are in compliance with
all material terms and conditions of such Environmental Permits.


          (c) None of the Company, any of its Subsidiaries or any of their respective present Property
or operations, is subject to any outstanding written order from or agreement


60









 







with any Governmental
Authority, nor subject to any judicial or docketed administrative proceeding, respecting any
Environmental Law, Environmental Claim or Hazardous Material.



          (d) There are no Hazardous Materials or other conditions or circumstances existing with
respect to any Property, or arising from operations prior to the Closing Date, of the Company or
any of its Subsidiaries that would reasonably be expected to give rise to Environmental Claims with
a potential liability of the Company and its Subsidiaries in excess of $500,000 in the aggregate
for any such condition, circumstance or Property. In addition, (i) neither the Company nor any of
its Subsidiaries has any underground storage tanks (x) that are not properly registered or
permitted under applicable Environmental Laws, or (y) that are leaking or disposing of Hazardous
Materials off-site, and (ii) the Company and its Subsidiaries have met all material notification
requirements under Title III of CERCLA and all other Environmental Laws.



     6.13 OFAC. None of the Company nor any of its Subsidiaries is a Person named on the
list of Specially Designated Nationals or Blocked Persons maintained by OFAC at
http://www.treas.gov/offices/enforcement/ofac/sdn, or as otherwise published from time to time.



     6.14 Regulated Entities. None of the Company nor any Subsidiary that is not an
Excluded Subsidiary, is an “Investment Company” within the meaning of the Investment Company Act of
1940. None of the Company nor any Subsidiary that is not an Excluded Subsidiary is subject to
regulation under the Federal Power Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal or state statute or regulation limiting its ability to incur
Indebtedness.



     6.15 No Burdensome Restrictions. Neither the Company nor any Subsidiary is a party to
or bound by any Contractual Obligation, or subject to any restriction in any Organization Document,
or any Requirement of Law, which could reasonably be expected to have a Material Adverse Effect.



     6.16 Solvency. The Company and its Subsidiaries, taken as a whole, are Solvent.



     6.17 Labor Relations. There are no strikes, lockouts or other labor disputes against
the Company or any of its Subsidiaries, or, to the best of the Company’s knowledge, threatened
against or affecting the Company or any of its Subsidiaries, and no significant unfair labor
practice complaint is pending against the Company or any of its Subsidiaries or, to the best
knowledge of the Company, threatened against any of them before any Governmental Authority which in
any such case could reasonably be expected to have a Material Adverse Effect.



     6.18 Copyrights, Patents, Trademarks, Etc. The Company or its Subsidiaries own or are
licensed or otherwise have the right to use all of the material patents, trademarks, service marks,
trade names, copyrights, contractual franchises, authorizations and other material rights that are
reasonably necessary for the operation of their respective businesses, without conflict with the
rights of any other Person. To the best knowledge of the Company, no slogan or other advertising
device, product, process, method, substance, part or other material now employed, or
now contemplated to be employed, by the Company or any Subsidiary infringes upon any rights
held by any other Person, and no claim or litigation regarding any of the foregoing is pending or




61












 




threatened, which, in any case, could reasonably be expected to have a Material Adverse
Effect.




     6.19 Subsidiaries. As of the Closing Date and as of each date of delivery of an
updated Schedule in accordance with Section 7.02(b), (x) the Company has no Subsidiaries
other than those specifically disclosed in Part (A) of Schedule 6.19 hereto, (y) the
Company has no equity investments in any other corporation or entity other than those specifically
disclosed in Part (B) of Schedule 6.19, and (z) the Company has no Excluded Subsidiaries
other than those identified on Schedule 6.19 and the Company’s Investment in such Excluded
Subsidiaries is permitted pursuant to Section 8.04(q). No Excluded Subsidiary owns any
capital stock of any Subsidiary which is not also an Excluded Subsidiary.



     6.20 Broker’s; Transaction Fees. Neither the Company nor any of its Subsidiaries has
any obligation to any Person in respect of any finder’s, broker’s or investment banker’s fee in
connection with this Agreement or any other Loan Document.



     6.21 Insurance. The properties of the Company and its Subsidiaries are insured with
financially sound and reputable insurance companies not Affiliates of the Company, in such amounts,
with such deductibles and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the Company or such Subsidiary
operates, except to the extent the Company maintains reasonable self-insurance with respect to such
risks (through an Affiliate or otherwise).



     6.22 Swap Obligations. Neither the Company nor any of its Subsidiaries has incurred any
outstanding obligations under any Swap Contracts, other than Permitted Swap Obligations. The
Company has undertaken its own independent assessment of its consolidated assets, liabilities and
commitments and has considered appropriate means of mitigating and managing risks associated with
such matters and has not relied on any swap counterparty or any Affiliate of any swap counterparty
in determining whether to enter into any Swap Contract.



     6.23 Full Disclosure. None of the representations or warranties made by the Company or
any Subsidiary in the Loan Documents as of the date such representations and warranties are made or
deemed made, and none of the statements contained in any exhibit, report, written statement or
certificate furnished by or on behalf of the Company or any Subsidiary in connection with the Loan
Documents (including the offering and disclosure materials delivered by or on behalf of the Company
to the Lenders prior to the Closing Date), contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the statements made
therein, in light of the circumstances under which they are made, not misleading as of the time
when made or delivered (other than omissions that pertain to matters of a general economic nature
or matters of public knowledge that generally effect any of the industry segments of the Company or
its Subsidiaries); provided that, with respect to projected financial information, the Company
represents only that such information was prepared in good faith based upon assumptions believed to
be reasonable at the time. Any forward looking statements contained therein are inherently subject
to risk and uncertainties, many of which cannot be predicted with accuracy, and some of which might
not be anticipated. Future events and actual results, financial and otherwise, could differ
materially from those set forth therein or contemplated by the forward looking statements contained
therein.



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ARTICLE VII




AFFIRMATIVE COVENANTS



     So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, unless the
Majority Lenders waive compliance in writing:



     7.01 Financial Statements. The Company shall deliver to the Agent, in form and detail
satisfactory to the Agent and the Majority Lenders, with sufficient copies for the Agent and each
Lender:



          (a) as soon as available, but not later than ninety (90) days after the end of each fiscal
year, to the extent prepared to comply with SEC requirements, a copy of SEC Form 10-K’s filed by
the Company with the SEC for such fiscal year, or if no such Form 10-K was filed by the Company for
such fiscal year, a copy of the audited consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year and the related consolidated statements of income or
operations and shareholders’ equity and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, and in any case accompanied by the
opinion of KPMG LLP or another nationally-recognized independent public accounting firm
(“Independent Auditor”) which report shall state that such consolidated financial
statements present fairly the financial position for the periods indicated in conformity with GAAP
or the standard of the Public Company Accounting and Oversight Rule 3100, as applicable, applied on
a basis consistent with prior years. Such opinion shall not be qualified or limited because of a
restricted or limited examination by the Independent Auditor of any material portion of the
Company’s or any Subsidiary’s records. Concurrently with the delivery of the foregoing financial
statements, a copy of the unaudited combined consolidated statements of income or operations of the
Excluded Subsidiaries for such year, setting forth in each case in comparative form the figures for
the previous fiscal year, which unaudited combined consolidated statements of income or operations
shall have been prepared in accordance with GAAP;




          (b) as soon as available, but not later than forty-five (45) days after the end of each of the
first three fiscal quarters of each fiscal year, to the extent prepared to comply with SEC
requirements, a copy of the SEC Form 10-Qs filed by the Company with the SEC for such fiscal
quarter, or if no such Form 10-Q was filed by the Company for such fiscal quarter, a copy of the
unaudited consolidated balance sheet of the Company and its Subsidiaries as of the end of such
quarter and the related consolidated statements of income and shareholders’ equity and cash flows
for the period commencing on the first day and ending on the last day of such quarter, and in any
case certified by the chief executive officer and chief financial officer as fairly presenting, in
accordance with GAAP (subject to ordinary, good faith year-end audit adjustments), the financial
position and the results of operations of the Company and the Subsidiaries; and concurrently with
the delivery of the foregoing unaudited financial statements, a copy of the unaudited combined
consolidated statements of income of the Excluded Subsidiaries for the period commencing on the
first day and ending on the last day of such quarter, and in any case certified by a Responsible
Officer as fairly presenting, in accordance with GAAP (subject to






63









 







ordinary, good faith year-end audit adjustments), the financial position and the results of
operations of the Excluded Subsidiaries; and




     7.02 Certificates; Other Information. The Company shall furnish to the Agent, with
sufficient copies for each Lender:



          (a) so long as it is not contrary to the then current recommendation of the American Institute
of Certified Public Accountants, concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of the Independent Auditor stating that in
making the examination necessary therefor no knowledge was obtained of any Default or Event of
Default, except as specified in such certificate;




          (b) concurrently with the delivery of the financial statements referred to in Sections
7.01(a) and (b), (I) a Compliance Certificate executed by a Responsible Officer (which
delivery may, unless the Agent or a Lender requests executed originals, be by electronic
communication including facsimile or email and shall be deemed to be an original authentic
counterpart thereof for all purposes) and (II) an updated Schedule 6.19;




          (c) promptly, copies of all financial statements and reports that the Company sends to its
shareholders, and copies of all financial statements and regular, periodical or special reports
(including Forms 10K, 10Q and 8K) that the Company or any Subsidiary may make to, or file with, the
SEC;




          (d) as soon as available, but in any event not later than February 15 of each calendar year, a
copy of the plan and forecast of the Company and its Subsidiaries for the next fiscal year and on
each February 15 of each calendar year, a copy of projected quarterly EBITDA of the Company and its
Subsidiaries, in each case for its then current fiscal year (“Budgeted EBITDA”);




          (e) concurrently with the delivery of the financial statements referred to in Sections
7.01(a) and (b) a Reconciliation Certificate executed by a Responsible Officer; and




          (f) promptly, such additional information regarding the business, financial or corporate
affairs of the Company or any Subsidiary as the Agent, at the request of any Lender, may from time
to time reasonably request.



The Company hereby acknowledges that (a) the Agent and/or the Arranger will make available to the
Lenders and the Issuing Bank materials and/or information provided by or on behalf of the Company
hereunder (collectively, “Company Materials”) by posting the Company 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 Company or its Affiliates, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market-related activities
with respect to such Persons’ securities. The Company hereby agrees that (w) all Company 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 Company Materials “PUBLIC,” the Company shall be deemed to have authorized
the Agent, the Arranger, the Issuing Bank and the Lenders to treat






64









 







such Company Materials as not containing any material non-public information with respect to the
Company or its securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Company Materials constitute Information, they shall be
treated as set forth in Section 11.09); (y) all Company Materials marked “PUBLIC” are
permitted to be made available through a portion of the Platform designated “Public Side
Information;” and (z) the Agent and the Arranger shall be entitled to treat any Company Materials
that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not
designated “Public Side Information.”




     7.03 Notices. The Company shall promptly notify the Agent and each Lender:



          (a) of the occurrence of any Default or Event of Default;




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




          (c) of the occurrence of any of the following events affecting the Company or any ERISA
Affiliate (but in no event more than ten (10) days after such event), and deliver to the Agent and
each Lender a copy of any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to the Company or any ERISA
Affiliate with respect to such event:




          (i) an ERISA Event;




          (ii) a material increase in the Unfunded Pension Liability of any Pension Plan;




          (iii) the adoption of, or the commencement of contributions to, any Plan subject to Section
412 of the Code by the Company or any ERISA Affiliate; or




          (iv) the adoption of any amendment to a Plan subject to Section 412 of the Code, if such
amendment results in a material increase in contributions or Unfunded Pension Liability.




          (d) of any material change in accounting policies or financial reporting practices by the
Company or any of its consolidated Subsidiaries, including any determination by the Company
referred to in Section 2.11(c);




          (e) upon the request from time to time of the Agent, the Swap Termination Values, together
with a description of the method by which such values were determined, relating to any
then-outstanding Swap Contracts to which the Company or any of its Subsidiaries is party; and




          (f) the issuance of any order, the taking of any action or any request for an extraordinary
audit for cause by any Governmental Authority.







65









 








     Each notice under this Section shall be accompanied by a written statement by a Responsible
Officer setting forth details of the occurrence referred to therein, and stating what action the
Company or any affected Subsidiary proposes to take with respect thereto and at what time. Each
notice under Section 7.03(a) shall describe with particularity any and all clauses or
provisions of this Agreement or other Loan Document that have been (or foreseeably will be)
breached or violated.



     7.04 Preservation of Corporate Existence, Etc. The Company shall, and shall cause each
Subsidiary to:



          (a) preserve and maintain in full force and effect its corporate existence and good standing
under the laws of its state or jurisdiction of incorporation (except as permitted by Section
8.03);




          (b) preserve and maintain in full force and effect all material governmental rights,
privileges, qualifications, permits, licenses and franchises necessary or desirable in the normal
conduct of its business, except in connection with transactions permitted by Section 8.03
and sales of assets permitted by Section 8.02;




          (c) use reasonable efforts, in the ordinary course of business, to preserve its business
organization and goodwill; and




          (d) preserve or renew all of its registered patents, trademarks, trade names and service
marks, the non-preservation of which could reasonably be expected to have a Material Adverse
Effect.




     7.05 Maintenance of Property. The Company shall maintain, and shall cause each
Subsidiary to maintain, and preserve its property, taken as a whole, which is used or useful in its
business in good working order and condition, ordinary wear and tear excepted and make all
necessary repairs thereto and renewals and replacements thereof.



     7.06 Insurance. The Company shall maintain, and shall cause each Subsidiary to maintain,
with financially sound and reputable independent insurers, insurance with respect to its properties
and business against loss or damage of the kinds customarily insured against by Persons engaged in
the same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons, except to the extent the Company maintains reasonable
self-insurance with respect to such risks (through an Affiliate or otherwise).



     7.07 Payment of Obligations. The Company shall, and shall cause each Subsidiary to, pay
and discharge as the same shall become due and payable, all their respective obligations and
liabilities, including:



          (a) all tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by appropriate proceedings
and adequate reserves in accordance with GAAP are being maintained by the Company or such
Subsidiary;







66









 








          (b) all lawful claims which, if unpaid, would by law become a Lien (other than a Permitted
Lien) upon its property; and




          (c) all indebtedness, as and when due and payable, but subject to any subordination provisions
contained in any instrument or agreement evidencing such Indebtedness, unless (x) the payment of
such indebtedness is being contested in good faith by appropriate proceedings and adequate reserves
in accordance with GAAP are being maintained by the Company or such Subsidiary and (y) the
aggregate principal amount of such unpaid indebtedness, together with any unpaid Contingent
Obligations which are due and payable and which have not been cash collateralized, is no greater
than $5,000,000.




     7.08 Compliance with Laws. The Company shall comply, and shall cause each Subsidiary to
comply, in all material respects with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal Fair Labor Standards Act), except such
as may be contested in good faith or as to which a bona fide dispute may exist.



     7.09 Compliance with ERISA. The Company shall, and shall cause each of its ERISA
Affiliates to: (a) maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law; (b) cause each Plan which is
qualified under Section 401(a) of the Code to maintain such qualification unless such Plan is
terminated; and (c) make all required contributions to any Plan subject to Section 412 of the Code.



     7.10 Inspection of Property and Books and Records. The Company shall maintain and shall
cause each Subsidiary to maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP consistently applied shall be made of all financial
transactions and matters involving the assets and business of the Company and such Subsidiary. The
Company shall permit, and shall cause each Subsidiary to permit, representatives and independent
contractors of the Agent or any Lender to visit and inspect any of their respective properties, to
examine their respective corporate, financial and operating records, and make copies thereof or
abstracts therefrom, and to discuss their respective affairs, finances and accounts with their
respective directors, officers, and independent public accountants, all at the expense of the
Company and at such reasonable times during normal business hours and as often as may be reasonably
desired, upon reasonable advance notice to the Company; provided, however, when an
Event of Default exists the Agent or any Lender may do any of the foregoing at the expense of the
Company at any time without advance notice.



     7.11 Environmental Laws. The Company shall, and shall cause each Subsidiary to, conduct
its operations and keep and maintain its property in material compliance with all Environmental
Laws.



     7.12 Use of Proceeds. The Company shall use the proceeds of the Loans to repay certain
obligations under the Existing Credit Agreement, as described in the payoff letter referenced in
Section 5.01(i), and for working capital and other general corporate purposes, including
Permitted Acquisitions, Capital Expenditures and repurchases and redemptions of



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Capital Stock of the Company and the payment of fees and expenses relating thereto, in each
case not in contravention of any Requirement of Law or of any Loan Document.




     7.13 Solvency. The Company and its Subsidiaries, taken as a whole, shall at all times be
Solvent.



     7.14 Further Assurances. The Company shall ensure that all written information, exhibits
and reports furnished to the Agent or the Lenders pursuant to the Loan Documents do not and will
not contain any untrue statement of a material fact and do not and will not omit to state any
material fact or any fact necessary to make the statements contained therein not materially
misleading in light of the circumstances in which made; provided that with respect to projected
financial information, the Company represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time. Any forward looking statements
contained therein are inherently subject to risk and uncertainties, many of which cannot be
predicted with accuracy, and some of which might not be anticipated. Future events and actual
results, financial and otherwise, could differ materially from those set forth therein or
contemplated by the forward looking statements contained therein. The Company will promptly
disclose to the Agent and the Lenders and correct any defect or error that may be discovered
therein or in any Loan Document or in the execution, acknowledgment or recordation thereof.



     7.15 New Subsidiaries. If the Company or any domestic Subsidiary (other than an Excluded
Subsidiary) proposes to create, acquire or capitalize any domestic Subsidiary (other than an
Excluded Subsidiary) in accordance with the terms and provisions hereof (whether pursuant to a
Permitted Acquisition or otherwise), it shall first (or substantially concurrently with such
creation, acquisition or capitalization) (a) (1) cause such Subsidiary (other than Excluded
Subsidiaries) to execute and deliver, to Agent a Guaranty or (2) execute and deliver a joinder
agreement acceptable in form and substance to the Agent with respect to the Guaranty as the Agent
shall require in its sole discretion and (b) cause such Subsidiary (other than Excluded
Subsidiaries) to deliver, or execute and deliver, as applicable, to the Agent appropriate corporate
resolutions, opinions and other documentation reasonably requested by the Agent in form and
substance reasonably satisfactory to the Agent with respect to such Guaranty or joinder;
provided, however, that, if such Subsidiary is a Foreign Subsidiary and its
execution and delivery of the Guaranty or a joinder with respect thereto would result in material
adverse tax consequences to the Company and its Subsidiaries as a consequence of the operation of
Section 956 of the Internal Revenue Code, then, for so long as such consequence would pertain, such
Subsidiary shall not be required to execute and deliver the Guaranty or such joinder, or deliver
the related resolutions, opinions or other documents, under this Section. If the Company or any
Subsidiary, should acquire, create or capitalize any new Subsidiary, the Company shall promptly
notify the Agent thereof and provided an updated Schedule 6.19 listing such new Subsidiary.
If any Excluded Subsidiary shall cease to be an Excluded Subsidiary for any reason and to the
extent any Excluded Subsidiary may do so without violating federal, state or local laws or
regulations applicable to it, the Company shall promptly notify the Agent thereof and such
Subsidiary shall promptly execute and deliver the Guaranty or joinder and deliver such other
opinions, resolutions and other documentation as is provided above with respect to New
Subsidiaries.



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ARTICLE VIII




NEGATIVE COVENANTS



     So long as any Lender shall have any Commitment hereunder, or any Loan or other Obligation
shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, unless the
Majority Lenders waive compliance in writing:



     8.01 Limitation on Liens. The Company shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, make, create, incur, assume or suffer to exist any Lien upon
or with respect to any part of its property, whether now owned or hereafter acquired, other than
the following (“Permitted Liens”):



          (a) any Lien existing on property of the Company or any Subsidiary on the Closing Date;




          (b) any Lien created under any Loan Document including, without limitation, any Lien on assets
of the Company representing Cash Collateral;




          (c) Liens for taxes, fees, assessments or other governmental charges which are not delinquent
or remain payable without penalty, or to the extent that non-payment thereof is permitted by
Section 7.07, provided that no notice of lien has been filed or recorded under the Code;




          (d) carriers’, warehousemen’s, mechanics’, landlords’, materialmen’s, repairmen’s or other
similar Liens arising in the ordinary course of business which are not delinquent or remain payable
without penalty or which are being contested in good faith and by appropriate proceedings, which
proceedings have the effect of preventing the forfeiture or sale of the property subject thereto;




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




          (f) Liens on the property of the Company or its Subsidiaries securing (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money), leases, statutory
obligations, (ii) contingent obligations on surety and appeal bonds, and (iii) other non-delinquent
obligations of a like nature; in each case, incurred in the ordinary course of business;




          (g) Liens consisting of judgment or judicial attachment liens, provided that the enforcement
of such Liens is effectively stayed and all such liens in the aggregate at any time outstanding for
the Company and its Subsidiaries do not exceed $1,000,000;




          (h) easements, rights-of-way, zoning restrictions and other similar encumbrances incurred in
the ordinary course of business which, in the aggregate, are not substantial in amount, and which
do not interfere with the ordinary conduct of the businesses of the Company and its Subsidiaries;







69









 








          (i) purchase money security interests on any property acquired or held by the Company or its
Subsidiaries in the ordinary course of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring, constructing or improving such
property; provided that (i) any such Lien attaches to such property concurrently
with or within one hundred eighty (180) days after the acquisition thereof, (ii) such Lien attaches
solely to the property so acquired, constructed or improved in such transaction and proceeds
thereof and accessions thereto and (iii) the aggregate outstanding principal amount of Indebtedness
secured by all such purchase money security interests (together with Indebtedness secured by Liens
permitted by Sections 8.01(j)) shall not at any time exceed $5,000,000;




          (j) Liens securing Capital Lease Obligations on assets subject to such Capital Leases,
provided that the attributable principal portion of such Capital Lease Obligations secured by all
such Capital Leases (together with Indebtedness with respect to Liens permitted by Sections
8.01(i)) shall not at any time exceed $5,000,000;




          (k) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided that (i) such
deposit account is not a dedicated cash collateral account and is not subject to restrictions
against access by the Company in excess of those set forth by regulations promulgated by the FRB,
and (ii) such deposit account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution;




          (l) Liens on assets of Persons which become Subsidiaries after the date of this Agreement,
provided, however, that (x) such Liens existed at the time the respective Persons
became Subsidiaries and were not created in anticipation thereof, (y) such Liens attach only to
equipment and real property of such Subsidiary and proceeds thereof and (z) the aggregate
outstanding principal amount of Indebtedness secured by all such Liens shall not at any time exceed
an aggregate principal amount equal to $15,000,000; and




          (m) Liens consisting of pledges of cash collateral or government securities to secure on a
mark-to-market basis Permitted Swap Obligations only, provided that the aggregate value of such
collateral so pledged by the Company and the Subsidiaries together in favor of any counterparty
does not at any time exceed $1,000,000.



In addition, neither the Company nor any of its Subsidiaries (other than any Excluded Subsidiary
which is prohibited by Requirement of Law from pledging its assets to secure indebtedness) shall
become a party to any agreement, note, indenture or other instrument, or take any other action,
which would prohibit the creation of a first priority Lien on any of its properties or other assets
in favor of the Agent for the benefit of the Lenders (including, without limitation, any agreement
containing an equal and ratable clause, unless such clause is not applicable with respect to the
granting of a first priority lien on the properties and other assets in favor of the Agent for the
benefit of the Lenders), except with respect to (i) specific equipment secured by Indebtedness or
Capital Leases permitted under Sections 8.01(i), (j) or (l), (ii) software
licenses or similar contracts which constitute property or assets of the Company or any of its
Subsidiaries which by the express terms thereof prohibit the creation of a first priority Lien in
favor of any Person on






70









 







such software licenses or similar contracts or (iii) the Private Placement Debt, to the extent
permitted by the terms hereof.




     8.02 Disposition of Assets. The Company shall not, and shall not suffer or permit any
Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer or otherwise dispose
of (whether in one or a series of transactions) any property (including accounts and notes
receivable, with or without recourse) or enter into any agreement to do any of the foregoing,
except:



          (a) dispositions of inventory, or used, worn-out or surplus equipment (including, without
limitation, demonstration or pilot plants), all in the ordinary course of business;




          (b) the sale of equipment to the extent that such equipment is exchanged for credit against
the purchase price of similar replacement equipment, or the proceeds of such sale are reasonably
promptly applied to the purchase price of such replacement equipment within ninety (90) days of
each such sale;




          (c) each Specified Asset Sale;




          (d) dispositions not otherwise permitted hereunder which are made for fair market value;
provided that (i) at the time of any disposition, no Event of Default shall exist or shall
result from such disposition, (ii) with respect to transactions involving the disposition of assets
with an aggregate book or fair market value in excess of $5,000,000, not less than 50% of the
aggregate sales price from such disposition shall be paid in cash or Cash Equivalents, and (iii)
the aggregate book or fair market value of all assets so sold by the Company and its Subsidiaries,
together, shall not exceed (x) 6% of the Tangible Assets of the Company and its Subsidiaries on a
consolidated basis during any twelve month period with Tangible Assets to be measured as of the
beginning of such period, and (y) 15% of the Tangible Assets of the Company and its Subsidiaries on
a consolidated basis during the term of this Agreement, with Tangible Assets to be measured as of
March 31, 2010;




          (e) transfer of cash or Cash Equivalents not otherwise prohibited by the Loan Documents;




          (f) Investments permitted under Section 8.04 and dispositions pursuant to a merger or
other consolidation permitted under Section 8.03; and




          (g) transfer of inventory, equipment or other assets from the Company to any Subsidiary which
is not an Excluded Subsidiary or to the Company or any other such Subsidiary from any Subsidiary.




     8.03 Consolidations and Mergers. The Company shall not, and shall not suffer or permit
any Subsidiary to, merge, consolidate with or into, or convey, transfer, lease or otherwise 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:



71









 





          (a) any Subsidiary (other than an Excluded Subsidiary) may merge with the Company
(provided that the Company shall be the continuing or surviving corporation), or with any
one or more Subsidiaries (other than an Excluded Subsidiary), provided that if any
transaction shall be between a Subsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned
Subsidiary shall be the continuing or surviving corporation; it being understood and agreed that,
notwithstanding the prohibition contained in this clause, an Excluded Subsidiary shall be permitted
to constitute part of a transaction permitted by this clause in the event that such transaction
would remove or eliminate the condition that caused such Excluded Subsidiary to be an Excluded
Subsidiary;




          (b) any Subsidiary (other than an Excluded Subsidiary) may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to the Company or another Wholly-Owned
Subsidiary (other than an Excluded Subsidiary); it being understood and agreed that,
notwithstanding the prohibition contained in this clause, an Excluded Subsidiary shall be permitted
to constitute part of a transaction permitted by this clause in the event that such transaction
would remove or eliminate the condition that caused such Excluded Subsidiary to be an Excluded
Subsidiary;




          (c) any Subsidiary may merge with or consolidate into any Person (other than an Excluded
Subsidiary), provided that (i) at the time of such merger or consolidation, no Default or
Event of Default shall exist or result after giving effect to the consummation of such merger or
consolidation and (ii) either (x) such Subsidiary shall be the continuing or surviving corporation
as a Wholly-Owned Subsidiary of the Company or (y) such Person shall become a Subsidiary of the
Company as a result thereto; it being understood and agreed that, notwithstanding the prohibition
contained in this clause, an Excluded Subsidiary shall be permitted to constitute part of a
transaction permitted by this clause in the event that such transaction would remove or eliminate
the condition that caused such Excluded Subsidiary to be an Excluded Subsidiary;




          (d) any Excluded Subsidiary may merge with or consolidate into any one or more Excluded
Subsidiaries;




          (e) any Wholly-Owned Subsidiary may liquidate and dissolve into its parent; and




          (f) dispositions permitted by Section 8.02.




     8.04 Loans and Investments. The Company shall not purchase or acquire, or suffer or
permit any Subsidiary to purchase or acquire, or make any commitment therefor, any capital stock,
equity interest, or any obligations or other securities of, or any interest in, any Person, or make
or commit to make any Acquisitions, or make or commit to make any advance, loan, guaranty,
extension of credit or capital contribution to or any other investment in, any Person including any
Affiliate of the Company (collectively, “Investments”), except for:



          (a) Investments held by the Company or any Subsidiary in the form of cash and/or Cash
Equivalents;







72









 








          (b) extensions of credit in the nature of accounts receivable or notes receivable arising from
the sale or lease of goods or services in the ordinary course of business;




          (c) unsecured extensions of credit by the Company to any Subsidiary (other than an Excluded
Subsidiary) or by any such Subsidiary to another such Subsidiary or the Company;




          (d) Investments incurred in order to consummate Permitted Acquisitions (other than such
Investments in Excluded Subsidiaries);




          (e) Investments constituting Permitted Swap Obligations or payments or advances under Swap
Contracts relating to Permitted Swap Obligations;




          (f) Investments made by the Company or any Subsidiary which is not an Excluded Subsidiary
after the date of this Agreement in any Subsidiary (other than an Excluded Subsidiary) in the form
of a capital contribution;




          (g) advances, loans, or other extensions of credit to employees with respect to payroll,
relocation and travel expenses on behalf of the Company and its Subsidiaries (other than Excluded
Subsidiaries) in the ordinary course of business and consistent with past practice and which shall
not exceed $1,100,000 in the aggregate at any time outstanding;




          (h) other Investments in Persons other than Excluded Subsidiaries existing as of the Closing
Date and listed on Schedule 8.04;




          (i) Investments of a Person that becomes a Subsidiary (other than an Excluded Subsidiary)
after the date of this Agreement as a result of an Acquisition so long as such Investment existed
at the time such Person became a Subsidiary and was not created in anticipation thereof;




          (j) equity interests, notes, chattel paper and securities received in settlement of debts
created in the ordinary course of business and owed to the Company or its Subsidiaries or received
in satisfaction of judgments or pursuant to a plan of reorganization or similar arrangement upon
the bankruptcy or insolvency of a debtor;




          (k) other Investments (other than repurchases of capital stock of the Company or any of its
Subsidiaries and Investments in Excluded Subsidiaries); provided, that, the aggregate
amount of consideration paid, loaned, advanced, guaranteed, or commitments incurred, with respect
to all such Investments during any fiscal year of the Company does not exceed the amount of
$10,000,000;




          (l) Investments which constitute redemptions and repurchases permitted under Section
8.10;




          (m) Investments consisting of prepaid expenses, lease, utilities, workers’ compensation
performance and similar deposits made in the ordinary course of business and consistent with past
practice;







73









 








          (n) Investments consisting of non-cash consideration received by the Company or its
Subsidiaries from dispositions permitted under Section 8.02(d);




          (o) Investments in Persons (other than Excluded Subsidiaries) consisting of Contingent
Obligations permitted pursuant to Section 8.08;




          (p) stock, obligations or securities received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with, customers or suppliers,
in each case, in the ordinary course of business or received in satisfaction of a judgment; and




          (q) Investments held by the Company or any Subsidiary (including Investments consisting of
Contingent Obligations) in any Excluded Subsidiary; provided, that the aggregate amount of
consideration paid, loaned, advanced, guaranteed or commitments incurred, with respect to all such
Investments in any Excluded Subsidiary, at any time (together with any Contingent Obligations
incurred by the Company or any Subsidiary in connection with the Acquisition of Excluded
Subsidiaries) does not exceed an amount equal to 3% of the total assets of the Company and its
Subsidiaries on a consolidated basis.




     8.05 Limitation on Indebtedness. The Company shall not, and shall not suffer or permit
any Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or remain directly
or indirectly liable with respect to, any Indebtedness, except:



          (a) Indebtedness incurred pursuant to this Agreement and the other Loan Documents including,
without limitation, any Indebtedness representing Adequate Security;




          (b) Indebtedness consisting of Contingent Obligations permitted pursuant to Section
8.08;




          (c) Indebtedness existing on the Closing Date and set forth in Schedule 8.05;




          (d) Indebtedness incurred in connection with leases permitted pursuant to Section
8.09;




          (e) Indebtedness permitted to be incurred pursuant to Section 8.04(c) and Section
8.04(p);




          (f) Indebtedness secured by Liens permitted by Section 8.01(i), (j) or
(l);




          (g) Indebtedness consisting of Convertible Debt in an aggregate outstanding principal amount
not to exceed $100,000,000; and




          (h) Indebtedness consisting of Private Placement Debt in an aggregate outstanding principal
amount not to exceed $150,000,000.




     8.06 Transactions with Affiliates. The Company shall not, and shall not suffer or permit
any Subsidiary to, enter into any transaction with any Affiliate of the Company (other than the
Company or a Subsidiary which is not an Excluded Subsidiary), except upon fair and



74









 




reasonable terms no less favorable to the Company or such Subsidiary than would obtain in a
comparable arm’s-length transaction with a Person not an Affiliate of the Company or such
Subsidiary.




     8.07 Use of Proceeds. The Company shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds or any Letter of Credit, directly or
indirectly, (i) to purchase or carry Margin Stock in violation of any applicable legal and
regulatory requirements including, without limitation, Regulations T, U and X, the Securities Act
of 1933, and the Securities Exchange Act of 1934 and the regulations promulgated thereunder, (ii)
to repay or otherwise refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, or (iii) to acquire any security in any transaction that is subject to Section 13 or
14 of the Exchange Act.



     8.08 Contingent Obligations. The Company shall not, and shall not suffer or permit any
Subsidiary to, create, incur, assume or suffer to exist any Contingent Obligations except:



          (a) endorsements for collection or deposit in the ordinary course of business;




          (b) Permitted Swap Obligations;




          (c) Contingent Obligations (x) of the Company and its Subsidiaries existing as of the Closing
Date and listed in Schedule 8.08 (other than those made for the benefit of Excluded
Subsidiaries), (y) of the Company with respect to payments to be made by a Subsidiary of the
Company (other than Excluded Subsidiaries) pursuant to operating leases and contracts not
constituting Indebtedness entered into by such Subsidiary in the ordinary course of business and
(z) of the Company’s Subsidiaries pursuant to the Guaranty;




          (d) Contingent Obligations with respect to Surety Instruments incurred in the ordinary course
of business;




          (e) Contingent Obligations of a Person that becomes a Subsidiary (other than an Excluded
Subsidiary) after the date of this Agreement as a result of a Permitted Acquisition so long as such
Contingent Obligation existed at the time such Person became a Subsidiary and was not created in
anticipation thereof;




          (f) guarantees (other than those made for the benefit of Excluded Subsidiaries) with respect
to permitted Indebtedness and Capital Leases permitted under Section 8.05;




          (g) Contingent Obligations incurred by the Company in connection with Acquisitions, provided
that the aggregate maximum possible amount of such Contingent Obligations (other than Contingent
Obligations incurred in connection with the Acquisition of any Excluded Subsidiary) outstanding as
of any date of determination (together with the aggregate maximum possible amount of any
contingent, deferred purchase price consideration obligations with respect to all Acquisitions,
including, without limitation, any “earn-out” obligations, permitted under this clause (g) or the
foregoing clauses (c) or (e), or otherwise, outstanding as of such date) does not exceed an amount
equal to 20% of the total assets of the Company and its Subsidiaries on a consolidated basis; and







75









 








          (h) Contingent Obligations constituting Investments permitted pursuant to Section
8.04(p).




     8.09 Lease Obligations. The Company shall not, and shall not suffer or permit any
Subsidiary to, create or suffer to exist any obligations for the payment of rent for any property
under lease or agreement to lease, except for:



          (a) leases of the Company and of Subsidiaries in existence on the Closing Date and any
renewal, extension or refinancing thereof;




          (b) operating leases entered into by the Company or any Subsidiary after the Closing Date in
the ordinary course of business; and




          (c) Capital Leases permitted under Section 8.01(j) or (l).




     8.10 Restricted Payments. The Company shall not, and shall not suffer or permit any
Subsidiary to, declare or make any dividend payment or other distribution of assets, properties,
cash, rights, obligations or securities on account of any shares of any class of its capital stock,
or purchase, redeem or otherwise acquire for value any shares of its capital stock or any warrants,
rights or options to acquire such shares, now or hereafter outstanding; except that (a) any
Wholly-Owned Subsidiary may declare and make dividend payments or other distributions to the
Company or to its immediate parent Subsidiary of the Company, (b) any Subsidiary that is not a
Wholly-Owned Subsidiary may declare and make pro-rata dividend payments or other pro-rata
distributions, (c) the Company or any of its Subsidiaries may make any repurchase or redemption of
its capital stock, provided, that, in the case of this clause (c), (i) the Company’s
Leverage Ratio as of the date of any such repurchase or redemption (calculated on a pro forma basis
giving effect to such repurchase or redemption) is less than 2.00 to 1.0 or (ii) (x) the Company’s
Leverage Ratio as of the date of any such repurchase or redemption (calculated on a pro forma basis
giving effect to such repurchase or redemption) is greater than or equal to 2.00 to 1.0 but less
than (I) with respect to any repurchase or redemption occurring on or after May 1 of any calendar
year but prior to February 1 of any calendar year, 2.75 to 1.0 or (II) with respect to any
repurchase or redemption occurring on or after February 1 of any calendar year but prior to May 1
of any calendar year, 3.00 to 1.0, and (y) the aggregate consideration paid and other payments made
by the Company and its Subsidiaries during the preceding twelve months in connection with all such
repurchases and redemptions, including such proposed repurchase or redemption, does not exceed
$15,000,000, (d) the Company may pay the settlement amount with respect to each $1,000 aggregate
principal amount of Convertible Debt converted into shares of the Company’s common stock (i) in
cash, which shall not exceed the lesser of $1,000 and the conversion value of such Convertible Debt
pursuant to the terms and conditions of the Indenture and (ii) if the conversion value of such
Convertible Debt exceeds $1,000, in the number of shares of the Company’s common stock as
calculated pursuant to the terms and conditions of the Indenture, (e) with respect to the
conversion of the Convertible Debt into shares of the Company’s common stock, the Company may pay
the cash value of fractional shares of the Company’s common stock pursuant to the terms and
conditions of the Indenture and (f) the Company may repurchase, redeem or prepay the Convertible
Debt provided that no Default or Event of Default has occurred and is continuing at the time of the
consummation of such



76









 




repurchase, redemption or prepayment and no Default or Event of Default would occur after
giving effect to such repurchase, redemption or prepayment.




     8.11 ERISA. The Company shall not, and shall not suffer or permit any of its
Subsidiaries to, (a) terminate any Plan subject to Title IV of ERISA so as to result in any
material (in the opinion of the Majority Lenders) liability to the Company or any ERISA Affiliate,
(b) permit to exist any ERISA Event or any other event or condition, which presents the risk of a
material (in the opinion of the Majority Lenders) liability to the Company or any ERISA Affiliate,
(c) make a complete or partial withdrawal (within the meaning of ERISA Section 4201) from any
Multiemployer Plan so as to result in any material (in the opinion of the Majority Lenders)
liability to the Company or any ERISA Affiliate, (d) enter into any new Plan or modify any existing
Plan so as to increase its obligations thereunder which could result in any material (in the
opinion of the Majority Lenders) liability to the Company or any ERISA Affiliate, or (e) permit the
present value of all nonforfeitable accrued benefits under any Plan (using the actuarial
assumptions utilized by the PBGC upon termination of a Plan) materially (in the opinion of the
Majority Lenders) to exceed the fair market value of Plan assets allocable to such benefits, all
determined as of the most recent valuation date for each such Plan.



     8.12 Change in Business. The Company shall not, and shall not suffer or permit any
Subsidiary to, engage in any material line of business substantially different from those lines of
business, and reasonable extensions thereof, carried on by the Company and its Subsidiaries taken
as a whole on the Closing Date.



     8.13 Accounting Changes. The Company shall not, and shall not suffer or permit any
Subsidiary to, make any significant change in accounting treatment or reporting practices, except
as required by GAAP or change the fiscal year of the Company or of any Subsidiary.



     8.14 Minimum Net Worth. The Company shall not permit its consolidated Net Worth at any
time after the Closing Date to be less than an amount equal to the sum of (a) 85% of the Company’s
Net Worth as of the last day of its fiscal quarter ending March 31, 2010 plus (b) 50% of
the Company’s positive net income as determined in accordance with GAAP (with no deduction for net
losses), if any, for each fiscal quarter ending after April 1, 2010 and prior to any date of
determination hereunder plus (c) an amount equal to 100% of the net cash and non-cash
proceeds of any equity securities issued by the Company or its Subsidiaries (other than to the
Company or any Subsidiary) after April 1, 2010 and prior to any date of determination.



     8.15 Leverage Ratio. The Company shall not, at any time, permit its Leverage Ratio to be
greater than 3.00:1.0.



     8.16 Fixed Charge Coverage Ratio. The Company shall not, as of the last day of any
fiscal quarter, permit its Fixed Charge Coverage Ratio for the four fiscal quarters then ended as
of such day (taken as one accounting period) to be less than 1.20:1.0.



     8.17 No Impairment of Intercompany Transfers; Burdensome Restrictions. The Company shall
not, and shall not permit any Subsidiary to, directly or indirectly enter into or become bound by
any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) could
directly or indirectly restrict, prohibit or require the consent of any



77









 




Person with respect to the payment of dividends or distributions or the making or repayment of
intercompany loans or the transfer of assets by a Subsidiary of the Company to the Company or such
Subsidiaries’ shareholders, except for (1) restrictions with respect to a Subsidiary imposed
pursuant to an agreement entered into for the disposition of all or substantially all of the equity
or Property of such Subsidiary (or the Property subject to such disposition) permitted under
Section 8.02 pending the closing of such disposition, (2) restrictions on the transfer of
assets that are subject to Liens permitted by Section 8.01, and (3) restrictions on the
transfer of software licenses or similar contracts imposed by the applicable licensor or similar
party, (b) limits the ability of any Subsidiary to Guarantee the Indebtedness of the Company.




     8.18 Excluded Subsidiaries. The Company shall not permit any Excluded Subsidiary to own
the capital stock of any Subsidiary that is not an Excluded Subsidiary.



     8.19 Modification of Convertible Debt. The Company shall not make any modification to
the Indenture or otherwise to the terms and conditions governing the Convertible Debt which could
reasonably be expected to have a materially adverse effect on the Company’s or the Lenders’ rights
and interests without the approval of the Majority Lenders.



ARTICLE IX




EVENTS OF DEFAULT



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



          (a) Non-Payment. The Company fails to pay, (i) when and as required to be paid
herein, any amount of principal of any Loan or of any L/C Obligation, or (ii) within five (5) days
after the same becomes due, any interest, fee or any other amount payable hereunder or under any
other Loan Document;




          (b) Representation or Warranty. Any representation or warranty by the Company or any
Subsidiary made or deemed made herein, in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by the Company, any Subsidiary, or any
Responsible Officer, furnished at any time under this Agreement, or in or under any other Loan
Document, is untrue or incorrect in any material respect (or, in the case of representations and
warranties that are qualified by materiality provisions, untrue or incorrect in any respect) on or
as of the date made or deemed made;




          (c) Specific Defaults. The Company fails to perform or observe any term, covenant or
agreement contained in any of Section 7.01, 7.02(a), (b), or (e),
7.03 (a), (b), or (c), 7.04(a) or 7.08 or in Article
VIII;




          (d) Other Defaults. The Company or any Subsidiary party thereto fails to perform or
observe any other term or covenant contained in this Agreement or any other Loan Document, and such
default shall continue unremedied for a period of thirty (30) days after the earlier of (i) the
date upon which a Responsible Officer knew or reasonably should have known of such failure or (ii)
the date upon which written notice thereof is given to the Company by the Agent or any Lender;







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          (e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment in
respect of any Indebtedness or Contingent Obligation (other than in respect of Swap Contracts),
having an aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit arrangement) of
more than $5,000,000 when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or notice period, if
any, specified in the relevant document on the date of such failure; or (B) fails to perform or
observe any other condition or covenant, or any other event shall occur or condition exist with
respect to the obligations of the Company or such Subsidiary, under any agreement or instrument
relating to any Indebtedness or Contingent Obligation of more than $5,000,000, and such failure
continues after the applicable grace or notice period, if any, specified in the relevant document
on the date of such failure if the effect of such failure, event or condition is to cause, or to
permit the holder or holders of such Indebtedness or beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause such Indebtedness to be declared to be due and payable prior to its stated
maturity, or such Contingent Obligation to become payable or cash collateral in respect thereof to
be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (1) any event of default under such Swap Contract as to which
the Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (2) any
Termination Event (as so defined) as to which the Company or any Subsidiary is an Affected Party
(as so defined), and, in either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $5,000,000;




          (f) Insolvency; Voluntary Proceedings. The Company or any Subsidiary (i) ceases or
fails to be solvent, or generally fails to pay, or admits in writing its inability to pay, its
debts as they become due, subject to applicable grace periods, if any, whether at stated maturity
or otherwise; (ii) commences any Insolvency Proceeding with respect to itself; or (iii) takes any
action to effectuate or authorize any of the foregoing;




          (g) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding is commenced
or filed against the Company or any Subsidiary, or any writ, judgment, warrant of attachment,
execution or similar process, is issued or levied against a substantial part of the Company’s or
any Subsidiary’s properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be released, vacated
or fully bonded within sixty (60) days after commencement, filing or levy; (ii) the Company or any
Subsidiary admits the material allegations of a petition against it in any Insolvency Proceeding,
or an order for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) the Company or any Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;




          (h) ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the
Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate
amount in excess of $1,000,000, (ii) the aggregate amount of Unfunded Pension






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Liability among all Pension Plans at any time exceeds $1,000,000; or (iii) the Company or any
ERISA Affiliate shall fail 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 $1,000,000, or (iv) the Company or any
ERISA Affiliate shall fail to pay when due any required installment or any other payment required
under Section 412 of the Code in an aggregate amount in excess of $1,000,000;




          (i) Monetary Judgments. One or more non-interlocutory judgments, non-interlocutory
orders, decrees or arbitration awards is entered against the Company or any Subsidiary involving in
the aggregate a liability (to the extent not covered by independent third-party insurance or
reinsurance as to which the insurer does not dispute coverage) as to any single or related series
of transactions, incidents or conditions, of $5,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of thirty (30) days after the entry
thereof;




          (j) Non-Monetary Judgments. Any non-monetary judgment, order or decree is entered
against the Company or any Subsidiary which does or would reasonably be expected to have a Material
Adverse Effect, and there shall be any period of thirty (30) consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect;




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




          (l) Invalidity. This Agreement or any other Loan Document is for any reason partially
(including with respect to future advances) or wholly revoked or invalidated, or otherwise ceases
to be in full force and effect (other than pursuant to the terms hereof or thereof) in any
material respect, or the Company, any Guarantor or any other Person contests in any manner the
validity or enforceability hereof or thereof or denies that it has any further liability or
obligation hereunder of thereunder, as applicable.




     9.02 Remedies. If any Event of Default occurs, the Agent shall, at the request of, or
may, with the consent of, the Majority Lenders:



          (a) declare the commitment of each Lender to make Loans and any obligation of the Issuing Bank
to Issue Letters of Credit to be terminated, whereupon such commitments and obligation shall be
terminated;




          (b) declare an amount equal to the maximum aggregate amount that is or at any time thereafter
may become available for drawing under any outstanding Letters of Credit (whether or not any
beneficiary shall have presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due and payable, and
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 Company; and







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          (c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the
outstanding amount thereof);




          (d) exercise on behalf of itself and the Lenders all rights and remedies available to it and
the Lenders under the Loan Documents or applicable law;



provided, however, that upon the occurrence of any event specified in Sections
9.01(f) or (g) (in the case of clause (i) of Section 9.01(g) upon the
expiration of the sixty (60) day period mentioned therein), the obligation of each Lender to make
Loans and any obligation of the Issuing Bank to Issue Letters of Credit shall automatically
terminate and 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 Company
to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in
each case, without further act of the Agent, the Issuing Bank or any Lender.




     9.03 Rights Not Exclusive. The rights provided for in this Agreement and the other Loan
Documents are cumulative and are not exclusive of any other rights, powers, privileges or remedies
provided by law or in equity, or under any other instrument, document or agreement now existing or
hereafter arising.



ARTICLE X




THE AGENT



     10.01 Appointment and Authority. Each of the Lenders and the Issuing Bank hereby
irrevocably appoints Bank of America to act on its behalf as the Agent hereunder and under the
other Loan Documents and authorizes the Agent to take such actions on its behalf and to exercise
such powers as are delegated to the 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 Agent, the Lenders and the Issuing Bank, and the Company shall not have
rights as a third party beneficiary of any of such provisions.



     10.02 Rights as a Lender. The Person serving as the 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 Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly
indicated or unless the context otherwise requires, include the Person serving as the 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 Company or any Subsidiary or other Affiliate thereof as if
such Person were not the Agent hereunder and without any duty to account therefor to the Lenders.



     10.03 Exculpatory Provisions. The 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 Agent:



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







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          (b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Agent is required to exercise as directed in writing by the Majority 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 Agent shall not be required to take any action that, in
its opinion or the opinion of its counsel, may expose the 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 Company or any of its Affiliates that is communicated to or obtained by the Person serving as
the Agent or any of its Affiliates in any capacity.



The Agent shall not be liable for any action taken or not taken by it (i) with the consent or at
the request of the Majority Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 9.02 and 11.01) or (ii) in the absence of its own gross
negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default
unless and until notice describing such Default is given to the Agent by the Company, a Lender or
the Issuing Bank.



The 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 Agent.




     10.04 Reliance by Agent. The 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 Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon. In determining compliance with any condition hereunder to the
making of a Loan, or the Issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the Issuing Bank, the Agent may presume that such condition is
satisfactory to such Lender or the Issuing Bank unless the Agent shall have received notice to the
contrary from such Lender or the Issuing Bank prior to the making of such Loan or the Issuance of
such Letter of Credit. The Agent may consult with legal counsel (who may be counsel for the
Company), 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.



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     10.05 Delegation of Duties. The 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 Agent. The 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 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 Agent.



     10.06 Resignation of Agent.



          (a) The Agent may at any time give notice of its resignation to the Lenders, the Issuing Bank
and the Company. Upon receipt of any such notice of resignation, the Majority Lenders shall have
the right, in consultation with the Company, 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 Majority Lenders and shall have accepted
such appointment within 30 days after the retiring Agent gives notice of its resignation, then the
retiring Agent may on behalf of the Lenders and the Issuing Bank, appoint a successor Agent meeting
the qualifications set forth above; provided that if the Agent shall notify the Company 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 Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any Cash Collateral held by the Agent on behalf of the Lenders or the Issuing
Bank under any of the Loan Documents, the retiring Agent shall continue to hold such Cash
Collateral until such time as a successor Agent is appointed) and (2) all payments, communications
and determinations provided to be made by, to or through the Agent shall instead be made by or to
each Lender and the Issuing Bank directly, until such time as the Majority Lenders appoint a
successor Agent as provided for above in this Section. Upon the acceptance of a successor’s
appointment as Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Agent and the retiring 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 Company to a successor Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the retiring Agent’s
resignation hereunder and under the other Loan Documents, the provisions of this Article and
Sections 11.04 and 11.05 shall continue in effect for the benefit of such retiring
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 Agent was acting as Agent.




          (b) Any resignation by Bank of America as Agent pursuant to this Section shall also constitute
its resignation as Issuing Bank and Swing Line Bank. Upon the acceptance of a successor’s
appointment as Agent hereunder, (a) such successor shall succeed to and become vested with all of
the rights, powers, privileges and duties of the retiring Issuing Bank and Swing Line Bank, (b) the
retiring Issuing Bank and Swing Line Bank shall be discharged from all of their respective duties
and obligations hereunder or under the other Loan Documents, and (c) the successor Issuing Bank
shall Issue letters of credit in substitution for the Letters of






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Credit, if any, outstanding at the time of such succession or make other arrangements
satisfactory to the retiring Issuing Bank to effectively assume the obligations of the retiring
Issuing Bank with respect to such Letters of Credit.




     10.07 Non-Reliance on Agent and Other Lenders. Each Lender and the Issuing Bank
acknowledges that it has, independently and without reliance upon the Agent or any other Lender or
any of their Related Parties and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender
and the Issuing Bank also acknowledges that it will, independently and without reliance upon the
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.



     10.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, neither the
Arranger (as sole lead arranger or as book manager) nor any Co-Syndication Agent 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 Agent, a Lender or the
Issuing Bank hereunder. Without limiting the foregoing, none of such Lenders shall have or be
deemed to have a fiduciary relationship with any Lender. Each Lender hereby makes the same
acknowledgments with respect to the relevant Lenders in their respective capacities as Arranger or
Co-Syndication Agent, as applicable, as it makes with respect to the Agent in the preceding
paragraph.



     10.09 Withholding Tax.



          (a) If any Lender claims exemption from, or reduction of, withholding tax under a United
States tax treaty by providing IRS Form W-8BEN and such Lender sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of the Company to such
Lender, such Lender agrees to notify the Agent of the percentage amount in which it is no longer
the beneficial owner of Obligations of the Company to such Lender. To the extent of such
percentage amount, the Agent will treat such Lender’s IRS Form W-8BEN as no longer valid.




          (b) If any Lender claiming exemption from United States withholding tax by filing IRS Form
W-8ECI with the Agent sells, assigns, grants a participation in, or otherwise transfers all or part
of the Obligations of the Company to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.




          (c) If any Lender is entitled to a reduction in the applicable withholding tax, the Agent may
withhold from any interest payment to such Lender an amount equivalent to the applicable
withholding tax after taking into account such reduction. However, if the forms or other
documentation required by clause (a) of this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Lender not providing such forms or other
documentation an amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction.







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          (d) If the IRS or any other Governmental Authority of the United States or other jurisdiction
asserts a claim that the Agent did not properly withhold tax from amounts paid to or for the
account of any Lender (because the appropriate form was not delivered or was not properly executed,
or because such Lender failed to notify the Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other reason) such Lender
shall indemnify the Agent fully for all amounts paid, directly or indirectly, by the Agent as tax
or otherwise, including penalties and interest, and including any taxes imposed by any jurisdiction
on the amounts payable to the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this Section shall survive the
payment of all Obligations and the resignation or replacement of the Agent.




     10.10 Guaranty Matters. The Lenders irrevocably authorize the Agent, at its option and
in its discretion to release any Guarantor from its obligations under the Guaranty if such Person
ceases to be a Subsidiary as a result of a transaction permitted hereunder. Upon request by the
Agent at any time, the Majority Lenders will confirm in writing the Agent’s authority to release
any Guarantor from its obligations under the Guaranty pursuant to this Section 10.10.



     10.11 Reimbursement by Lenders. To the extent that the Company for any reason fails to
indefeasibly pay any amount required under Sections 11.04 or 11.05 to be paid by it
to the Agent (or any sub-agent thereof), the Issuing Bank or any Agent-Related Party, each Lender
severally agrees to pay to the Agent (or any such sub-agent), the Issuing Bank or such
Agent-Related Party, as the case may be, such Lender’s Pro Rata Share (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 Agent (or any such sub-agent)
or the Issuing Bank in its capacity as such, or against any Agent-Related Party acting for the
Agent (or any such sub-agent) or Issuing Bank in connection with such capacity. The obligations of
the Lenders under this Section 10.11 are subject to the provisions of Section
2.13(b).



ARTICLE XI




MISCELLANEOUS



     11.01 Amendments and Waivers. No amendment or waiver of any provision of this Agreement
or any other Loan Document, and no consent to any departure by the Company or any other Guarantor
therefrom, shall be effective unless in writing signed by the Majority Lenders and the Company or
the applicable Guarantor, as the case may be, and acknowledged by the 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 5.01 (except for Section 5.01(e))
without the written consent of each Lender;







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          (b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated
pursuant to Section 9.02) without the written consent of such Lender;




          (c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(other than pursuant to Section 2.07) 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) other than by operation of the provisions of Section 2.13 or 2.16, reduce
the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or
(subject to clause (v) of the second proviso to this Section 11.01) 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
Majority Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any
obligation of the Company to pay interest at the Default Rate or (ii) to amend any financial
covenant hereunder (or any defined term used therein) if the effect of such amendment would be to
reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;




          (e) change Section 2.14 in a manner that would alter the pro rata sharing of payments
required thereby without the written consent of each Lender;




          (f) change any provision of this Section or the definition of “Majority 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; or




          (g) release any Guarantor (other than pursuant to this Agreement or the Guaranty) from the
Guaranty without the written consent of each Lender except as otherwise may be provided in this
Agreement or in the Guaranty or except where the consent of the Majority Lenders only is provided
for;



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






86









 







requiring the consent of all Lenders or each affected Lender that by its terms affects any
Defaulting Lender more adversely than other affected Lenders shall require the consent of such
Defaulting Lender.




     11.02 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 Company, the Agent, the Issuing Bank or the Swing Line Bank, to the
address, telecopier number, electronic mail address or telephone number specified for such
Person on Schedule 11.02; and




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


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




          (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Bank hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Agent,
provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Article II if such Lender or the Issuing Bank, as applicable, has notified the
Agent that it is incapable of receiving notices under such Article by electronic communication.
The Agent or the Company 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 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,






87









 







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-RELATED PARTIES DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMPANY MATERIALS OR THE
ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
COMPANY 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-RELATED PARTY IN CONNECTION WITH
THE COMPANY MATERIALS OR THE PLATFORM. In no event shall the Agent or any Agent-Related Parties
have any liability to the Company, any Lender, the Issuing Bank or any other Person for losses,
claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise)
arising out of the Company’s or the Agent’s transmission of Company Materials through the Internet,
except to the extent that such losses, claims, damages, liabilities or expenses are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Agent-Related Party; provided,
however, that in no event shall any Agent-Related Party have any liability to the Company,
any Lender, the Issuing Bank 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 Company, the Agent, the Issuing Bank and the
Swing Line Bank 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 Company, the Agent, the Issuing Bank and the Swing Line Bank.




          (e) Reliance by Agent, Issuing Bank and Lenders. The Agent, the Issuing Bank and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Borrowing Notices)
purportedly given by or on behalf of the Company 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 Company shall indemnify the Indemnified Persons 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 Company. All telephonic notices to and other telephonic
communications with the Agent may be recorded by the Agent, and each of the parties hereto hereby
consents to such recording.




     11.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay in exercising,
on the part of the Agent or any Lender, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any right,



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remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.




     11.04 Costs and Expenses. The Company shall pay (i) all reasonable out of pocket
expenses incurred by the Agent and its Affiliates (including the reasonable fees, charges and
disbursements of counsel for the 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 Issuing
Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out of pocket expenses incurred by the Agent, any
Lender or the Issuing Bank (including the fees, charges and disbursements of any counsel for the
Agent, any Lender or the Issuing Bank), 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 out of pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit.



     11.05 Company Indemnification; Waiver of Consequential Damages.



          (a) Whether or not the transactions contemplated hereby are consummated, the Company shall
indemnify, defend and hold the Agent-Related Persons, the Issuing Bank and each Lender and its
respective Affiliates and the partners, officers, directors, employees, counsel, agents, trustees,
advisors and attorneys-in-fact of it and its Affiliates (each, an “Indemnified Person”)
harmless from and against any and all liabilities, claims, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements (including Attorney Costs) of
any kind or nature whatsoever which may at any time (including at any time following repayment of
the Loans, the termination of the Letters of Credit and the termination, resignation or replacement
of the Agent or replacement of any Lender) be imposed on, incurred by or asserted against any such
Person by any third party or by the Company or any of its Affiliates in any way relating to or
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 Agent (and
any sub-agent thereof) and the Agent-Related Persons only, the administration of this Agreement and
the other Loan Documents (including in respect of any matters addressed in Section 4.01),
(ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including
any refusal by the Issuing Bank 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 Company or any of its Subsidiaries, or any Environmental
Liability related in any way to the Company 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
Company, and regardless of whether any Indemnified Party is a party thereto; provided that
such






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indemnity shall not, as to any Indemnified Party, be available to the extent that such losses,
claims, damages, liabilities or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Indemnified Party or (y) result from a claim brought by the Company
against an Indemnified Party for breach of such Indemnified Party’s obligations hereunder or under
any other Loan Document, if the Company has obtained a final and nonappealable judgment in its
favor on such claim as determined by a court of competent jurisdiction.




          (b) To the fullest extent permitted by applicable law, the Company shall not assert, and
hereby waives, any claim against any Indemnified Party, 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 Indemnified Party referred to in
subsection (a) 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 Indemnified
Party through telecommunications, electronic or other information transmission systems in
connection with this Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby other than for direct or actual damages resulting from the gross negligence or willful
misconduct of such Indemnified Party as determined by a final and nonappealable judgment of a court
of competent jurisdiction.




          (c) The agreements in this Section 11.05 shall survive the resignation of the Agent,
the Issuing Bank and the Swing Line Bank, the replacement of any Lender, the payment in full of
the Obligations and the termination of this Agreement.




     11.06 Payments Set Aside. To the extent that any payment by or on behalf of the Company
is made to the Agent, the Issuing Bank or any Lender, or the Agent, the Issuing Bank or any Lender
exercises its right of set-off, and such payment or the proceeds of such set-off 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 Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding 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 set-off had not occurred, and (b) each Lender
severally agrees to pay to the Agent upon demand its pro rata share of any amount so recovered from
or repaid by the Agent. The obligations of the Lenders and the Issuing Bank under clause (b) of
the preceding sentence shall survive the payment in full of the Obligations and the termination of
this Agreement.



     11.07 Successors and Assigns. 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 Company may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of the Agent and each Lender and no Lender
may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an
Eligible Assignee in accordance with the provisions of subsection (a) of Section 11.08,
(ii) by way of participation in accordance with the provisions subsection (c) of Section
11.08, or (iii) by



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way of pledge or assignment of a security interest subject to the restrictions of subsection
(e) of Section 11.08 (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 (c) of Section 11.08
and, to the extent expressly contemplated hereby, the Indemnified Persons) any legal or equitable
right, remedy or claim under or by reason of this Agreement.




     11.08 Assignments by Lenders; Participations; Register.



          (a) Assignments by Lenders. Any Lender may at any time assign to one or more
assignees all or a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this Section 11.08,
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 (a)(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 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 Agent and, so long as no Event of Default has occurred and is
continuing, the Company 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 rights in respect of the Swing Line Bank’s rights and
obligations in respect of Swing Line Loans;




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



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     (A) the consent of the Company (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 Company shall be
deemed to have consented to any such assignment unless it shall object thereto by
written notice to the Agent within five (5) Business Days after having received
notice thereof;




     (B) the consent of the 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 Issuing Bank (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 Bank (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 Agent an Assignment and Assumption, together with a processing and
recordation fee in the amount of $3,500; provided, however, that the 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 Agent an
Administrative Questionnaire.




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



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Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment
of rights and obligations of any Defaulting Lender hereunder shall become effective under
applicable Law without compliance with the provisions of this paragraph, then the assignee
of such interest shall be deemed to be a Defaulting Lender for all purposes of this
Agreement until such compliance occurs.




Subject to acceptance and recording thereof by the 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
4.01, 4.03, 11.04 and 11.05 with respect to facts and
circumstances occurring prior to the effective date of such assignment. Upon request, the
Company (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
(c) of this Section.



     (b) Register. The Agent, acting solely for this purpose as an agent of the Company,
shall maintain at the 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 Company, the 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 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 Company and any Lender,
at any reasonable time and from time to time upon reasonable prior notice.



     (c) Participations. Any Lender may at any time, without the consent of, or notice to,
the Company or the Agent, sell participations to any Person (other than a natural person, a
Defaulting Lender or the Company or any of the Company’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 Company, the Agent, the Lenders and the Issuing Bank shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and obligations under this
Agreement. To the extent permitted by law, each Participant also shall be entitled to the benefits
of Section



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11.10 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.14 as though it were a Lender.




     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 11.01 that affects such Participant. Subject to subsection (d) of this Section,
the Company agrees that each Participant shall be entitled to the benefits of Sections 4.01
and 4.03 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (a) of this Section.



     (d) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 4.01 or 4.03 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 Company’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 4.01 unless the Company is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Company, to comply with
Section 4.01(e) as though it were a Lender.



     (e) 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.



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



     (g) Resignation as Issuing Bank or Swing Line Bank 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 thirty (30)
days’ notice to the Company and the Lenders, resign as Issuing Bank and/or (ii) upon thirty (30)
days’ notice to the Company, resign as Swing Line Bank. In the event of any such resignation as
Issuing Bank or Swing Line Bank, the Company shall be entitled to appoint from among the Lenders a
successor Issuing Bank or Swing Line Bank hereunder; provided, however, that no
failure by the Company to appoint any such successor shall affect the resignation of Bank of
America as Issuing Bank or Swing Line Bank, as the case



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may be. If Bank of America resigns as Issuing Bank, it shall retain all the rights and
obligations of the Issuing Bank hereunder with respect to all Letters of Credit outstanding as of
the effective date of its resignation as Issuing Bank and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Revolving Loans or fund risk
participations in pursuant to Section 3.03(c)). If Bank of America resigns as Swing Line
Bank, it shall retain all the rights of the Swing Line Bank provided for hereunder with respect to
Swing Line Loans made by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding
Swing Line Loans pursuant to Section 2.03(b)(ii).




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



     11.10 Set-off. In addition to any rights and remedies of the Lenders provided by law, if
an Event of Default exists or the Loans have been accelerated, each Lender, the Issuing Bank and
each of their respective Affiliates is hereby authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any time owing by, such




95












 




Lender, the Issuing Bank or any such Affiliate to or for the credit or the account of the
Company against any and all Obligations owing to such Lender, the Issuing Bank or any such
Affiliate now or hereafter existing, irrespective of whether or not the Agent, such Lender or the
Issuing Bank shall have made demand under this Agreement or any Loan Document and although such
Obligations may be contingent or unmatured or are owed to a branch or office of such Lender or the
Issuing Bank 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 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 Agent and the Lenders, and (y) the Defaulting Lender shall provide
promptly to the 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
Issuing Bank and their respective Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender, the Issuing Bank or their respective
Affiliates may have. Each Lender agrees promptly to notify the Company and the Agent after any such
set-off and application made by such Lender; provided, however, that the failure to
give such notice shall not affect the validity of such set-off and application.




     11.11 Notification of Addresses, Lending Offices, Etc. Each Lender shall notify the
Agent in writing of any changes in the address to which notices to the Lender should be directed,
of addresses of any Lending Office, of payment instructions in respect of all payments to be made
to it hereunder and of such other administrative information as the Agent shall reasonably request.



     11.12 Counterparts. This Agreement may be executed in any number of separate
counterparts, each of which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the same instrument.



     11.13 Severability. The illegality or unenforceability of any provision of this
Agreement or any instrument or agreement required hereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions of this Agreement or any instrument or
agreement required hereunder.



     11.14 No Third Parties Benefited. This Agreement is made and entered into for the
sole protection and legal benefit of the Company, the Lenders, the Agent and the Agent-Related
Persons, and their permitted successors and assigns, and no other Person shall be a direct or
indirect legal beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.



     11.15 Governing Law; Jurisdiction; Venue; Etc.



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



     (b) SUBMISSION TO JURISDICTION. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE



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NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
ILLINOIS SITTING IN COOK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE NORTHERN DISTRICT OF
ILLINOIS, 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 ILLINOIS 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 AGENT, ANY
LENDER OR THE ISSUING BANK MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE COMPANY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.




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



     (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.



     11.16 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



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DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.




     11.17 USA PATRIOT Act Notice. Each Lender that is subject to the Act (as hereinafter
defined) and the Agent (for itself and not on behalf of any Lender) hereby notifies the Company
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 Company, which information includes the name and address of the Company and
other information that will allow such Lender or the Agent, as applicable, to identify the Company
in accordance with the Act. The Company shall, promptly following a request by the Agent or any
Lender, provide all documentation and other information that the Agent or such Lender requests in
order to comply with its ongoing obligations under applicable “know your customer” and anti-money
laundering rules and regulations, including the Act.



     11.18 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
Agent and each Lender, regardless of any investigation made by the Agent or any Lender or on their
behalf and notwithstanding that the 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.



     11.19 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 Company
acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the
arranging and other services regarding this Agreement provided by the Agent and the Arranger, are
arm’s-length commercial transactions between the Company and its Affiliates, on the one hand, and
the Agent and the Arranger, on the other hand, (B) the Company has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the
Company 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 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 Company or any of its Affiliates, or any other Person and (B) neither the
Agent nor the Arranger has any obligation to the Company or any of its Affiliates with respect to
the transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (iii) the 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 Company and its Affiliates, and neither the Agent nor the
Arranger has any obligation to disclose any of such interests to the Company or its Affiliates. To
the fullest extent permitted by law, the Company hereby waives and releases any claims that it may
have against the 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.



     11.20
Entire Agreement. This Agreement, together with the other Loan Documents, embodies the
entire agreement and understanding among the Company, the Lenders and the Agent, and supersedes



98









 




all
prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating
to the subject matter hereof and thereof.




[Signature Pages Follow]




99









 





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



	 	 	 	 	 
	 	CBIZ, INC.

 	 
	 	By  	/s/ Ware H. Grove
 	 
	 	 	Name:  	Ware H. Grove 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	BANK OF AMERICA, N.A., as Agent

 	 
	 	By  	/s/ Denise Jones
 	 
	 	 	Name:  	Denise Jones 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	BANK OF AMERICA, N.A., as a Lender and as the Issuing Bank

 	 
	 	By  	/s/ Jonathan M. Phillips
 	 
	 	 	Name:  	Jonathan M. Phillips 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	HUNTINGTON NATIONAL BANK, as a Lender

 	 
	 	By  	/s/ Brian H. Gallagher
 	 
	 	 	Name:  	Brian H. Gallagher 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., as a Lender

 	 
	 	By  	/s/ Phillip R. Duryea
 	 
	 	 	Name:  	Phillip R. Duryea 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By  	/s/ Jeff Kalinowski
 	 
	 	 	Name:  	Jeff Kalinowski 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION, as a Lender

 	 
	 	By  	/s/ Patrick McGraw
 	 
	 	 	Name:  	Patrick McGraw 	 
	 	 	Title:  	Vice President 	 
	 



Signature Page to Credit Agreement



 









 






	 	 	 	 	 
	 	FIFTH THIRD BANK, as a Lender

 	 
	 	By  	/s/ James P. Byrnes
 	 
	 	 	Name:  	James P. Byrnes 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as a Lender

 	 
	 	By  	/s/ Joseph G. Moran
 	 
	 	 	Name:  	Joseph G. Moran 	 
	 	 	Title:  	Senior Vice President 	 
	 



Signature Page to Credit Agreement




 









 





SCHEDULE 2.01




Schedule of Revolving Loan Commitments




	 	 	 	 	 	 	 	 	 
	Lender	 	Commitment	 	 	Pro Rata Share	 
	Bank of America, N.A.
	 	$	42,500,000.00	 	 	 	15.454545455	%
	Huntington National Bank
	 	$	40,000,000.00	 	 	 	14.545454545	%
	JPMorgan Chase Bank, N.A.
	 	$	40,000,000.00	 	 	 	14.545454545	%
	KeyBank National Association
	 	$	40,000,000.00	 	 	 	14.545454545	%
	U.S. Bank National Association
	 	$	40,000,000.00	 	 	 	14.545454545	%
	Fifth Third Bank
	 	$	37,500,000.00	 	 	 	13.636363637	%
	PNC Bank, National Association
	 	$	35,000,000.00	 	 	 	12.727272728	%
	 
	 	 	 	 	 	 
	Total
	 	$	275,000,000.00	 	 	 	100.000000000	%