EX-4.78






Exhibit 4.78



AMENDED AND RESTATED

FIRST LIEN CREDIT AND GUARANTY AGREEMENT




dated as of March 16, 2007




among




DTN, INC.,

as Borrower




DTN HOLDING COMPANY, INC.,

DTN, LLC,

DTN INFORMATION SERVICES LLC,

DTN HOLDCO CORPORATION,

and

CERTAIN SUBSIDIARIES OF DTN HOLDCO CORPORATION,

as Guarantors,




VARIOUS LENDERS,




GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Lead Arranger, Sole Bookrunner and Sole Syndication Agent,




and




GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent and Collateral Agent,




 






$267,000,000 First Lien Senior Secured Credit Facilities




 






 









 





TABLE OF CONTENTS





	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 1.
	 	DEFINITIONS AND INTERPRETATION	 	 	2	 
	 
	 	 	 	 	 	 
	1.1.
	 	Definitions	 	 	2	 
	1.2.
	 	Accounting Terms	 	 	23	 
	1.3.
	 	Interpretation, etc.	 	 	23	 
	 
	 	 	 	 	 	 
	SECTION 2.
	 	LOANS AND LETTERS OF CREDIT	 	 	23	 
	 
	 	 	 	 	 	 
	2.1.
	 	Term Loans	 	 	23	 
	2.2.
	 	Revolving Loans	 	 	24	 
	2.3.
	 	Swing Line Loans	 	 	25	 
	2.4.
	 	Issuance of Letters of Credit and Purchase of Participations Therein	 	 	27	 
	2.5.
	 	Pro Rata Shares; Availability of Funds	 	 	29	 
	2.6.
	 	Use of Proceeds	 	 	30	 
	2.7.
	 	Evidence of Debt; Register; Lenders’ Books and Records; Notes	 	 	30	 
	2.8.
	 	Interest on Loans	 	 	31	 
	2.9.
	 	Conversion/Continuation	 	 	33	 
	2.10.
	 	Default Interest	 	 	33	 
	2.11.
	 	Fees	 	 	34	 
	2.12.
	 	Scheduled Payments/Commitment Reductions	 	 	34	 
	2.13.
	 	Voluntary Prepayments/Commitment Reductions	 	 	35	 
	2.14.
	 	Mandatory Prepayments/Commitment Reductions	 	 	36	 
	2.15.
	 	Application of Prepayments/Reductions	 	 	38	 
	2.16.
	 	General Provisions Regarding Payments	 	 	39	 
	2.17.
	 	Ratable Sharing	 	 	40	 
	2.18.
	 	Making or Maintaining Eurodollar Rate Loans	 	 	40	 
	2.19.
	 	Increased Costs; Capital Adequacy	 	 	41	 
	2.20.
	 	Taxes; Withholding, etc.	 	 	42	 
	2.21.
	 	Obligation to Mitigate	 	 	44	 
	2.22.
	 	Defaulting Lenders	 	 	44	 
	2.23.
	 	Removal or Replacement of a Lender	 	 	45	 
	2.24.
	 	Incremental Facility	 	 	45	 
	 
	 	 	 	 	 	 
	SECTION 3.
	 	CONDITIONS PRECEDENT	 	 	46	 
	 
	 	 	 	 	 	 
	3.1.
	 	Closing Date	 	 	46	 
	3.2.
	 	Effective Date	 	 	46	 
	3.3.
	 	Conditions to Each Credit Extension	 	 	48	 
	 
	 	 	 	 	 	 
	SECTION 4.
	 	REPRESENTATIONS AND WARRANTIES	 	 	49	 
	 
	 	 	 	 	 	 
	4.1.
	 	Organization; Requisite Power and Authority; Qualification	 	 	49	 
	4.2.
	 	Capital Stock and Ownership	 	 	49	 
	4.3.
	 	Due Authorization	 	 	49	 
	4.4.
	 	No Conflict	 	 	49	 
	4.5.
	 	Governmental Consents	 	 	49	 
	4.6.
	 	Binding Obligation	 	 	50	 
	4.7.
	 	Historical Financial Statements	 	 	50	 
	4.8.
	 	Projections	 	 	50	 
	4.9.
	 	No Material Adverse Change	 	 	50	 
	4.10.
	 	No Restricted Junior Payments	 	 	50	 
	4.11.
	 	Adverse Proceedings, etc.	 	 	50	 
	4.12.
	 	Payment of Taxes	 	 	50	 
	4.13.
	 	Properties	 	 	51	 
	4.14.
	 	Environmental Matters	 	 	51	 
	4.15.
	 	No Defaults	 	 	51	 






i









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	4.16.
	 	Material Contracts	 	 	51	 
	4.17.
	 	Governmental Regulation	 	 	51	 
	4.18.
	 	Margin Stock	 	 	52	 
	4.19.
	 	Employee Matters	 	 	52	 
	4.20.
	 	Employee Benefit Plans	 	 	52	 
	4.21.
	 	Certain Fees	 	 	52	 
	4.22.
	 	Solvency	 	 	52	 
	4.23.
	 	Compliance with Statutes, etc.	 	 	53	 
	4.24.
	 	Disclosure	 	 	53	 
	4.25.
	 	Patriot Act	 	 	53	 
	 
	 	 	 	 	 	 
	SECTION 5.
	 	AFFIRMATIVE COVENANTS	 	 	53	 
	 
	 	 	 	 	 	 
	5.1.
	 	Financial Statements and Other Reports	 	 	53	 
	5.2.
	 	Existence	 	 	56	 
	5.3.
	 	Payment of Taxes and Claims	 	 	56	 
	5.4.
	 	Maintenance of Properties	 	 	56	 
	5.5.
	 	Insurance	 	 	57	 
	5.6.
	 	Books and Records; Inspections	 	 	57	 
	5.7.
	 	Lenders Meetings	 	 	57	 
	5.8.
	 	Compliance with Laws	 	 	57	 
	5.9.
	 	Environmental	 	 	57	 
	5.10.
	 	Subsidiaries and Additional Credit Parties	 	 	58	 
	5.11.
	 	Additional Material Real Estate Assets	 	 	59	 
	5.12.
	 	Interest Rate Protection	 	 	59	 
	5.13.
	 	Further Assurances	 	 	59	 
	5.14.
	 	Non-Consolidation	 	 	59	 
	5.15.
	 	Post-Closing Covenant	 	 	59	 
	 
	 	 	 	 	 	 
	SECTION 6.
	 	NEGATIVE COVENANTS	 	 	60	 
	 
	 	 	 	 	 	 
	6.1.
	 	Indebtedness	 	 	60	 
	6.2.
	 	Liens	 	 	61	 
	6.3.
	 	Equitable Lien	 	 	62	 
	6.4.
	 	No Further Negative Pledges	 	 	62	 
	6.5.
	 	Restricted Junior Payments	 	 	63	 
	6.6.
	 	Restrictions on Subsidiary Distributions	 	 	63	 
	6.7.
	 	Investments	 	 	63	 
	6.8.
	 	Financial Covenants	 	 	64	 
	6.9.
	 	Fundamental Changes; Disposition of Assets; Acquisitions	 	 	65	 
	6.10.
	 	Disposal of Subsidiary Interests	 	 	67	 
	6.11.
	 	Sales and Lease-Backs	 	 	67	 
	6.12.
	 	Transactions with Shareholders and Affiliates	 	 	67	 
	6.13.
	 	Conduct of Business	 	 	67	 
	6.14.
	 	Permitted Activities of Holdings	 	 	67	 
	6.15.
	 	Fiscal Year	 	 	68	 
	 
	 	 	 	 	 	 
	SECTION 7.
	 	GUARANTY	 	 	68	 
	 
	 	 	 	 	 	 
	7.1.
	 	Guaranty of the Obligations	 	 	68	 
	7.2.
	 	Contribution by Guarantors	 	 	68	 
	7.3.
	 	Payment by Guarantors	 	 	68	 
	7.4.
	 	Liability of Guarantors Absolute	 	 	68	 
	7.5.
	 	Waivers by Guarantors	 	 	70	 
	7.6.
	 	Guarantors’ Rights of Subrogation, Contribution, etc.	 	 	70	 






ii









 




TABLE OF CONTENTS

(continued)




	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	7.7.
	 	Subordination of Other Obligations	 	 	71	 
	7.8.
	 	Continuing Guaranty	 	 	71	 
	7.9.
	 	Authority of Guarantors or Company	 	 	71	 
	7.10.
	 	Financial Condition of Company	 	 	71	 
	7.11.
	 	Bankruptcy, etc.	 	 	71	 
	 
	 	 	 	 	 	 
	SECTION 8.
	 	EVENTS OF DEFAULT	 	 	72	 
	 
	 	 	 	 	 	 
	8.1.
	 	Events of Default	 	 	72	 
	 
	 	 	 	 	 	 
	SECTION 9.
	 	AGENTS	 	 	74	 
	 
	 	 	 	 	 	 
	9.1.
	 	Appointment of Agents	 	 	74	 
	9.2.
	 	Powers and Duties	 	 	74	 
	9.3.
	 	General Immunity	 	 	75	 
	9.4.
	 	Agents Entitled to Act as Lender	 	 	76	 
	9.5.
	 	Lenders' Representations, Warranties and Acknowledgment	 	 	76	 
	9.6.
	 	Right to Indemnity	 	 	76	 
	9.7.
	 	Successor Administrative Agent, Collateral Agent and Swing Line Lender	 	 	77	 
	9.8.
	 	Collateral Documents and Guaranty	 	 	77	 
	 
	 	 	 	 	 	 
	SECTION 10.
	 	MISCELLANEOUS	 	 	78	 
	 
	 	 	 	 	 	 
	10.1.
	 	Notices	 	 	78	 
	10.2.
	 	Expenses	 	 	78	 
	10.3.
	 	Indemnity	 	 	79	 
	10.4.
	 	Set-Off	 	 	79	 
	10.5.
	 	Amendments and Waivers	 	 	80	 
	10.6.
	 	Successors and Assigns; Participations	 	 	81	 
	10.7.
	 	Independence of Covenants	 	 	84	 
	10.8.
	 	Survival of Representations, Warranties and Agreements	 	 	85	 
	10.9.
	 	No Waiver; Remedies Cumulative	 	 	85	 
	10.10.
	 	Marshalling; Payments Set Aside	 	 	85	 
	10.11.
	 	Severability	 	 	85	 
	10.12.
	 	Obligations Several; Independent Nature of Lenders Rights	 	 	85	 
	10.13.
	 	Headings	 	 	85	 
	10.14.
	 	APPLICABLE LAW	 	 	85	 
	10.15.
	 	CONSENT TO JURISDICTION	 	 	85	 
	10.16.
	 	WAIVER OF JURY TRIAL	 	 	86	 
	10.17.
	 	Confidentiality	 	 	86	 
	10.18.
	 	Press Releases and Related Matters	 	 	87	 
	10.19.
	 	Usury Savings Clause	 	 	87	 
	10.20.
	 	Counterparts	 	 	87	 
	10.21.
	 	Effectiveness	 	 	87	 
	10.22.
	 	Patriot Act	 	 	87	 
	10.23.
	 	Electronic Execution of Assignment	 	 	87	 
	10.24.
	 	Amendment and Restatement	 	 	88	 
	10.25.
	 	Reaffirmation and Grant of Security Interests	 	 	88	 







iii









 





	 	 	 	 	 
	APPENDICES:*
	 	A-1	 	Tranche C Term Loan Commitments
	 
	 	A-2	 	[Reserved]
	 
	 	B	 	Notice Addresses
	 
	 	 	 	 
	SCHEDULES:
	 	4.1	 	Jurisdictions of Organization and Qualification
	 
	 	4.2	 	Capital Stock and Ownership
	 
	 	4.13	 	Real Estate Assets
	 
	 	4.16	 	Material Contracts
	 
	 	6.1	 	Certain Indebtedness
	 
	 	6.2	 	Certain Liens
	 
	 	6.6	 	Certain Restrictions on Subsidiary Distributions
	 
	 	6.7	 	Certain Investments
	 
	 	6.12	 	Certain Affiliate Transactions
	 
	 	 	 	 
	EXHIBITS:
	 	A-1	 	Funding Notice
	 
	 	A-2	 	Conversion/Continuation Notice
	 
	 	A-3	 	Issuance Notice
	 
	 	B-1	 	Term Loan Note
	 
	 	B-2	 	Revolving Loan Note
	 
	 	B-3	 	Swing Line Note
	 
	 	C	 	Compliance Certificate
	 
	 	D-1	 	Opinions of Kutak Rock LLP
	 
	 	D-2	 	Opinions of Fredrickson & Byron, P.A.
	 
	 	E	 	Assignment Agreement
	 
	 	F	 	Certificate Re Non-bank Status
	 
	 	G-1	 	Effective Date Certificate
	 
	 	G-2	 	Solvency Certificate
	 
	 	H	 	Counterpart Agreement
	 
	 	I	 	[Reserved]
	 
	 	J	 	[Reserved]
	 
	 	K	 	[Reserved]
	 
	 	L	 	Joinder Agreement






 





	 	 	 
	*	 	The Appendices, Schedules, and Exhibits to this agreement
have not been filed with this agreement. Pursuant to Item 601(b)(2)
of Regulation S-K, such documents are immaterial to an investment
decision. A copy of any of these omitted documents will be furnished
to the Commission by Telvent upon the Commission’s request.





iv








 





AMENDED AND RESTATED FIRST LIEN CREDIT AND GUARANTY AGREEMENT




          This AMENDED AND RESTATED FIRST LIEN CREDIT AND GUARANTY AGREEMENT, dated as of March 16,
2007, is entered into by and among DTN, INC. (formerly known as DATA TRANSMISSION NETWORK
CORPORATION), a Delaware corporation (“Company”), DTN HOLDING COMPANY, INC., a Delaware corporation
(as successor in interest to DTN HOLDING COMPANY, LLC, a Delaware limited liability company)
(together with its permitted successors, “Holdings”), DTN HOLDCO CORPORATION (formerly known as DTN
CORPORATION), a Delaware corporation (“DTN Corporation”), DTN, LLC, a Delaware limited liability
company (“DTN LLC”), DTN INFORMATION SERVICES LLC, a Delaware limited liability company (“DTN
Information” and, together with DTN Corporation and DTN LLC, together with their permitted
successors, the “Holdcos”), CERTAIN SUBSIDIARIES OF HOLDINGS, as Guarantors, the Lenders party
hereto from time to time, GOLDMAN SACHS CREDIT PARTNERS L.P. (“GSCP”), as Lead Arranger, Sole
Bookrunner and Sole Syndication Agent (in such capacities, “Syndication Agent”), and GENERAL
ELECTRIC CAPITAL CORPORATION (“GECC”), as Administrative Agent (together with its permitted
successors in such capacity, “Administrative Agent”) and as Collateral Agent (together with its
permitted successor in such capacity, “Collateral Agent”).




RECITALS:




     WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;



     WHEREAS, Company, Holdings, Holdcos, the Guarantors, GSCP, as lead arranger, sole bookrunner
and sole syndication agent, and GECC, as administrative agent and collateral agent, and the lenders
party thereto from time to time are parties to that certain First Lien Credit and Guaranty
Agreement, dated as of March 10, 2006 (as amended, supplemented or otherwise modified through the
date hereof, the “Existing First Lien Credit Agreement”);



     WHEREAS, Company, Holdings, Holdcos, the Guarantors, GSCP, as lead arranger, sole bookrunner,
sole syndication agent, administrative agent and collateral agent, and the lenders party thereto
from time to time are parties to that certain Second Lien Credit and Guaranty Agreement, dated as
of March 10, 2006 (as amended, supplemented or otherwise modified through the date hereof, the
“Existing Second Lien Credit Agreement”);



     WHEREAS, Company desires that certain of the existing lenders and other parties hereto agree
to amend and restate the Existing First Lien Credit Agreement in its entirety to: (i) establish
Tranche C Term Loans to be made hereunder; (ii) refinance the existing Tranche B Term Loans (the
“Existing Term Loans”) made and as defined under the Existing First Lien Credit Agreement with the
Tranche C Term Loans made hereunder; (iii) refinance all amounts outstanding under the Existing
Second Lien Credit Agreement; and (iv) make certain other changes as more fully set forth herein,
which amendment and restatement shall become effective upon the Effective Date as defined herein;



     WHEREAS, the Requisite Lenders have, on or prior to the Effective Date, authorized the
Administrative Agent to execute this Agreement on their behalf;



     WHEREAS, Company has agreed to secure all of its Obligations by reaffirming its grant to
Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on its assets,
including a pledge of all of the Capital Stock of each of its Domestic Subsidiaries; and



     WHEREAS, each Guarantor has agreed to guarantee the obligations of Company hereunder and to
secure its Obligations by reaffirming its grant to Collateral Agent, for the benefit of Secured
Parties, a First Priority Lien on substantially all of its assets, including a pledge of all of the
Capital Stock of its Domestic Subsidiaries (including Company but excluding DTN Leasing, Inc. and
its Subsidiaries).



     WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Existing First Lien Credit Agreement
and that this Agreement



 









 







amend and restate in its entirety the Existing First Lien Credit Agreement and re evidence the
Obligations outstanding on the Effective Date as contemplated hereby; and



     WHEREAS, it is the intent of Credit Parties to confirm that all Obligations of the Credit
Parties under the other Credit Documents, as amended hereby, shall continue in full force and
effect and that, from and after the Effective Date, all references to ‘the “Credit Agreement”
contained therein shall be deemed to refer to this Agreement;



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



SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1. Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



          “Adjusted Eurodollar Rate” means for each Interest Period, a rate of interest determined by
Administrative Agent equal to:





     (a) the offered rate for deposits in United States Dollars for the applicable Interest
Period that appears on Reuters Screen LIBOR01 as of 11:00 a.m. (London time), on the second
full LIBOR Business Day next preceding the first day of such Interest Period (unless such
date is not a Business Day, in which event the next succeeding Business Day will be used);
divided by




     (b) a number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on the day that is
two (2) LIBOR Business Days prior to the beginning of such Interest Period (including basic,
supplemental, marginal and emergency reserves under any regulations of the Federal Reserve
Board or other Governmental Authority having jurisdiction with respect thereto, as now and
from time to time in effect) for Eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board that are required to
be maintained by a member bank of the Federal Reserve System.



          If such interest rates shall cease to be available from Telerate News Service, the Adjusted
Eurodollar Rate shall be reasonably determined by the Administrative Agent from such financial
reporting service or other information as shall be publicly available.




          “Adjusted Maximum Consolidated Capital Expenditures” as defined in Section 6.8(d).




          “Administrative Agent” as defined in the preamble hereto.




          “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of any
Credit Party) at law or in equity, or before or by any Governmental Authority, domestic or foreign
(including any Environmental Claims), whether pending or, to the knowledge of any Credit Party,
threatened against or affecting any Credit Party or any property of any Credit Party.




          “Affected Lender” as defined in Section 2.18(b).



          “Affected Loans” as defined in Section 2.18(b).



          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 5% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the



2









 







management and policies of that Person, whether through the ownership of voting securities or
by contract or otherwise; provided, however, that solely with respect to the
definition of “Eligible Assignee,” a threshold of 10% or more shall be used instead of the
aforementioned 5% or more threshold.



          “Agent” means each of Syndication Agent, Administrative Agent and Collateral Agent.



          “Aggregate Amounts Due” as defined in Section 2.17.



          “Aggregate Payments” as defined in Section 7.2.



          “Agreement” means this Amended and Restated First Lien Credit and Guaranty Agreement, dated as
of March 16, 2007, as it may be amended, supplemented or otherwise modified from time to time.



          “Applicable Margin” means (i) with respect to Revolving Loans that are Eurodollar Rate Loans,
a percentage, per annum, determined by reference to the Leverage Ratio in effect from time to time
as set forth below:



	 	 	 
	Leverage Ratio	 	Revolving Loans
	3 3.75:1.00
	 	3.00%
	< 3.75:1.00
	 	2.75%





(ii) with respect to Tranche C Term Loans that are Eurodollar Rate Loans from the Effective Date
until the Tranche C Term Loan Maturity Date, 3.00%; (iii) with respect Revolving Loans and Tranche
C Term Loans that are Base Rate Loans, an amount equal to (a) the Applicable Margin for Eurodollar
Rate Loans as set forth in clause (i)(a), (i)(b) or (ii) above, as applicable, minus (b) 1.00% per
annum. No change in the Applicable Margin shall be effective until three Business Days after the
date on which Administrative Agent shall have received the applicable financial statements and a
Compliance Certificate pursuant to Section 5.1(d) calculating the Leverage Ratio. At any time
Company has not submitted to Administrative Agent the applicable information as and when required
under Section 5.1(d), the Applicable Margin shall be determined as if the Leverage Ratio were in
excess of 3.75:1.00. Within one Business Day of receipt of the applicable information under
Section 5.1(d), Administrative Agent shall give each Lender telefacsimile or telephonic notice
(confirmed in writing) of the Applicable Margin in effect from such date. In the event that any
New Term Loans are made on the Increased Amount Date, the Applicable Margin for such New Term Loans
shall be the rate per annum set forth in the applicable Joinder Agreement.




          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of property with, any
Person (other than any Credit Party), in one transaction or a series of transactions, of all or any
part of any Credit Party’s or any of its Subsidiaries’ businesses, assets or properties of any
kind, whether real, personal, or mixed and whether tangible or intangible, whether now owned or
hereafter acquired, including, without limitation, the Capital Stock of any of Holdings’
Subsidiaries, other than (i) inventory (or other assets) sold or leased in the ordinary course of
business (excluding any such sales by operations or divisions discontinued or to be discontinued),
and (ii) sales of other assets for aggregate consideration of less than $1,000,000 in the aggregate
during any Fiscal Year.



          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.



          “Assignment Effective Date” as defined in Section 10.6(b).



          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, or president (or the equivalent
thereof), and such Person’s chief financial officer or treasurer.




3









 




          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor federal statute.



          “Base Rate” means, for any day, a floating rate equal to the higher of (i) the rate publicly
quoted from time to time by The Wall Street Journal as the “base rate on corporate loans
posted by at least 75% of the nation’s 30 largest banks” (or, if The Wall Street Journal
ceases quoting a base rate of the type described, the highest per annum rate of interest published
by the Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected
Interest Rates” as the Bank prime loan rate or its equivalent), and (ii) the Federal Funds
Effective Rate plus 50 basis points per annum. Each change in any interest rate provided for in
the Agreement based upon the Base Rate shall take effect at the time of such change in the Base
Rate.



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



          “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.



          “Board of Governors” means the Board of Governors of the United States Federal Reserve System,
or any successor thereto.



          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” shall mean any day which is a
Business Day described in clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.



          “Capital Lease” means, as applied to any Person, any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is or should be
accounted for as a capital lease on the balance sheet of that Person.



          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.



          “Cash” means money, currency or a credit balance in any demand or Deposit Account.



          “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by
any Lender or by any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as
defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; and (v) shares of any money market
mutual fund that (a) has substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.



          “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit F.



4









 





          “Change of Control” means, at any time,




     (i) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under
the Exchange Act) other than one or more of the existing members of Holdings or
their Affiliates as of the Closing Date (1) shall have acquired beneficial ownership
of 50.1% or more on a fully diluted basis of the voting interest in the Capital
Stock of Holdings or (2) shall have obtained the power (whether or not exercised) to
elect a majority of the members of the board of directors (or similar governing
body) of Holdings;




     (ii) any Credit Party shall cease to beneficially own and control (either
directly or indirectly) at least 100% on a fully diluted basis of the economic and
voting interests in the Capital Stock of DTN LLC;




     (iii) any Credit Party shall cease to beneficially own and control (either
directly or indirectly) at least 80% on a fully diluted basis of the economic and
voting interests in the Capital Stock of DTN Information;




     (iv) any Credit Party shall cease to beneficially own and control (either
directly or indirectly) at least 100% on a fully diluted basis of the economic and
voting interests in the Capital Stock of DTN Corporation; or




     (iv) any Credit Party shall cease to beneficially own and control (either
directly or indirectly) 100% on a fully diluted basis of the economic and voting
interest in the Capital Stock of Company.



          “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Tranche C Term Loan Exposure, (b) Lenders having Revolving Exposure (including Swing
Line Lender) and (c) Lenders having New Term Loan Exposure, and (ii) with respect to Loans, each of
the following classes of Loans: (a) Tranche C Term Loans, (b) Revolving Loans (including Swing
Line Loans) and (c) New Term Loans.



          “Closing Date” means March 10, 2006, the date on which the Existing Term Loans were made.



          “Closing Date Mortgaged Property” as defined in Section 3.1(i) of the Existing First Lien
Credit Agreement.



          “Collateral” means, collectively, all of the real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.



          “Collateral Agent” as defined in the preamble hereto.



          “Collateral Documents” means the Pledge and Security Agreement, the Mortgages, the Landlord
Personal Property Collateral Access Agreements, if any, and all other instruments, documents and
agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit
Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any
real, personal or mixed property of that Credit Party as security for the Obligations.



          “Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that
provides information with respect to the personal or mixed property of each Credit Party.



          “Commitment” means any Revolving Commitment, Tranche C Term Loan Commitment or New Term Loan
Commitment.



          “Company” as defined in the preamble hereto.



5









 





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



          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Holdings and
its Subsidiaries on a consolidated basis equal to (i) Consolidated Net Income plus (ii) the
sum, without duplication, of the amounts for such period of (a) Consolidated Interest Expense, (b)
provisions for taxes based on income, (c) total depreciation expense, (d) total amortization
expense (including, without limitation, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with Indebtedness (including
the Obligations) and amortization of intangibles, including, without limitation, goodwill), (e)
other non-Cash items reducing Consolidated Net Income (excluding any such non-Cash item to the
extent that it represents an accrual or reserve for potential Cash items in any future period or
amortization of a prepaid Cash item that was paid in a prior period), and (f) compensation expense
recognized by Holdings in accordance with GAAP as a result of the payment of the dividend on the
Class C units of Holdings referenced in clause (ii) of the definition of Refinancing (as defined in
the Existing First Lien Credit Agreement), minus (iii) other non-Cash items increasing
Consolidated Net Income for such period (excluding any such non-Cash item to the extent it
represents the reversal of an accrual or reserve for potential Cash item in any prior period).



          “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of Holdings and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “purchase of property and equipment” or similar
items reflected in the consolidated statement of cash flows of Holdings and its Subsidiaries.



          “Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for
such period, excluding any amount not payable in Cash.



          “Consolidated Current Assets” means, as at any date of determination, the total assets of
Holdings and its Subsidiaries on a consolidated basis that may properly be classified as current
assets in conformity with GAAP, excluding Cash and Cash Equivalents.



          “Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of Holdings and its Subsidiaries on a consolidated basis that may properly be
classified as current liabilities in conformity with GAAP, excluding the current portion of
long-term debt.



          “Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to: (i)
the sum, without duplication, of the amounts for such period of (a) Consolidated Adjusted EBITDA,
plus (b) the Consolidated Working Capital Adjustment, minus (ii) the sum, without
duplication, of the amounts for such period of (a) scheduled repayments of Consolidated Total Debt,
(b) Consolidated Capital Expenditures (net of any proceeds of (y) any related financings with
respect to such expenditures and (z) any sales of assets used to finance such expenditures), (c)
Consolidated Cash Interest Expense, (d) provisions for current taxes based on income of Holdings
and its Subsidiaries and payable in cash with respect to such period and (e) Permitted Acquisitions
financed with Cash.



          “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of
Holdings and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness
of Holdings and its Subsidiaries, including all commissions, discounts and other fees and charges
owed with respect to letters of credit and net costs under Interest Rate Agreements, but excluding,
however, any amounts referred to in Section 2.11(d) payable on or before the Closing Date or the
Effective Date.



          “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Holdings and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person
(other than a Subsidiary of Holdings) in which any other Person (other than Holdings or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Holdings or any of its Subsidiaries by such Person during such
period, (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of
Holdings or is merged into or consolidated with Holdings or any of its Subsidiaries or that
Person’s assets are acquired by Holdings or any of its Subsidiaries, (c) the income of any
Subsidiary of Holdings to the extent that the declaration or payment



6









 







of dividends or similar distributions by that Subsidiary of that income is not at the time
permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to that Subsidiary, (d) any after-tax
gains or losses attributable to Asset Sales or returned surplus assets of any Pension Plan, and (e)
(to the extent not included in clauses (a) through (d) above) any net extraordinary gains or net
extraordinary losses.



          “Consolidated Senior Debt” means Consolidated Total Debt other than the unsecured Indebtedness
of Holdings and its Subsidiaries or Indebtedness that is subordinated to the Obligations and is
otherwise permitted hereunder.



          “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Holdings and its Subsidiaries determined on a consolidated
basis in accordance with GAAP.



          “Consolidated Working Capital” means, as at any date of determination, the excess of
Consolidated Current Assets over Consolidated Current Liabilities.



          “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Consolidated Working Capital as of the beginning
of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period.



          “Continuing Lender” means an Existing First Lien Lender under the Existing First Lien Credit
Agreement that has delivered a Lender Consent Letter agreeing to convert all of its Existing Term
Loans to Tranche C Term Loans hereunder.



          “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.



          “Contributing Guarantors” as defined in Section 7.2.



          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.



          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.



          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.



          “Credit Date” means the date of a Credit Extension.



          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
any Joinder Agreement, any documents or certificates executed by Company in favor of Issuing Bank
relating to Letters of Credit, and all other documents, instruments or agreements executed and
delivered by a Credit Party for the benefit of any Agent, Issuing Bank or any Lender in connection
herewith.



          “Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.



          “Credit Party” means each Guarantor, Company and any Subsidiary thereof that becomes a party
to a Credit Document after the Closing Date and shall exclude DTN Leasing and its Subsidiaries.



          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose



7









 







of hedging the foreign currency risk associated with Holdings’ and its Subsidiaries’
operations and not for speculative purposes.



          “Current Projections” as defined in Section 5.1(i).



          “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.



          “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all
of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans
of such Defaulting Lender.



          “Default Period” means, with respect to any Defaulting Lender, the period commencing on the
date of the applicable Funding Default and ending on the earliest of the following dates: (i) the
date on which all Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.13 or
Section 2.14 or by a combination thereof) and (b) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to honor its obligations
hereunder with respect to its Commitments, and (iii) the date on which Company, Administrative
Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing.



          “Defaulted Loan” as defined in Section 2.22.



          “Defaulting Lender” as defined in Section 2.22.



          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.



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



          “Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of
America, any State thereof or the District of Columbia.



          “DTN Corporation” as defined in the preamble hereto.



          “DTN Information” as defined in the preamble hereto.



          “DTN Leasing” means DTN Leasing, Inc., a Delaware corporation and its Subsidiaries.



          “DTN LLC” as defined in the preamble hereto.



          “Effective Date” means March 16, 2007, the date on which the conditions precedent set forth in
Section 3.2 shall have been satisfied or waived in accordance with the terms hereof.



          “Effective Date Certificate” means an Effective Date Certificate substantially in the form of
Exhibit G-1.



          “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof)
and (ii) any commercial bank, insurance company, investment or mutual fund or other entity that is
an “accredited investor” (as



8









 







defined in Regulation D under the Securities Act) and which extends credit or buys loans;
provided, no Credit Party shall be an Eligible Assignee and no Affiliate of any Credit
Party shall be an Eligible Assignee.



          “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by, any
Credit Party or any of their respective ERISA Affiliates.



          “Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.



          “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, Governmental Authorizations, or any other requirements of Governmental Authorities
relating to (i) environmental matters, including those relating to any Hazardous Materials
Activity; (ii) the generation, use, storage, transportation or disposal of Hazardous Materials; or
(iii) occupational safety and health, industrial hygiene, land use or the protection of human,
plant or animal health or welfare, in any manner applicable to any Credit Party or any Facility.



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



          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of any Credit Party shall
continue to be considered an ERISA Affiliate of such Credit Party within the meaning of this
definition with respect to the period such entity was an ERISA Affiliate of such Credit Party and
with respect to liabilities arising after such period for which such Credit Party could be liable
under the Internal Revenue Code or ERISA.



          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by any Credit Party or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability to any Credit Party or any of their
respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might
constitute grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on any Credit Party or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of any Credit Party or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore,
or the receipt by any Credit Party or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to the imposition on any Credit
Party or any of their respective ERISA Affiliates of



9









 







fines, penalties, taxes or related charges under Chapter 43 of the Internal Revenue Code or
under Section 409, Section 502(c), (i) or (1), or Section 4071 of ERISA in respect of any Employee
Benefit Plan in each case to the extent such would have a Material Adverse Effect; (ix) the
assertion of a material claim (other than routine claims for benefits) against any Employee Benefit
Plan other than a Multiemployer Plan or the assets thereof, or against any Credit Party or any of
their respective ERISA Affiliates in connection with any Employee Benefit Plan; (x) receipt from
the Internal Revenue Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue Code) to qualify
under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any
Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue
Code; or (xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or pursuant to ERISA with respect to any Pension Plan.



          “Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the
Adjusted Eurodollar Rate.



          “Event of Default” means each of the conditions or events set forth in Section 8.1.



          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.



          “Existing First Lien Credit Agreement” as defined in the recitals.



          “Existing First Lien Lenders” means each financial institution that is a “Lender” under and as
defined in the Existing First Lien Credit Agreement immediately prior to the Effective Date.



          “Existing Indebtedness” means the Existing Term Loans and Indebtedness and other obligations
outstanding under the Existing Second Lien Credit Agreement.



          “Existing Second Lien Credit Agreement” as defined in the recitals.



          “Existing Term Loans” as defined in the recitals.



          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by any Credit Party
or any of their respective predecessors or Affiliates.



          “Fair Share Contribution Amount” as defined in Section 7.2.



          “Fair Share” as defined in Section 7.2.



          “Federal Funds Effective Rate” means, for any day, a floating rate equal to the weighted
average of the rates on overnight federal funds transactions among members of the Federal Reserve
System, as determined by Administrative Agent in its sole discretion, which determination shall be
final, binding and conclusive (absent manifest error).



          “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of Holdings that
such financial statements fairly present, in all material respects, the financial condition of
Holdings and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.



          “Financial Plan” as defined in Section 5.1(i).



          “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.



10









 





          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.



          “Fiscal Year” means the fiscal year of Holdings and its Subsidiaries ending on December 31st
of each calendar year.



          “Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.



          “Foreign Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.



          “Funding Default” as defined in Section 2.22.



          “Funding Guarantors” as defined in Section 7.2.



          “Funding Notice” means (a) with respect to Revolving Loans and Swing Line Loans, a notice
substantially in the form of Exhibit A-1 and (b) with respect to Tranche C Term Loans, the
Effective Date Certificate.



          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.



          “GECC” as defined in the preamble hereto.



          “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.



          “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.



          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.



          “Grantor” as defined in the Pledge and Security Agreement.



          “GSCP” as defined in the preamble hereto.



          “Guaranteed Obligations” as defined in Section 7.1.



          “Guarantor” means each of Holdings and its Subsidiaries (other than Company).



          “Guarantor Subsidiary” means each Guarantor other than Holdings, DTN Corporation, DTN, LLC and
DTN Information.



          “Guaranty” means the guaranty of each Guarantor set forth in Section 7.



          “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Materials, and any corrective action or response
action with respect to any of the foregoing.



11









 





          “Hazardous Materials” means any substance, material or waste that is regulated by, or forms
the basis of liability now or hereafter under, any Environmental Laws, including any material or
substance that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous material,”
“hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,”
“contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or other similar term or
phrase under any Environmental Laws, or (b) petroleum or any fraction or by product thereof,
asbestos, polychlorinated biphenyls (PCBs), or any radioactive substance.



          “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty in order to satisfy the requirements of this Agreement or otherwise in the
ordinary course of Holdings’ or any of its Subsidiaries’ businesses.



          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.



          “Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Holdings and its Subsidiaries, for Fiscal Years 2002, 2003 and 2004, consisting of
balance sheets and the related consolidated statements of income, stockholders’ equity and cash
flows for such Fiscal Years, and (ii) the unaudited financial statements of Holdings and its
Subsidiaries, for Fiscal Year 2005, consisting of a balance sheet and the related consolidated
statements of income, stockholders’ equity and cash flows for such Fiscal Year, and in the case of
clauses (i) and (ii), certified by the chief financial officer of Holdings that they fairly
present, in all material respects, the financial condition of Holdings and its Subsidiaries as at
the dates indicated and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year end adjustments.



          “Holdcos” as defined in the preamble hereto.



          “Holdings” as defined in the preamble hereto.



          “Increased-Cost Lenders” as defined in Section 2.23.



          “Indebtedness,” as applied to any Person, means, without duplication, (i) all indebtedness of
such Person for borrowed money; (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes
payable and drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed by such Person for all or any part of the
deferred purchase price of property or services (excluding any such obligations incurred under
ERISA and customer service agreements), which purchase price is (a) due more than nine months from
the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument; (v) all indebtedness secured by any Lien on any property or asset owned or held
by that Person regardless of whether the indebtedness secured thereby shall have been assumed by
that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of
credit issued as to which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse by such Person of
the obligation of another; (viii) any obligation of such Person the primary purpose or intent of
which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the holders thereof will
be protected (in whole or in part) against loss in respect thereof, in each case, to the extent
such obligation is indebtedness on the balance sheet of such Person; (ix) any liability of such
Person for an obligation of another through any agreement (contingent or otherwise) (a) to
purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the case of any agreement
described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is
as described in clause (viii) above, in each case, to the extent such obligation is indebtedness on
the balance sheet of such Person; and (x) all obligations of such Person in respect of any exchange
traded or over the counter derivative transaction, including, without limitation, any Interest Rate



12









 







Agreement and Currency Agreement, whether entered into for hedging or speculative purposes;
provided, in no event shall obligations under any Interest Rate Agreement and any Currency
Agreement be deemed “Indebtedness” for any purpose under Section 6.8; and provided,
further, that Indebtedness shall exclude any obligation under any operating lease (as
determined in accordance with GAAP).



          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
actions, judgments, suits, costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any
kind or nature whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial proceeding commenced
or threatened by any Person, whether or not any such Indemnitee shall be designated as a party or a
potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this
indemnity), whether direct, indirect or consequential and whether based on any federal, state or
foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes,
rules or regulations and Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any
manner relating to or arising out of (i) this Agreement or the other Credit Documents or the
transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit
Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the
Credit Documents (including any sale of collection from, or other realization upon any of the
Collateral or the enforcement of the Guaranty)); (ii) the statements of any Credit Party contained
in the commitment letter delivered by any Lender to Company with respect to the transactions
contemplated by this Agreement; or (iii) any Environmental Claim or any Hazardous Materials
Activity relating to or arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Holdings or any of its Subsidiaries.



          “Indemnitee” as defined in Section 10.3.



          “Installment” as defined in Section 2.12.



          “Intellectual Property” as defined in the Pledge and Security Agreement.



          “Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended, to (ii) Consolidated
Cash Interest Expense for such four-Fiscal Quarter period.



          “Interest Payment Date” means with respect to (i) any Revolving Loan that is a Base Rate Loan
and any Term Loan each April 1, July 1, October 1 and January 1 of each year, commencing on (x)
July 1, 2005, in respect of any Revolving Loan, and (y) July 1, 2007, in respect of any Tranche C
Term Loan, through the final maturity date of such Loan; and (ii) any Revolving Loan that is a
Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, in the case of each Interest Period of longer than three months “Interest Payment
Date” shall also include each date that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.



          “Interest Period” means, with respect to any Eurodollar Rate Loan, each period commencing on a
LIBOR Business Day selected by Company pursuant to the Agreement and ending one, two, three or six
months thereafter, as selected by Company in the applicable Funding Notice or
Conversion/Continuation Notice; provided, that the foregoing provision relating to Interest
Periods is subject to the following:




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



13









 






     (b) any Interest Period that would otherwise extend beyond the date set forth in clause
(ii) of the definition of “Revolving Commitment Termination Date” shall end two (2) LIBOR
Business Days prior to such date;




     (c) any Interest Period that begins on the last LIBOR 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 LIBOR Business Day of a calendar
month; and




     (d) Company shall select Interest Periods so as not to require a payment or prepayment
of any Eurodollar Rate Loan during an Interest Period for such Loan.



          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
any Holdings’ and its Subsidiaries’ operations and not for speculative purposes.



          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.



          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.



          “Investment” means (i) any direct or indirect purchase or other acquisition by any Credit
Party or any Subsidiary of any Credit Party of, or of a beneficial interest in, any of the
Securities of any other Person (other than, with respect to any Credit Party, any other Credit
Party); (ii) any direct or indirect redemption, retirement, purchase or other acquisition for
value, by any Subsidiary of any Credit Party from any Person (other than any Credit Party), of any
Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances
to employees for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by any Credit Party or any
of its Subsidiaries to any other Person (other than any Credit Party), including all indebtedness
and accounts receivable from that other Person that are not current assets or did not arise from
sales to that other Person in the ordinary course of business. The amount of any Investment shall
be the original cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.



          “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.



          “Issuing Bank” means GECC as Issuing Bank hereunder, together with its permitted successors
and assigns in such capacity.



          “Joinder Agreement” means an agreement substantially in the form of Exhibit L.



          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.



          “Landlord Consent and Estoppel” means, with respect to any Leasehold Property, a letter,
certificate or other instrument in writing from the lessor under the related lease, pursuant to
which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold
Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance
acceptable to Collateral Agent in its reasonable discretion, but in any event sufficient for
Collateral Agent to obtain a Title Policy with respect to such Mortgage.



          “Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent
Agreement substantially in the form of Exhibit K attached to the Existing First Lien Credit
Agreement, as it



14









 







has been or, subject to the approval of Collateral Agent, may be amended, supplemented or
otherwise modified from time to time.



          “Lead Arranger” as defined in the preamble hereto.



          “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to time by
Collateral Agent in its reasonable discretion as not being required to be included in the
Collateral.



          “Lender” means each financial institution listed on the signature pages hereto as a Lender,
each Continuing Lender and any other Person that becomes a party hereto pursuant to an Assignment
Agreement or a Joinder Agreement.



          “Lender Consent Letters” means the lender consent letters authorizing the amendment and
restatement of the Existing First Lien Credit Agreement and, in the case of Continuing Lenders,
agreeing to convert all of the Existing Term Loans made by such Lender to Tranche C Term Loans.



          “Lender Counterparty” means each Lender or any Affiliate of a Lender counterparty to a Hedge
Agreement (including any Person who is a Lender (and any Affiliate thereof) as of the Closing Date
or the Effective Date but subsequently, whether before or after entering into a Hedge Agreement,
ceases to be a Lender) including, without limitation, each such Affiliate that enters into a
joinder agreement with Collateral Agent.



          “Letter of Credit” means a commercial or standby letter of credit issued or to be issued by
Issuing Bank pursuant to this Agreement.



          “Letter of Credit Sublimit” means the lesser of (i) $5,000,000 and (ii) the aggregate unused
amount of the Revolving Commitments then in effect.



          “Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for drawing under all
Letters of Credit then outstanding, and (ii) the aggregate amount of all drawings under Letters of
Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of Company.



          “Leverage Ratio” means, the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date.



          “LIBOR Business Day” means a Business Day on which banks in the City of London are generally
open for interbank or foreign exchange transactions.



          “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement, and any
lease in the nature thereof) and any option, trust or other preferential arrangement having the
practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option,
call or similar right of a third party with respect to such Securities.



          “Loan” means a Tranche C Term Loan, a Revolving Loan, a New Term Loan and a Swing Line Loan.



          “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.



          “Material Adverse Effect” means a material adverse effect on and/or material adverse
developments with respect to (i) the business, operations, properties, assets, condition (financial
or otherwise) or prospects of the Credit Parties and their Subsidiaries taken as a whole; (ii) the
ability of any Credit Party to fully and timely perform its Obligations; (iii) the legality,
validity, binding effect or enforceability against a Credit Party of a



15









 







Credit Document to which it is a party; or (iv) the rights, remedies and benefits available
to, or conferred upon, any Agent and any Lender or any Secured Party under any Credit Document.



          “Material Contract” means any contract or other arrangement to which any Credit Party or any
of its Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.



          “Material Real Estate Asset” means (i) (a) any fee-owned Real Estate Asset having a fair
market value in excess of $500,000 as of the date of the acquisition thereof and (b) all Leasehold
Properties other than those with respect to which the aggregate payments under the term of the
lease are less than $200,000 per annum or (ii) any Real Estate Asset that the Requisite Lenders
have reasonably determined is material to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of the Credit Parties and their Subsidiaries taken as a
whole.



          “Maximum Consolidated Capital Expenditures” as defined in Section 6.8(d).



          “Moody’s” means Moody’s Investor Services, Inc.



          “Mortgage” means a Mortgage substantially in the form of Exhibit J attached to the Existing
First Lien Credit Agreement, as it has been or may be amended, supplemented or otherwise modified
from time to time.



          “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.



          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.



          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a comparison of the actual financial performance (as set forth on the income
statement) of Holdings and its Subsidiaries for such month, Fiscal Quarter or Fiscal Year, as
applicable, to the projected financial performance of Holdings and its Subsidiaries for such month,
Fiscal Quarter or Fiscal Year, as applicable, as set forth in the Financial Plan delivered pursuant
to Section 5.1(i), together with an explanation of any material variances.



          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by any Credit Party
or any Subsidiary of any Credit Party from such Asset Sale, minus (ii) any bona fide direct
costs, fees and expenses incurred in connection with such Asset Sale, including (a) income or gains
taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale,
(b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such Asset Sale, (c) a
reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s
indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by any Credit Party or any Subsidiary of any Credit Party in connection with such Asset
Sale and (d) any other taxes payable in connection therewith.



          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by any Credit Party (a) under any casualty insurance policy in respect of a
covered loss thereunder or (b) as a result of the taking of any assets of any Credit Party by any
Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of
any such assets to a purchaser with such power under threat of such a taking, minus (ii)
(a) any actual and reasonable costs fees and expenses incurred by any Credit Party in connection
with the adjustment or settlement of any claims of such Credit Party in respect thereof, and (b)
any bona fide direct costs, fees and expenses incurred in connection with any sale of such assets
as referred to in clause (i)(b) of this definition, including income taxes payable as a result of
any gain recognized in connection therewith.



16









 





          “New Term Loan Commitments” as defined in Section 2.24.



          “New Term Loan Exposure” means, with respect to any Lender, as of any date of determination,
the outstanding principal amount of the New Term Loans of such Lender.



          “New Term Loan Lender” as defined in Section 2.24.



          “New Term Loan Maturity Date” means the date that New Term Loans shall become due and payable
in full hereunder, as specified in the applicable Joinder Agreement, including by acceleration or
otherwise.



          “New Term Loans” as defined in Section 2.24.



          “Non-US Lender” as defined in Section 2.20(c).



          “Non-Controlling Equity Sales” means sales or other dispositions of non-controlling Capital
Stock in iTrade Network, Inc. and SpeedNet Services, LLC.



          “Note” means a Term Loan Note, a Revolving Loan Note or a Swing Line Note.



          “Notice” means a funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.



          “Obligations” means all obligations of every nature of each Credit Party, including
obligations from time to time owed to the Agents (including former Agents), the Lenders or any of
them and Lender Counterparties, under any Credit Document or Hedge Agreement (including, without
limitation, with respect to a Hedge Agreement, obligations owed thereunder to any person who was a
Lender or an Affiliate of a Lender at the time such Hedge Agreement was entered into), whether for
principal, interest (including interest which, but for the filing of a petition in bankruptcy with
respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is
allowed against such Credit Party for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early termination of Hedge
Agreements, fees, expenses, indemnification or otherwise.



          “Obligee Guarantor” as defined in Section 7.7.



          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, the reference to any such
“Organizational Document” shall only be to a document of a type customarily certified by such
governmental official.



          “Participant Register” shall have the meaning assigned such term in Section 10.6(g).



          “PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.



          “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.



          “Permitted Acquisition” means any acquisition by any Credit Party or any of its Subsidiaries,
whether by purchase, merger or otherwise, of all or substantially all of the assets of, all of the
Capital Stock of, or a business line or unit or a division of, any Person; provided,




     (i) immediately prior to, and after giving effect thereto, no Default or Event
of Default shall have occurred and be continuing or would result therefrom;



17









 






     (ii) all transactions in connection therewith shall be consummated, in all
material respects, in accordance with all applicable laws and in conformity with all
applicable Governmental Authorizations;




     (iii) in the case of the acquisition of Capital Stock, all of the Capital Stock
(except for any such Securities in the nature of directors’ qualifying shares
required pursuant to applicable law) acquired or otherwise issued by such Person or
any newly formed Subsidiary of any Credit Party in connection with such acquisition
shall be owned 100% by one or more Credit Parties and/or their Guarantor Subsidiary,
and Company shall have taken, or caused to be taken, as of the date such Person
becomes a Subsidiary of Company, each of the actions set forth in Sections 5.10
and/or 5.11, as applicable;




     (iv) Holdings and its Subsidiaries shall be in compliance with the financial
covenants set forth in Section 6.8 on a pro forma basis after giving effect to such
acquisition as of the last day of the Fiscal Quarter most recently ended, (as
determined in accordance with Section 6.8(e));




     (v) Company shall have delivered to Administrative Agent (A) at least fifteen
(15) days prior to such proposed acquisition, (i) a Compliance Certificate
evidencing compliance with Section 6.8 as required under clause (iv) above and (ii)
all other relevant financial information with respect to such acquired assets,
including, without limitation, the aggregate consideration for such acquisition and
any other information required to demonstrate compliance with Section 6.8 and (B)
promptly upon request by Administrative Agent, (i) a copy of the purchase agreement
related to the proposed Permitted Acquisition (and any related documents reasonably
requested by Administrative Agent) and (ii) quarterly and annual financial
statements of the Person whose Capital Stock or assets are being acquired for the
twelve month (12) month period immediately prior to such proposed Permitted
Acquisition, including any audited financial statements that are available; and




     (vi) any Person or assets or division as acquired in accordance herewith (y)
shall be in similar business or lines of business in which any Credit Party or any
of their Subsidiaries are engaged as of the Effective Date and (z) shall have
generated positive cash flow, on a pro forma basis taking into consideration any
cost savings with respect to such acquisition, for the four-quarter period most
recently ended prior to the date of such acquisition.



          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.



          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.



          “Pledge and Security Agreement” means the First Lien Pledge and Security Agreement executed by
Company and each Guarantor substantially in the form of Exhibit I attached to the Existing First
Lien Credit Agreement, as it has been or may be amended, supplemented or otherwise modified from
time to time.



          “Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to Company, Administrative Agent and each Lender.



          “Projections” as defined in Section 4.8.



          “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Tranche C Term Loan of any Lender, the percentage obtained by dividing (a) the
Tranche C Term Loan



18









 







Exposure of that Lender by (b) the aggregate Tranche C Term Loan Exposure of all Lenders; (ii)
with respect to all payments, computations and other matters relating to the Revolving Commitment
or Revolving Loans of any Lender or any Letters of Credit issued or participations purchased
therein by any Lender or any participations in any Swing Line Loans purchased by any Lender, the
percentage obtained by dividing (a) the Revolving Exposure of that Lender by (b) the aggregate
Revolving Exposure of all Lenders; and (iii) with respect to all payments, computations and other
matters relating to the New Term Loan Commitment or New Term Loans, the percentage obtained by
dividing (a) the New Term Loan Exposure of that Lender by (b) the aggregate New Term Loan Exposure
of all New Term Loan Lenders. For all other purposes with respect to each Lender, “Pro Rata Share”
means the percentage obtained by dividing (A) the Tranche C Term Loan Exposure, the Revolving
Exposure and the New Term Loan Exposure of that Lender, by (B) an amount equal to the sum of the
aggregate Tranche C Term Loan Exposure, the aggregate Revolving Exposure and New Term Loan exposure
of all Lenders.



          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.



          “Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such
Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected
real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed
and acknowledged by such holder, in each case in form sufficient to give such constructive notice
upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.



          “Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record
Document has been recorded in all places necessary or desirable, in Collateral Agent’s reasonable
judgment, to give constructive notice of such Leasehold Property to third-party purchasers and
encumbrancers of the affected real property.



          “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).



          “Register” as defined in Section 2.7(b).



          “Registered Loan” shall have the meaning assigned such term in Section 2.7(b).



          “Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.



          “Regulation FD” means Regulation FD as promulgated by the US Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.



          “Reimbursement Date” as defined in Section 2.4(d).



          “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and similar extension of credit and that is
managed or advised by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers, advises or manages a Lender.



          “Related Lender Assignment” means an assignment of all or any portion of a Loan or Commitment
of a Lender to an Affiliate of such Lender or Related Fund of such Lender.



          “Related Lender Register” as defined in Section 2.7(b).



          “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.



19









 





          “Replacement Lender” as defined in Section 2.23.



          “Requisite Lenders” means one or more Lenders having or holding Tranche C Term Loan Exposure,
New Term Loan Exposure and/or Revolving Exposure and representing more than 50% of the sum of (i)
the aggregate Tranche C Term Loan Exposure of all Lenders, (ii) the aggregate Revolving Exposure of
all Lenders and (iii) the aggregate New Term Loan Exposure of all Lenders.



          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of any Credit Party or any Subsidiary of a Credit
Party now or hereafter outstanding, except a dividend payable solely in shares of stock to the
holders of that class; (ii) any redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares of any class of stock of any
Credit Party or any Subsidiary of a Credit Party now or hereafter outstanding; (iii) any payment
made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to
acquire shares of any class of stock of any Credit Party or any Subsidiary of a Credit Party now or
hereafter outstanding; and (iv) management or similar fees payable to any member of Holdings other
than customary board fees paid to managers or directors.



          “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, as of the Effective Date is the amount set forth by
such Lender’s name on Appendix A-2 attached to the Existing First Lien Credit Agreement, as it has
been or may be amended, supplemented or otherwise modified from time to time, or in the applicable
Assignment Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms
and conditions hereof. The aggregate amount of the Revolving Commitments as of the Effective Date
is $25,000,000.



          “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.



          “Revolving Commitment Termination Date” means the earliest to occur of (i) March 10, 2011,
such date being the fifth anniversary of the Closing Date, (ii) the date the Revolving Commitments
are permanently reduced to zero pursuant to Section 2.13(b) or 2.14, and (iii) the date of the
termination of the Revolving Commitments pursuant to Section 8.1.



          “Revolving Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of
any participations by Lenders in such Letters of Credit), (c) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing
under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and
(e) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line
Loans.



          “Revolving Loan” means a Loan made by a Lender to Company pursuant to Section 2.2(a).



          “Revolving Loan Note” means a promissory note in the form of Exhibit B-2, as it may be
amended, supplemented or otherwise modified from time to time.



          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Corporation.



          “Secured Parties” has the meaning assigned to that term in the Pledge and Security Agreement.



          “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes,



20









 







or other evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as “securities” or any certificates of
interest, shares or participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.



          “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.



          “Senior Leverage Ratio” means, the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Senior Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal
Quarter period ending on such date.



          “Settlement Confirmation” as defined in Section 10.6(b).



          “Settlement Service” as defined in Section 10.6(d).



          “Solvency Certificate” means a Solvency Certificate of the chief financial officer of Holdings
substantially in the form of Exhibit G-2.



          “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital
is not unreasonably small in relation to its business as contemplated on the Effective Date and
reflected in the Projections or with respect to any transaction contemplated or undertaken after
the Effective Date; and (c) such Person has not incurred and does not intend to incur, or believe
(nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts
as they become due (whether at maturity or otherwise); and (ii) such Person is “solvent” within the
meaning given that term and similar terms under the Bankruptcy Code and applicable laws relating to
fraudulent transfers and conveyances in the jurisdiction of organization of such Person and the
state in which such Person’s chief executive office is located. For purposes of this definition,
the amount of any contingent liability at any time shall be computed as the amount that, in light
of all of the facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability (irrespective of whether such
contingent liabilities meet the criteria for accrual under Statement of Financial Accounting
Standard No. 5).



          “Subject Transaction” as defined in Section 6.8(e).



          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding; provided,
further, that, with respect to Holdings or any other Credit Party, any reference to
“Subsidiary” or “Subsidiaries” (other than references in Section 5.1(a), (b), (c), (e) and (i) and
with respect to financial statements of Holdings) shall exclude DTN Leasing.



          “Swing Line Lender” means GECC in its capacity as Swing Line Lender hereunder, together with
its permitted successors and assigns in such capacity.



          “Swing Line Loan” means a Loan made by Swing Line Lender to Company pursuant to Section 2.3.



          “Swing Line Note” means a promissory note in the form of Exhibit B-3, as it may be amended,
supplemented or otherwise modified from time to time.



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          “Swing Line Sublimit” means the lesser of (i) $5,000,000, and (ii) the aggregate unused amount
of Revolving Commitments then in effect.



          “Syndication Agent” as defined in the preamble hereto.



          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided, “Tax on the net income” of a
Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person
is organized or in which that Person’s applicable principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net income, profits or
gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of
a Lender, its applicable lending office).



          “Term Loan” means a Tranche C Term Loan or a New Term Loan.



          “Term Loan Commitment” means the Tranche C Term Loan Commitment or the New Term Loan
Commitment of a Lender, and “Term Loan Commitments” means such commitments of all Lenders.



          “Term Loan Maturity Date” means the Tranche C Term Loan Maturity Date and the New Term Loan
Maturity Date.



          “Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended,
supplemented or otherwise modified from time to time.



          “Terminated Lender” as defined in Section 2.23.



          “Title Policy” as defined in Section 3.1(i) of the Existing First Lien Credit Agreement.



          “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.



          “Tranche C Term Loan” means a Tranche C Term Loan made by a Lender to Company pursuant to
Section 2.1(a).



          “Tranche C Term Loan Commitment” means the commitment of a Lender to make or otherwise fund a
Tranche C Term Loan and “Tranche C Term Loan Commitments” means such commitments of all Lenders in
the aggregate. The amount of each Lender’s Tranche C Term Loan Commitment, if any, is set forth on
Appendix A-1, in its Lender Consent Letter with respect to a Continuing Lender or in the applicable
Assignment Agreement, subject to any adjustment or reduction pursuant to the terms and conditions
hereof. The aggregate amount of the Tranche C Term Loan Commitments as of the Effective Date is
$242,000,000.



          “Tranche C Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Tranche C Term Loans of such Lender;
provided, at any time prior to the making of the Tranche C Term Loans, the Tranche C Term
Loan Exposure of any Lender shall be equal to such Lender’s Tranche C Term Loan Commitment.



          “Tranche C Term Loan Maturity Date” means the earlier of (i) March 10, 2013 and (ii) the date
that all Tranche C Term Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.



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          “Transaction Costs” means the fees, costs and expenses payable by Holdings, Company or any of
Company’s Subsidiaries on or before the Effective Date in connection with the transactions
contemplated by the Credit Documents.



          “Type of Loan” means (i) with respect to either Term Loans or Revolving Loans, a Base Rate
Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.



          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.



          “Voluntary Prepayments” means any voluntary prepayments of Consolidated Total Debt (excluding
(i) repayments of Revolving Loans or Swing Line Loans except to the extent the Revolving
Commitments are permanently reduced in connection with such repayments and (ii) the repayment of
Existing Indebtedness on the Effective Date).



     1.2. Accounting Terms. Except as otherwise expressly provided herein, all accounting terms
not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by Holdings to Lenders pursuant
to Section 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation statements provided for in
Section 5.1(e), if applicable). Subject to the foregoing, calculations in connection with the
definitions, covenants and other provisions hereof shall utilize accounting principles and policies
in conformity with those used to prepare the Historical Financial statements.



     1.3. Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including,” when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non-limiting
language (such as “without limitation” or “but not limited to” or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. This Agreement
restates and replaces, in its entirety, the Existing First Lien Credit Agreement; any reference in
any of the other Credit Documents (except as explicitly provided therein) to the Existing First
Lien Credit Agreement (however defined) shall mean this Agreement.



SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1. Term Loans.



          (a) Loan Commitments. Subject to the terms and conditions hereof,




     (i) Each applicable Continuing Lender severally agrees that the Existing Term
Loans made by such Continuing Lender under the Existing First Lien Credit Agreement
shall remain outstanding on an after the Effective Date as “Tranche C Term Loans”
made pursuant to this Agreement in the same pro rata amount of such Continuing
Lender’s Pro Rata Share of the Existing Term Loans and such Existing Term Loans
shall on and after the Effective Date have all of the rights and benefits of Tranche
C Term Loans as set forth in this Agreement and the other Credit Documents.




     (ii) Each Lender having a Tranche C Term Loan Commitment (other than a
Continuing Lender except with respect to any amount of Tranche C Term Loan
Commitment of such Continuing Lender in excess of the amount converted from Existing
Term Loans pursuant to clause (i) above) severally agrees to lend to Company on the
Effective Date, a Tranche C Term Loan in an amount equal to such Lender’s Tranche C
Term Loan Commitment.



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Company may make only one borrowing under the Tranche C Term Loan Commitment which
shall be on the Effective Date. Any amount borrowed under this Section 2.1(a) and
subsequently repaid or prepaid may not be reborrowed. Subject to Sections 2.13(a)
and 2.14, all amounts owed hereunder with respect to the Tranche C Term Loans shall
be paid in full no later than the Tranche C Term Loan Maturity Date, respectively.
Each Lender’s Tranche C Term Loan Commitment shall terminate immediately and without
further action on the Effective Date after giving effect to the funding of such
Lender’s Tranche C Term Loan Commitment on such date.



          (b) Borrowing Mechanics for Tranche C Term Loans.




     (i) Company shall deliver to Administrative Agent a fully executed Effective
Date Certificate on the Effective Date. Promptly upon receipt by Administrative
Agent of such Effective Date Certificate, Administrative Agent shall notify each
Lender of the proposed borrowing.




     (ii) Except as set forth in Section 2.1(a)(i), each Lender shall make its
Tranche C Term Loan, as the case may be, available to Administrative Agent not later
than 12:00 p.m. (New York City time) on the Effective Date, by wire transfer of same
day funds in Dollars, at the Principal office designated by Administrative Agent.
Upon satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of the Tranche C Term Loans available
to Company on the Effective Date by causing an amount of same day funds in Dollars
equal to the proceeds of all such Loans received by Administrative Agent from
Lenders to be credited to the account of Company at the Principal Office designated
by Administrative Agent or to such other account as may be designated in writing to
Administrative Agent by Company.



     2.2. Revolving Loans.




     (a) Revolving Commitments. During the Revolving Commitment Period, subject to
the terms and conditions hereof, each Lender severally agrees to make Revolving Loans to
Company in an aggregate amount up to but not exceeding such Lender’s Revolving Commitment;
provided, that after giving effect to the making of any Revolving Loans in no event
shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then
in effect. Amounts borrowed pursuant to this Section 2.2(a) may be repaid and reborrowed
during the Revolving Commitment Period. Each Lender’s Revolving Commitment shall expire on
the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed
hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in
full no later than such date. Any Revolving Loan outstanding under the Existing First Lien
Credit Agreement on the Effective Date shall continue to be outstanding and be deemed to be
Revolving Loans made hereunder subject the terms and conditions hereof.




     (b) Borrowing Mechanics for Revolving Loans.




     (i) Except pursuant to 2.4(d), Revolving Loans that are Base Rate Loans shall
be made in an aggregate minimum amount of $500,000 and integral multiples of
$100,000 in excess of that amount, and Revolving Loans that are Eurodollar Rate
Loans shall be in an aggregate minimum amount of $1,000,000 and integral multiples
of $250,000 in excess of that amount.




     (ii) Whenever Company desires that Lenders make Revolving Loans, Company shall
deliver to Administrative Agent a fully executed and delivered Funding Notice no
later than 10:00 a.m. (New York City time) at least three Business Days in advance
of the proposed Credit Date in the case of a Eurodollar Rate Loan, and at least one
Business Day in advance of the proposed Credit Date in the case of a Revolving Loan
that is a Base Rate Loan. Except as otherwise provided herein, a Funding Notice for
a Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable on and after
the related Interest Rate Determination Date, and Company shall be bound to make a
borrowing in accordance therewith.



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     (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans,
together with the amount of each Lender’s Pro Rata Share thereof, if any, together
with the applicable interest rate, shall be provided by Administrative Agent to each
applicable Lender by telefacsimile with reasonable promptness, but (provided
Administrative Agent shall have received such notice by 10:00 a.m. (New York City
time)) not later than 2:00 p.m. (New York City time) on the same day as
Administrative Agent’s receipt of such Notice from Company.




     (iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at the
Principal Office designated by Administrative Agent. Except as provided herein,
upon satisfaction or waiver of the conditions precedent specified herein,
Administrative Agent shall make the proceeds of such Revolving Loans available to
Company on the applicable Credit Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Revolving Loans received by Administrative
Agent from Lenders to be credited to the account of Company at the Principal Office
designated by Administrative Agent or such other account as may be designated in
writing to Administrative Agent by Company.



     2.3. Swing Line Loans.




     (a) Swing Line Loans Commitments. During the Revolving Commitment Period,
subject to the terms and conditions hereof, Swing Line Lender hereby agrees to make Swing
Line Loans to Company in the aggregate amount up to but not exceeding the Swing Line
Sublimit; provided, that after giving effect to the making of any Swing Line Loan,
in no event shall the Total Utilization of Revolving Commitments exceed the Revolving
Commitments then in effect. Amounts borrowed pursuant to this Section 2.3 may be repaid and
reborrowed during the Revolving Commitment Period. Swing Line Lender’s Revolving Commitment
shall expire on the Revolving Commitment Termination Date and all Swing Line Loans and all
other amounts owed hereunder with respect to the Swing Line Loans and the Revolving
Commitments shall be paid in full no later than such date.




     (b) Borrowing Mechanics for Swing Line Loans.




     (i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000
and integral multiples of $100,000 in excess of that amount.




     (ii) Whenever Company desires that Swing Line Lender make a Swing Line Loan,
Company shall deliver to Administrative Agent and Swing Line Lender a Funding Notice
no later than 12:00 p.m. (New York City time) on the proposed Credit Date.




     (iii) Swing Line Lender shall make the amount of its Swing Line Loan available
to Administrative Agent not later than 2:00 p.m.(New York City time) on the
applicable Credit Date by wire transfer of same day funds in Dollars, at
Administrative Agent’s Principal Office. Except as provided herein, upon
satisfaction or waiver of the conditions precedent specified herein, Administrative
Agent shall make the proceeds of such Swing Line Loans available to Company on the
applicable Credit Date by causing an amount of same day funds in Dollars equal to
the proceeds of all such Swing Line Loans received by Administrative Agent from
Swing Line Lender to be credited to the account of Company at Administrative Agent’s
Principal Office, or to such other account as may be designated in writing to
Administrative Agent by Company.




     (iv) With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to Section 2.13, Swing Line Lender may at any time in
its sole and absolute discretion, deliver to Administrative Agent (with a copy to
Company), no later than 11:00 a.m. (New York City time) at least one Business Day in
advance of the proposed Credit Date, a notice (which shall be deemed to be a Funding
Notice given by Company) requesting that each Lender holding a Revolving Commitment
make Revolving Loans that are Base Rate Loans to Company on such Credit Date in an
amount equal to the amount of such Swing Line Loans (the “Refunded



25









 







Swing Line Loans”) outstanding on the date such notice is given which Swing
Line Lender requests Lenders to prepay. Anything contained in this Agreement to the
contrary notwithstanding, (1) the proceeds of such Revolving Loans made by the
Lenders other than Swing Line Lender shall be immediately delivered by
Administrative Agent to Swing Line Lender (and not to Company) and applied to repay
a corresponding portion of the Refunded Swing Line Loans and (2) on the day such
Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing
Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by
Swing Line Lender to Company, and such portion of the Swing Line Loans deemed to be
so paid shall no longer be outstanding as Swing Line Loans and shall no longer be
due under the Swing Line Note of Swing Line Lender but shall instead constitute part
of Swing Line Lender’s outstanding Revolving Loans to Company and shall be due under
the Revolving Loan Note issued by Company to Swing Line Lender. Company hereby
authorizes Administrative Agent and Swing Line Lender to charge Company’s accounts
with Administrative Agent and Swing Line Lender (up to the amount available in each
such account) in order to immediately pay Swing Line Lender the amount of the
Refunded Swing Line Loans to the extent of the proceeds of such Revolving Loans made
by Lenders, including the Revolving Loans deemed to be made by Swing Line Lender,
are not sufficient to repay in full the Refunded Swing Line Loans. If any portion
of any such amount paid (or deemed to be paid) to Swing Line Lender should be
recovered by or on behalf of Company from Swing Line Lender in bankruptcy, by
assignment for the benefit of creditors or otherwise, the loss of the amount so
recovered shall be ratably shared among all Lenders in the manner contemplated by
Section 2.17.




     (v) If for any reason Revolving Loans are not made pursuant to Section
2.3(b)(iv) in an amount sufficient to repay any amounts owed to Swing Line Lender in
respect of any outstanding Swing Line Loans on or before the third Business Day
after demand for payment thereof by Swing Line Lender, each Lender holding a
Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans, and in an amount equal to its
Pro Rata Share of the applicable unpaid amount together with accrued interest
thereon. Upon one Business Day’s notice from Swing Line Lender, each Lender holding
a Revolving Commitment shall deliver to Swing Line Lender an amount equal to its
respective participation in the applicable unpaid amount in same day funds at the
Principal Office of Swing Line Lender. In order to evidence such participation each
Lender holding a Revolving Commitment agrees to enter into a participation agreement
at the request of Swing Line Lender in form and substance reasonably satisfactory to
Swing Line Lender. In the event any Lender holding a Revolving Commitment fails to
make available to Swing Line Lender the amount of such Lender’s participation as
provided in this paragraph, Swing Line Lender shall be entitled to recover such
amount on demand from such Lender together with interest thereon for three Business
Days at the rate customarily used by Swing Line Lender for the correction of errors
among banks and thereafter at the Base Rate, as applicable.




     (vi) Notwithstanding anything contained herein to the contrary, (1) each
Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded
Swing Line Loans pursuant to the second preceding paragraph and each Lender’s
obligation to purchase a participation in any unpaid Swing Line Loans pursuant to
the immediately preceding paragraph shall be absolute and unconditional and shall
not be affected by any circumstance, including without limitation (A) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have against
Swing Line Lender, any Credit Party or any other Person for any reason whatsoever;
(B) the occurrence or continuation of a Default or Event of Default; (C) any adverse
change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any
other Credit Document by any party thereto; or (E) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing;
provided that such obligations of each Lender are subject to the condition
that Swing Line Lender believed in good faith that all conditions under Section 3.3
to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line
Loans, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing
Line Loans were made, or the satisfaction of any such condition not satisfied had
been waived by the Requisite Lenders prior




26











 






to or at the time such Refunded Swing Line Loans or other unpaid Swing Line
Loans were made; and (2) Swing Line Lender shall not be obligated to make any Swing
Line Loans (A) if it has elected not to do so after the occurrence and during the
continuation of a Default or Event of Default or (B) at a time when a Funding
Default exists unless Swing Line Lender has entered into arrangements satisfactory
to it and Company to eliminate Swing Line Lender’s risk with respect to the
Defaulting Lender’s participation in such Swing Ling Loan, including by cash
collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing
Line Loans.



     2.4. Issuance of Letters of Credit and Purchase of Participations Therein.




     (a) Letters of Credit. During the Revolving Commitment Period, subject to the
terms and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account
of Company in the aggregate amount up to but not exceeding the Letter of Credit Sublimit;
provided, (i) each Letter of Credit shall be denominated in Dollars; (ii) the stated
amount of each Letter of Credit shall not be less than $50,000 or such lesser amount as is
acceptable to Issuing Bank; (iii) after giving effect to such issuance, in no event shall
the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in
effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit
Usage exceed the Letter of Credit Sublimit then in effect; (v) in no event shall any standby
Letter of Credit have an expiration date later than the earlier of (1) the Revolving
Commitment Termination Date and (2) the date which is one year from the date of issuance of
such standby Letter of Credit; and (vi) in no event shall any commercial Letter of Credit
(x) have an expiration date later than the earlier of (1) the Revolving Loan Commitment
Termination Date and (2) the date which is 180 days from the date of issuance of such
commercial Letter of Credit or (b) be issued if such commercial Letter of Credit is
otherwise unacceptable to Issuing Bank in its reasonable discretion. Subject to the
foregoing, Issuing Bank may agree that a standby Letter of Credit will automatically be
extended for one or more successive periods not to exceed one year each, unless Issuing Bank
elects not to extend for any such additional period; provided, Issuing Bank shall
not extend any such Letter of Credit if it has received written notice that an Event of
Default has occurred and is continuing at the time Issuing Bank must elect to allow such
extension; provided, further, in the event a Funding Default exists, Issuing
Bank shall not be required to issue any Letter of Credit unless Issuing Bank has entered
into arrangements satisfactory to it and Company to eliminate Issuing Bank’s risk with
respect to the participation in Letters of Credit of the Defaulting Lender, including by
cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.
Each letter of credit issued pursuant to the Existing Credit Agreement and outstanding on
the Effective Date shall continue to be outstanding and shall be deemed to be Letters of
Credit hereunder, subject to the terms and conditions hereof.




     (b) Notice of Issuance. Whenever Company desires the issuance of a Letter of
Credit, it shall deliver to Administrative Agent an Issuance Notice no later than 12:00 p.m.
(New York City time) at least three Business Days (in the case of standby letters of credit)
or five Business Days (in the case of commercial letters of credit), or in each case such
shorter period as may be agreed to by Issuing Bank in any particular instance, in advance of
the proposed date of issuance. Upon satisfaction or waiver of the conditions set forth in
Section 3.3, Issuing Bank shall issue the requested Letter of Credit only in accordance with
Issuing Bank’s standard operating procedures. Upon the issuance of any Letter of Credit or
amendment or modification to a Letter of Credit, Issuing Bank shall promptly notify each
Lender with a Revolving Commitment of such issuance, which notice shall be accompanied by a
copy of such Letter of Credit or amendment or modification to a Letter of Credit and the
amount of such Lender’s respective participation in such Letter of Credit pursuant to
Section 2.4(e).




     (c) Responsibility of Issuing Bank With Respect to Requests for Drawings and
Payments. In determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, Issuing Bank shall be responsible only to examine the documents
delivered under such Letter of Credit with reasonable care so as to ascertain whether they
appear on their face to be in accordance with the terms and conditions of such Letter of
Credit. As between Company and Issuing Bank, Company assumes all risks of the acts and
omissions of, or misuse of the Letters of Credit issued by Issuing Bank, by the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of the
foregoing, Issuing Bank shall not be responsible for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in connection
with the application for and issuance of any such Letter of



27









 







Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign any such 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; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order to draw upon
such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they
be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of
any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or
(viii) any consequences arising from causes beyond the control of Issuing Bank, including
any Governmental Acts; none of the above shall affect or impair, or prevent the vesting of,
any of Issuing Bank’s rights or powers hereunder. Without limiting the foregoing and in
furtherance thereof, any action taken or omitted by Issuing Bank under or in connection with
the Letters of Credit or any documents and certificates delivered thereunder, if taken or
omitted in good faith, shall not give rise to any liability on the part of Issuing Bank to
Company. Notwithstanding anything to the contrary contained in this Section 2.4(c), Company
shall retain any and all rights it may have against Issuing Bank for any liability to the
extent arising out of the gross negligence or willful misconduct of Issuing Bank.




     (d) Reimbursement by Company of Amounts Drawn or Paid Under Letters of Credit.
In the event Issuing Bank has determined to honor a drawing under a Letter of Credit, it
shall immediately notify Company and Administrative Agent, and Company shall reimburse
Issuing Bank on or before the Business Day immediately following the date on which such
drawing is honored (the “Reimbursement Date”) in an amount in Dollars and in same day funds
equal to the amount of such honored drawing; provided, anything contained herein to
the contrary notwithstanding, (i) unless Company shall have notified Administrative Agent
and Issuing Bank prior to 10:00 a.m. (New York City time) on the date such drawing is
honored that Company intends to reimburse Issuing Bank for the amount of such honored
drawing with funds other than the proceeds of Revolving Loans, Company shall be deemed to
have given a timely Funding Notice to Administrative Agent requesting Lenders with Revolving
Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such honored drawing, and (ii) subject to
satisfaction or waiver of the conditions specified in Section 3.3, Lenders with Revolving
Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans
in the amount of such honored drawing, the proceeds of which shall be applied directly by
Administrative Agent to reimburse Issuing Bank for the amount of such honored drawing; and
provided further, if for any reason proceeds of Revolving Loans are not
received by Issuing Bank on the Reimbursement Date in an amount equal to the amount of such
honored drawing, Company shall reimburse Issuing Bank, on demand, in an amount in same day
funds equal to the excess of the amount of such honored drawing over the aggregate amount of
such Revolving Loans, if any, which are so received. Nothing in this Section 2.4(d) shall
be deemed to relieve any Lender with a Revolving Commitment from its obligation to make
Revolving Loans on the terms and conditions set forth herein, and Company shall retain any
and all rights it may have against any such Lender resulting from the failure of such Lender
to make such Revolving Loans under this Section 2.4(d).




     (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon
the issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be
deemed to have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a
participation in such Letter of Credit and any drawings honored thereunder in an amount
equal to such Lender’s Pro Rata Share (with respect to the Revolving Commitments) of the
maximum amount which is or at any time may become available to be drawn thereunder. In the
event that Company shall fail for any reason to reimburse Issuing Bank as provided in
Section 2.4(d), Issuing Bank shall promptly notify each Lender with a Revolving Commitment
of the reimbursed amount of such honored drawing and of such Lender’s respective
participation therein based on such Lender’s Pro Rata Share of the Revolving Commitments.
Each Lender with a Revolving Commitment shall make available to Issuing Bank an amount equal
to its respective participation, in Dollars and in same day funds, at the office of Issuing
Bank specified in such notice, not later than 12:00 p.m. (New York City time) on the first
Business Day (under the laws of the jurisdiction in which such office of Issuing Bank is
located) after the date notified by Issuing Bank. In the event that any Lender



28









 







with a Revolving Commitment fails to make available to Issuing Bank on such Business
Day the amount of such Lender’s participation in such Letter of Credit as provided in this
Section 2.4(e), Issuing Bank shall be entitled to recover such amount on demand from such
Lender together with interest thereon for three Business Days at the rate customarily used
by Issuing Bank for the correction of errors among banks and thereafter at the Base Rate.
Nothing in this Section 2.4(e) shall be deemed to prejudice the right of any Lender with a
Revolving Commitment to recover from Issuing Bank any amounts made available by such Lender
to Issuing Bank pursuant to this Section in the event that it is determined that the payment
with respect to a Letter of Credit in respect of which payment was made by such Lender
constituted gross negligence or willful misconduct on the part of Issuing Bank. In the
event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section
2.4(e) for all or any portion of any drawing honored by Issuing Bank under a Letter of
Credit, such Issuing Bank shall promptly distribute to each Lender which has paid all
amounts payable by it under this Section 2.4(e) with respect to such honored drawing such
Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank from Company
in reimbursement of such honored drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth below its name on
Appendix B or at such other address as such Lender may request.




     (f) Obligations Absolute. The obligation of Company to reimburse Issuing Bank
for drawings honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Lenders pursuant to Section 2.4(d) and the obligations of Lenders under
Section 2.4(e) shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms hereof under all circumstances including any of the following
circumstances: (i) any lack of validity or enforceability of any Letter of Credit; (ii) the
existence of any claim, set-off, defense or other right which Company or any Lender may have
at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons
for whom any such transferee may be acting), Issuing Bank, Lender or any other Person or, in
the case of a Lender, against Company, whether in connection herewith, the transactions
contemplated herein or any unrelated transaction (including any underlying transaction
between Company or one of its Subsidiaries and the beneficiary for which any Letter of
Credit was procured); (iii) any draft or other document presented under any 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; (iv) payment by Issuing Bank under any
Letter of Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit; (v) any adverse change in the
business, operations, properties, assets, condition (financial or otherwise) or prospects of
the Credit Parties taken as a whole; (vi) any breach hereof or any other Credit Document by
any party thereto; (vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or (viii) the fact that an Event of Default or a Default
shall have occurred and be continuing; provided, in each case, that payment by
Issuing Bank under the applicable Letter of Credit shall not have constituted gross
negligence or willful misconduct of Issuing Bank under the circumstances in question.




     (g) Indemnification. Without duplication of any obligation of Company under
Section 10.2 or 10.3, in addition to amounts payable as provided herein, Company hereby
agrees to protect, indemnify, pay and save harmless Issuing Bank from and against any and
all claims, demands, liabilities, damages, losses, costs, charges and expenses (including
reasonable fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which Issuing Bank may incur or be subject to as a consequence, direct or indirect,
of (i) the issuance of any Letter of Credit by Issuing Bank, other than as a result of (1)
the gross negligence or willful misconduct of Issuing Bank or (2) the wrongful dishonor by
Issuing Bank of a proper demand for payment made under any Letter of Credit issued by it, or
(ii) the failure of Issuing Bank to honor a drawing under any such Letter of Credit as a
result of any Governmental Act.



     2.5. Pro Rata Shares; Availability of Funds.




     (a) Pro Rata Shares. All Loans shall be made, and all participations
purchased, by Lenders simultaneously and proportionately to their respective Pro Rata
Shares, it being understood that no Lender shall be responsible for any default by any other
Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a
participation required hereby nor shall any Term Loan Commitment or any Revolving Commitment
of any Lender be increased or decreased as a result of a default by any other



29









 







Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase
a participation required hereby.




     (b) Availability of Funds. Unless Administrative Agent shall have been
notified by any Lender prior to the applicable Credit Date that such Lender does not intend
to make available to Administrative Agent the amount of such Lender’s Loan requested on such
Credit Date, Administrative Agent may assume that such Lender has made such amount available
to Administrative Agent on such Credit Date and Administrative Agent may, in its sole
discretion, but shall not be obligated to, make available to Company a corresponding amount
on such Credit Date; provided, however, if Lender has made any amount
available to Administrative Agent on such Credit Date, Administrative Agent shall make such
amount available to Company on such Credit Date. If such corresponding amount is not in
fact made available to Administrative Agent by such Lender, Administrative Agent shall be
entitled to recover such corresponding amount on demand from such Lender together with
interest thereon, for each day from such Credit Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the correction
of errors among banks for three Business Days and thereafter at the Base Rate. If such
Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify Company and Company shall immediately
pay such corresponding amount to Administrative Agent together with interest thereon, for
each day from such Credit Date until the date such amount is paid to Administrative Agent,
at the rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this
Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its
Tranche C Term Loan Commitments and Revolving Commitments hereunder or to prejudice any
rights that Company may have against any Lender as a result of any default by such Lender
hereunder.



     2.6. Use of Proceeds. The proceeds of the Tranche C Term Loans made on the Effective Date
shall be applied by Company to repay or convert, as applicable, the Existing Term Loans and all
amounts outstanding under the Existing Second Lien Credit Agreement and to pay all fees and
expenses associated with such repayment. The proceeds of the Revolving Loans, Swing Line Loans and
Letters of Credit made after the Closing Date shall be applied by Company for working capital,
capital expenditures, and general corporate purposes of Holdings and its Subsidiaries, including
for Permitted Acquisitions; provided, that the Company shall retain a balance of $5,000,000
of any combination of unencumbered cash and availability under the Revolving Commitments as set
forth in Section 6.9. No portion of the proceeds of any Credit Extension shall be used in any
manner that causes or might cause such Credit Extension or the application of such proceeds to
violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other
regulation thereof or to violate the Exchange Act.



     2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes.




     (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal
records an account or accounts evidencing the Obligations of Company to such Lender,
including the amounts of the Loans made by it and each repayment and prepayment in respect
thereof. Any such recordation shall be conclusive and binding on Company, absent manifest
error; provided, that the failure to make any such recordation, or any error in such
recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in
respect of any applicable Loans; and provided further, in the event of any
inconsistency between the Register and any Lender’s records, the recordations in the
Register shall govern.




     (b) Register. Administrative Agent (or its agent or sub-agent appointed by it)
shall maintain at the Principal Office a register for the recordation of the names and
addresses of Lenders and the Revolving Commitments and Loans (the “Registered Loans”) of
each Lender from time to time (the “Register”). The Register shall be available for
inspection by Company, the Lead Arranger or any Lender (with respect to any entry relating
to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior
notice. Administrative Agent shall record, or shall cause to be recorded, in the Register
the Revolving Commitments and the Loans in accordance with the provisions of Section 10.6,
and each repayment or prepayment in respect of the principal amount of the Loans, and any
such recordation shall be conclusive and binding on Company and each Lender, absent manifest
error; provided, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in
respect of any Loan. Company hereby designates GECC to



30









 







serve as Company’s agent solely for purposes of maintaining the Register as provided in
this Section 2.7, and Company hereby agrees that, to the extent GECC serves in such
capacity, GECC and its officers, directors, employees, agents, sub-agents and affiliates
shall constitute “Indemnitees.” In the case of any Related Lender Assignment, the Lender
making such Related Lender Assignment, acting for this purpose as a non-fiduciary agent of
the Company, shall maintain a comparable register on behalf of the Administrative Agent (the
“Related Lender Register”), provided, however that Company and Administrative Agent
shall be entitled to rely solely on the Register maintained by Administrative Agent
Administrative Agent shall render to Company a monthly accounting of transactions with
respect to the Loans setting forth the balance of the Loans for the immediately preceding
month. Unless Company notifies Administrative Agent in writing of any objection to any such
accounting (specifically describing the basis for such objection) within thirty (30) days
thereafter, each and every such accounting shall, absent demonstrable error, be deemed
final, binding and conclusive on Company in all respects as to all matters reflected
therein.




     (c) Notes. If so requested by any Lender by written notice to Company (with a
copy to Administrative Agent) at least two Business Days prior to (x) the Closing Date with
respect to such Lender’s Revolving Loan or Swing Line Loan and (y) the Effective Date with
respect to such Lender’s Tranche C Term Loan, or at any time thereafter, Company shall
execute and deliver to such Lender (and/or, if applicable and if so specified in such
notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the
Effective Date (or, if such notice is delivered after the Effective Date, promptly after
Company’s receipt of such notice) a Note or Notes to evidence such Lender’s Tranche C Term
Loan, New Term Loan, Revolving Loan or Swing Line Loan, as the case may be;
provided, however, in connection with any replacement of a lost, stolen or mutilated
Note, such Lender shall provide Company with an affidavit with respect to such lost, stolen
or mutilated Note. Each Continuing Lender who has a note evidencing its Existing Term Loan
shall promptly deliver to Company such note in exchange for a Term Loan Note evidencing its
Tranche C Term Loan.



     2.8. Interest on Loans.




     (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the
unpaid principal amount thereof from the date made through repayment (whether by
acceleration or otherwise) thereof as follows:



          (i) in the case of Revolving Loans:





               (1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin;
or




               (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the
Applicable Margin;



          (ii) in the case of Swing Line Loans, at the Base Rate plus the Applicable
Margin; and




          (iii) in the case of Tranche C Term Loans:





               (1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or




               (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the
Applicable Margin.




     (b) The basis for determining the rate of interest with respect to any Loan (except a
Swing Line Loan which can be made and maintained as Base Rate Loans only), and the Interest
Period with respect to any Eurodollar Rate Loan, shall be selected by Company and notified
to Administrative Agent



31









 







and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation
Notice, as the case may be. If on any day a Loan is outstanding with respect to which a
Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative
Agent in accordance with the terms hereof specifying the applicable basis for determining
the rate of interest, then for that day such Loan shall be a Base Rate Loan. The Base Rate,
if applicable, and the Adjusted Eurodollar Rate for the Tranche C Term Loans made pursuant
to Section 2.1(a)(i) on the Effective Date shall have the same and corresponding Interest
Periods as the Existing Term Loans such that no breakage under Section 2.18(c) shall occur.
The Base Rate, if applicable, and the Adjusted Eurodollar Rate for the Tranche C Term Loans
made pursuant to Section 2.1(a)(ii) on the Effective Date shall have the Interest Periods
selected by Company in the Effective Date Certificate. Each Tranche C Term Loan Lender
(that is a Continuing Lender having a Tranche C Term Loan Commitment) shall be allocated its
Pro Rata share of the Tranche C Term Loans set at the corresponding Base Rate or the
Adjusted Eurodollar Rate, as applicable, and Interest Periods as the Existing Term Loans.
Each Tranche C Term Loan Lender (that is a new Lender having a Tranche C Term Loan
Commitment) shall be allocated its Pro Rata share of the Tranche C Term Loans set at the
Base Rate or the Adjusted Eurodollar Rate, as applicable, and Interest Periods as selected
by Company in the Effective Date Certificate. Upon expiration of the applicable Interest
Period for the Tranche C Term Loans made on the Effective Date, each Eurodollar Rate Loan
shall either be converted into a Base Rate Loan or continued as a Eurodollar Rate Loan at
the Company’s option pursuant to Section 2.9 hereof.




     (c) In connection with Eurodollar Rate Loans there shall be no more than four (4)
Interest Periods outstanding at any time. In the event Company fails to specify between a
Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be
automatically converted into a Base Rate Loan on the last day of the then-current Interest
Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then
outstanding) will be made as, a Base Rate Loan). In the event Company fails to specify an
Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or
Conversion/Continuation Notice, Company shall be deemed to have selected an Interest Period
of one month. As soon as practicable after 10:00 a.m. (New York City time) on each Interest
Rate Determination Date, Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest rate
that shall apply to the Eurodollar Rate Loans for which an interest rate is then being
determined for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and each Lender.




     (d) Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of
Base Rate Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in
the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the
actual number of days elapsed in the period during which it accrues. In computing interest
on any Loan, the date of the making of such Loan or the first day of an Interest Period
applicable to such Loan or, with respect to a Tranche C Term Loan, the last Interest Payment
Date with respect to such Tranche C Term Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan
to such Base Rate Loan, as the case may be, shall be included, and the date of payment of
such Loan or the expiration date of an Interest Period applicable to such Loan or, with
respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of
conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be
excluded; provided, if a Loan is repaid on the same day on which it is made, one
day’s interest shall be paid on that Loan.




     (e) Except as otherwise set forth herein, interest on each Loan (i) with respect to
Revolving Loans, shall accrue on a daily basis and shall be payable in arrears on each
Interest Payment Date with respect to interest accrued on and to each such payment date;
(ii) with respect to Tranche C Term Loans, shall accrue on a daily basis on and through the
March 31st, June 30th, September 30th and December 31st most recently ended prior to such
payment date and shall be payable in arrears on each Interest Payment Date; (iii) shall
accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan,
whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iv)
shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans,
including final maturity of the



32









 







Loans; provided, however, with respect to any voluntary prepayment of a Base
Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment
Date.




     (f) Company agrees to pay to Issuing Bank, with respect to drawings honored under any
Letter of Credit, interest on the amount paid by Issuing Bank in respect of each such
honored drawing from the date such drawing is honored to but excluding the date such amount
is reimbursed by or on behalf of Company at a rate equal to (i) for the period from the date
such drawing is honored to but excluding the applicable Reimbursement Date, the rate of
interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate
Loans, and (ii) thereafter, a rate which is 2% per annum in excess of the rate of interest
otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans.




     (g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a
365/366-day year for the actual number of days elapsed in the period during which it
accrues, and shall be payable on demand or, if no demand is made, on the date on which the
related drawing under a Letter of Credit is reimbursed in full. Promptly upon receipt by
Issuing Bank of any payment of interest pursuant to Section 2.8(f), Issuing Bank shall
distribute to each Lender, out of the interest received by Issuing Bank in respect of the
period from the date such drawing is honored to but excluding the date on which Issuing Bank
is reimbursed for the amount of such drawing (including any such reimbursement out of the
proceeds of any Revolving Loans), the amount that such Lender would have been entitled to
receive in respect of the letter of credit fee that would have been payable in respect of
such Letter of Credit for such period if no drawing had been honored under such Letter of
Credit. In the event Issuing Bank shall have been reimbursed by Lenders for all or any
portion of such honored drawing, Issuing Bank shall distribute to each Lender which has paid
all amounts payable by it under Section 2.4(e) with respect to such honored drawing such
Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that portion
of such honored drawing so reimbursed by Lenders for the period from the date on which
Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of
such honored drawing is reimbursed by Company.



     2.9. Conversion/Continuation.




     (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have
occurred and then be continuing, Company shall have the option:




     (i) to convert at any time all or any part of any Term Loan or Revolving Loan
equal to $1,000,000 and integral multiples of $250,000 in excess of that amount from
one Type of Loan to another Type of Loan; provided, a Eurodollar Rate Loan
may only be converted on the expiration of the Interest Period applicable to such
Eurodollar Rate Loan unless Company shall pay all amounts due under Section 2.18 in
connection with any such conversion; or




     (ii) upon the expiration of any Interest Period applicable to any Eurodollar
Rate Loan, to continue all or any portion of such Loan equal to $1,000,000 and
integral multiples of $250,000 in excess of that amount as a Eurodollar Rate Loan.




     (b) Company shall deliver a Conversion/Continuation Notice to Administrative Agent no
later than 10:00 a.m. (New York City time) at least one Business Day in advance of the
proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least
three Business Days in advance of the proposed conversion/continuation date (in the case of
a conversion to, or a continuation of, a Eurodollar Rate Loan). Except as otherwise
provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any
Eurodollar Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound to effect a
conversion or continuation in accordance therewith.



     2.10. Default Interest. Upon the occurrence and during the continuance of an Event of
Default, the principal amount of all Loans outstanding and, to the extent permitted by applicable
law, any interest payments on the Loans or any fees or other amounts owed hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy
Code or other applicable bankruptcy laws) payable on demand at a rate that



33









 







is 2% per annum in excess of the interest rate otherwise payable hereunder with respect to the
applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2% per
annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans);
provided, in the case of Eurodollar Rate Loans, upon the expiration of the Interest Period
in effect at the time any such increase in interest rate is effective such Eurodollar Rate Loans
shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a
rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for Base Rate
Loans. Payment or acceptance of the increased rates of interest provided for in this Section 2.10
is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of
Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any
Lender.



     2.11. Fees.




     (a) Company agrees to pay to Lenders having Revolving Exposure:




     (i) commitment fees equal to (1) the average of the daily difference between
(a) the Revolving Commitments, and (b) the aggregate principal amount of (x) all
outstanding Revolving Loans plus (y) the Letter of Credit Usage, times (2) 0.50% per
annum; and




     (ii) letter of credit fees equal to (1) the Applicable Margin for Revolving
Loans that are Eurodollar Rate Loans, times (2) the average aggregate daily maximum
amount available to be drawn under all such Letters of Credit (regardless of whether
any conditions for drawing could then be met and determined as of the close of
business on any date of determination).


All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.





     (b) Company agrees to pay directly to Issuing Bank, for its own account, the following
fees:




     (i) a fronting fee equal to 0.250%, per annum, times the average aggregate
daily maximum amount available to be drawn under all Letters of Credit (determined
as of the close of business on any date of determination); and




     (ii) such documentary and processing charges for any issuance, amendment,
transfer or payment of a Letter of Credit as are in accordance with Issuing Bank’s
standard schedule for such charges and as in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.



     (c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the
basis of a 360-day year and the actual number of days elapsed and shall be payable quarterly
in arrears on April 1, July 1, October 1 and January 1 of each year during the Revolving
Commitment Period, commencing on the first such date to occur after the Closing Date, and on
the Revolving Commitment Termination Date.



     (d) In addition to any of the foregoing fees, Company agrees to pay to Agents such
other fees in the amounts and at the times separately agreed upon.



     2.12. Scheduled Payments/Commitment Reductions.



     The principal amounts of the Tranche C Term Loans shall be repaid in consecutive quarterly
installments (each, an “Installment”) in the aggregate amounts set forth below on the quarterly
scheduled payment dates set forth below, commencing July 1, 2007:



	 	 	 	 	 
	[Fiscal Quarter]	 	Tranche C Term Loan Installments
	July 1, 2007
	 	$	605,000	 
	October 1, 2007
	 	$	605,000	 






34









 






	 	 	 	 	 
	[Fiscal Quarter]	 	Tranche C Term Loan Installments
	January 1, 2008
	 	$	605,000	 
	April 1, 2008
	 	$	605,000	 
	July 1, 2008
	 	$	605,000	 
	October 1, 2008
	 	$	605,000	 
	January 1, 2009
	 	$	605,000	 
	April 1, 2009
	 	$	605,000	 
	July 1, 2009
	 	$	605,000	 
	October 1, 2009
	 	$	605,000	 
	January 1, 2010
	 	$	605,000	 
	April 1, 2010
	 	$	605,000	 
	July 1, 2010
	 	$	605,000	 
	October 1, 2010
	 	$	605,000	 
	January 1, 2011
	 	$	605,000	 
	April 1, 2011
	 	$	605,000	 
	July 1, 2011
	 	$	605,000	 
	October 1, 2011
	 	$	605,000	 
	January 1, 2012
	 	$	605,000	 
	April 1, 2012
	 	$	605,000	 
	July 1, 2012
	 	$	605,000	 
	October 1, 2012
	 	$	605,000	 
	January 1, 2013
	 	$	605,000	 
	Tranche C Term Loan Maturity Date
	 	$	228,085,000	 





Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche C Term Loans in accordance with Sections 2.13,
2.14 and 2.15, as applicable; and (y) the Tranche C Term Loans, together with all other amounts
owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Tranche
C Term Loan Maturity Date.




     2.13. Voluntary Prepayments/Commitment Reductions.




     (a) Voluntary Prepayments.




     (i) Any time and from time to time:




          (1) with respect to Base Rate Loans, Company may prepay any such Loans on any
Business Day in whole or in part, in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount;




          (2) with respect to Eurodollar Rate Loans, Company may prepay any such Loans on
any Business Day in whole or in part in an aggregate minimum amount of $1,000,000
and integral multiples of $250,000 in excess of that amount; and




          (3) with respect to Swing Line Loans, Company may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $500,000, and in
integral multiples of $100,000 in excess of that amount.



35









 






     (ii) All such prepayments shall be made:




               (1) upon not less than one Business Day’s prior written or telephonic notice in
the case of Base Rate Loans;




               (2) upon not less than three Business Days’ prior written or telephonic notice
in the case of Eurodollar Rate Loans; and




               (3) upon written or telephonic notice on the date of prepayment, in the case of
Swing Line Loans;


in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or
original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or
telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such
notice, the principal amount of the Loans specified in such notice shall become due and payable on
the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified
in 

Section 2.15(a).





(b) Voluntary Commitment Reductions.




     (i) Company may, upon not less than three Business Days’ prior written or
telephonic notice confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each applicable Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or penalty,
the Revolving Commitments in an amount up to the amount by which the Revolving
Commitments exceed the Total Utilization of Revolving Commitments at the time of
such proposed termination or reduction; provided, any such partial reduction
of the Revolving Commitments shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $250,000 in excess of that amount.




     (ii) Company’s notice to Administrative Agent shall designate the date (which
shall be a Business Day) of such termination or reduction and the amount of any
partial reduction, and such termination or reduction of the Revolving Commitments
shall be effective on the date specified in Company’s notice and shall reduce the
Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof.



     2.14. Mandatory Prepayments/Commitment Reductions.




     (a) Asset Sales. No later than the first Business Day following the date of
receipt by any Credit Party or any Subsidiaries of any Credit Party of any Net Asset Sale
Proceeds, Company shall prepay the Loans as set forth in Section 2.15(b) in an aggregate
amount equal to such Net Asset Sale Proceeds; provided, (i) so long as no Default or
Event of Default shall have occurred and be continuing, and (ii) to the extent that
aggregate Net Asset Sale Proceeds from the Closing Date through the applicable date of
determination do not exceed $500,000 (provided, however, such monetary limitation
shall not apply with respect to proceeds from Non-Controlling Equity Sales), Company shall
have the option, directly or through one or more of its Subsidiaries, to invest Net Asset
Sale Proceeds within one hundred eighty days (or, with respect to proceeds from
Non-Controlling Equity Sales, two hundred seventy days) of receipt thereof in long-term
productive assets of the general type used in the business of the Credit Parties and their
Subsidiaries or Permitted Acquisitions in accordance with Section 6.9; provided
further, pending any such investment all such Net Asset Sale Proceeds shall be
applied to prepay Revolving Loans to the extent outstanding (without a permanent reduction
in Revolving Commitments).




     (b) Insurance/Condemnation Proceeds. No later than the first Business Day
following the date of receipt by any Credit Party, or Administrative Agent as loss payee, of
any Net



36









 




Insurance/Condemnation Proceeds, Company shall prepay the Loans as set forth in Section
2.15(b) in an aggregate amount equal to such Net Insurance/Condemnation Proceeds;
provided, (i) so long as no Default or Event of Default shall have occurred and be
continuing, and (ii) to the extent that aggregate Net Insurance/Condemnation Proceeds does
not exceed $500,000, per Fiscal Year, such Credit Party shall have the option, directly or
through one or more Credit Parties to invest such Net Insurance/Condemnation Proceeds within
one hundred eighty days of receipt thereof in long term productive assets of the general
type used in the business of the Credit Parties and their Subsidiaries, which investment may
include the repair, restoration or replacement of the applicable assets thereof;
provided further, pending any such investment all such Net
Insurance/Condemnation Proceeds, as the case may be, shall be applied to prepay Revolving
Loans to the extent outstanding (without a permanent reduction in Revolving Commitments).


     (c) Issuance of Equity Securities. On the date of receipt by any Credit Party
or any Subsidiary of any Credit Party of any Cash proceeds from a capital contribution to,
or the issuance of any Capital Stock of, any Credit Party or any Subsidiary of any Credit
Party (other than (i) pursuant to any employee stock or stock option compensation plan, (ii)
issuances for which the proceeds are used to consummate one or more Permitted Acquisitions
or (iii) issuances of equity to the current members of Holdings), Company shall prepay the
Loans as set forth in Section 2.15(b) in an aggregate amount equal to 75% of such proceeds,
net of underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses; provided, during
any period in which the Leverage Ratio (determined for any such period by reference to the
most recent Compliance Certificate delivered pursuant to Section 5.1(d) calculating the
Leverage Ratio) shall be less than 3.00:1.00, Company shall only be required to make the
prepayments and/or reductions otherwise required hereby in an amount equal to 50% of such
net proceeds.


     (d) Issuance of Debt. On the date of receipt by any Credit Party or any
Subsidiary of any Credit Party of any Cash proceeds from the incurrence of any Indebtedness
of any Credit Party or any Subsidiary of any Credit Party (other than with respect to any
Indebtedness permitted to be incurred pursuant to Section 6.1), Company shall prepay the
Loans as set forth in Section 2.15(b) in an aggregate amount equal to 100% of such proceeds,
net of underwriting discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses.


     (e) Consolidated Excess Cash Flow. In the event that there shall be
Consolidated Excess Cash Flow for any Fiscal Year (commencing in the second Fiscal Quarter
of the Fiscal Year ending 2006, and thereafter, for each full Fiscal Year), Company shall,
no later than ninety days after the end of such Fiscal Year, prepay the Loans as set forth
in Section 2.15(b) in an aggregate amount equal to the excess of (A) 75% of such
Consolidated Excess Cash Flow over (B) 100% of Voluntary Prepayments; provided,
during any Fiscal Year in which the Leverage Ratio (determined for such Fiscal Year by
reference to the Compliance Certificate delivered pursuant to Section 5.1(d) calculating the
Leverage Ratio as of the last day of such Fiscal Year) shall be 3.00:1.00 or less, Company
shall only be required to make the prepayments otherwise required hereby in an amount equal
to the excess of (A) 50% of such Consolidated Excess Cash Flow over (B) 100% of Voluntary
Prepayments.


     (f) Revolving Loans and Swing Loans. Company shall from time to time prepay
first, the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that
the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving
Commitments then in effect.


     (g) Prepayment Certificate. Concurrently with any prepayment of the Loans,
Company shall deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the calculation of the amount of the applicable net proceeds or Consolidated
Excess Cash Flow, as the case may be. In the event that Company shall subsequently
determine that the actual amount received exceeded the amount set forth in such certificate,
Company shall promptly make an additional prepayment of the Loans in an amount equal to such
excess, and Company shall concurrently therewith deliver to Administrative Agent a
certificate of an Authorized Officer demonstrating the derivation of such excess.


     (h) Effective Date. Notwithstanding the foregoing, upon its receipt of the
proceeds of the Tranche C Term Loans, Company shall apply a portion of such proceeds
sufficient to (i) prepay or convert,


37








 







as applicable, in full the Existing Term Loans, (ii) pay all accrued and unpaid
interest and fees, if any, on all Existing Term Loans held by Existing First Lien Lenders
that are not Continuing Lenders, (iii) pay to such Existing First Lien Lender that is not a
Continuing Lender all other amounts then due and owing as a result of the prepayment of such
Lender’s Existing Term Loans, (iv) pay all other Obligations then due and owing to the
Existing First Lien Lenders that are not Continuing Lenders, in their capacity as such,
under the Existing First Lien Credit Agreement and (vi) pay in full all other Existing
Indebtedness, including accrued and unpaid interest.



     2.15. Application of Prepayments/Reductions.




     (a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of
any Loan pursuant to Section 2.13(a) shall be applied as specified by Company in the
applicable notice of prepayment; provided, in the event Company fails to specify the
Loans to which any such prepayment shall be applied, such prepayment shall be applied as
follows:




               first, to repay outstanding Swing Line Loans to the full extent thereof;




               second, to repay outstanding Revolving Loans to the full extent thereof;
and




                    third, to prepay the Term Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) and further applied on a pro rata
basis to the remaining scheduled Installments of principal of the Tranche C Term
Loans and the New Term Loans.



     (b) Application of Mandatory Prepayments by Type of Loans. Any amount required
to be paid pursuant to Sections 2.14(a) through 2.14(e) shall be applied as follows:




               first, to prepay Term Loans on a pro rata basis (in accordance with the
respective outstanding principal amounts thereof) and further applied on a pro rata
basis to the remaining scheduled Installments of principal of the Tranche C Term
Loans and the New Term Loans;




               second, to prepay the Swing Line Loans to the full extent thereof;




               third, to prepay the Revolving Loans to the full extent thereof;




               fourth, to prepay outstanding reimbursement obligations with respect to Letters
of Credit;




               fifth, to cash collateralize Letters of Credit;




               sixth, to pay any remaining Obligations; and




               seventh, to Company.




     (c) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate
Loans. Considering each Class of Loans being prepaid separately, any prepayment thereof
shall be applied first to Base Rate Loans to the full extent thereof before application to
Eurodollar Rate Loans, in each case in a manner which minimizes the amount of any payments
required to be made by Company pursuant to Section 2.18(c).



38









 





     2.16. General Provisions Regarding Payments.




     (a) All payments by Company of principal, interest, fees and other Obligations shall be
made in Dollars in same day funds, without defense, setoff or counterclaim, free of any
restriction or condition, and delivered to Administrative Agent not later than 12:00 p.m.
(New York City time) on the date due at the Principal Office designated by Administrative
Agent for the account of Lenders; for purposes of computing interest and fees, funds
received by Administrative Agent after that time on such due date shall be deemed to have
been paid by Company on the next succeeding Business Day.




     (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in any event, any
payments in respect of any Loan on a date when interest is due and payable with respect to
such Loan) shall be applied to the payment of interest then due and payable before
application to principal.




     (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly
distribute to each Lender at such address as such Lender shall indicate in writing, such
Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest
due hereunder, together with all other amounts due thereto, including, without limitation,
all fees payable with respect thereto, to the extent received by Administrative Agent.




     (d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation
Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate
Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall
give effect thereto in apportioning payments received thereafter.




     (e) Subject to the provisos set forth in the definition of “Interest Period”, whenever
any payment to be made hereunder with respect to any Loan shall be stated to be due on a day
that is not a Business Day, such payment shall be made on the next succeeding Business Day
and, with respect to Revolving Loans only, such extension of time shall be included in the
computation of the payment of interest hereunder or of the Revolving Commitment fees
hereunder.




     (f) Company hereby authorizes Administrative Agent to charge Company’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of
all principal, interest, fees and expenses due hereunder (subject to sufficient funds being
available in its accounts for that purpose).




     (g) Administrative Agent shall deem any payment by or on behalf of Company hereunder
that is not made in same day funds prior to 12:00 p.m. (New York City time) to be a
non-conforming payment. Any such payment shall not be deemed to have been received by
Administrative Agent until the later of (i) the time such funds become available funds, and
(ii) the applicable next Business Day. Administrative Agent shall give prompt telephonic
notice to Company and each applicable Lender (confirmed in writing) if any payment is
non-conforming. Any non-conforming payment may constitute or become a Default or Event of
Default in accordance with the terms of Section 8.1(a). Interest shall continue to accrue
on any principal as to which a non-conforming payment is made until such funds become
available funds (but in no event less than the period from the date of such payment to the
next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10
from the date such amount was due and payable until the date such amount is paid in full.




     (h) If an Event of Default shall have occurred and is continuing and not otherwise been
waived, and the maturity of the Obligations shall have been accelerated pursuant to Section
8.1, all payments or proceeds received by Agents hereunder in respect of any of the
Obligations, shall be applied in accordance with the application arrangements described in
Section 7.2 of the Pledge and Security Agreement.



39









 





     2.17. Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise
provided in the Collateral Documents with respect to amounts realized from the exercise of rights
with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other
than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through
the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of
Credit, fees and other amounts then due and owing to such Lender hereunder or under the other
Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other
Lender, then the Lender receiving such proportionately greater payment shall (a) notify
Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion
of such payment to purchase participations (which it shall be deemed to have purchased from each
seller of a participation simultaneously upon the receipt by such seller of its portion of such
payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them;
provided, if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of
Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent of such recovery,
but without interest. Company expressly consents to the foregoing arrangement and agrees that any
holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or
counterclaim with respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation held by that holder.



     2.18. Making or Maintaining Eurodollar Rate Loans.




     (a) Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have reasonably determined, on any Interest Rate Determination
Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting
the London interbank market adequate and fair means do not exist for ascertaining the
interest rate applicable to such Loans on the basis provided for in the definition of
Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by
telefacsimile or by telephone confirmed in writing) to Company and each Lender of such
determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans
until such time as Administrative Agent notifies Company and Lenders that the circumstances
giving rise to such notice no longer exist, and (ii) any Funding Notice or
Conversion/Continuation Notice given by Company with respect to the Loans in respect of
which such determination was made shall be deemed to be rescinded by Company.




     (b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that
on any date any Lender shall have reasonably determined (which determination shall be made
only after consultation with Company and Administrative Agent) that the making, maintaining
or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty, governmental rule, regulation,
guideline or order (or would conflict with any such treaty, governmental rule, regulation,
guideline or order not having the force of law even though the failure to comply therewith
would not be unlawful), or (ii) has become impracticable, as a result of contingencies
occurring after the date hereof which materially and adversely affect the London interbank
market or the position of such Lender in that market, then, and in any such event, such
Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile
or by telephone confirmed in writing) to Company and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each other
Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, or to
convert Loans to, Eurodollar Rate Loans shall be suspended until such determination (as
determined by such Lender in its reasonable judgment) is no longer valid or applicable or
such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination
by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Company
pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall
make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a
Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding Eurodollar
Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the
expiration of the Interest



40









 







Period then in effect with respect to the Affected Loans or when required by law, and
(4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such
termination. Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being requested by Company
pursuant to a Funding Notice or a Conversion/Continuation Notice, Company shall have the
option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or
Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile or by
telephone confirmed in writing) to Administrative Agent of such rescission on the date on
which the Affected Lender gives notice of its determination as described above (which notice
of rescission Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this Section 2.18(b) shall affect
the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or
to convert Loans to, Eurodollar Rate Loans in accordance with the terms hereof.




     (c) Compensation for Breakage or Non-Commencement of Interest Periods. Company
shall compensate each Lender, upon written request by such Lender (which request shall set
forth the basis for requesting such amounts), for all reasonable losses, expenses and
liabilities (including any interest paid by such Lender to Lenders of funds borrowed by it
to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by
such Lender in connection with the liquidation or re-employment of such funds but excluding
loss of anticipated profits) which such Lender may sustain: (i) if for any reason (other
than a default by such Lender) a borrowing of any Eurodollar Rate Loan does not occur on a
date specified therefor in a Funding Notice or a telephonic request for borrowing, or a
conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Conversion/Continuation Notice or a telephonic request for conversion or
continuation; (ii) if any prepayment or other principal payment of, or any conversion of,
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest
Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate
Loans is not made on any date specified in a notice of prepayment given by Company.




     (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office
of an Affiliate of such Lender.




     (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of
all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made
as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through
the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to
clause (i) of the definition of Adjusted Eurodollar Rate in an amount equal to the amount of
such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period
and through the transfer of such Eurodollar deposit from an offshore office of such Lender
to a domestic office of such Lender in the United States of America; provided,
however, each Lender may fund each of its Eurodollar Rate Loans in any manner it
sees fit and the foregoing assumptions shall be utilized only for the purposes of
calculating amounts payable under this Section 2.18 and under Section 2.19.



     2.19. Increased Costs; Capital Adequacy.




     (a) Compensation For Increased Costs and Taxes. Subject to the provisions of
Section 2.20 (which shall be controlling with respect to the matters covered thereby), in
the event that any Lender (which term shall include Issuing Bank for purposes of this
Section 2.19(a)) shall reasonably determine that any law, treaty or governmental rule,
regulation or order, or any change therein or in the interpretation, administration or
application thereof (including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority, in each
case that becomes effective after the date hereof, or compliance by such Lender with any
guideline, request or directive issued or made after the date hereof by any central bank or
other governmental or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any additional Tax (other
than any Tax on the overall net income of such Lender) with respect to this Agreement or any
of the other Credit Documents or any of its obligations hereunder or thereunder or any
payments to such Lender (or its applicable lending office) of principal, interest, fees or
any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve
(including any



41









 







marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans by, or other credit
extended by, or any other acquisition of funds by, any office of such Lender (other than any
such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected
in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition (other
than with respect to a Tax matter) on or affecting such Lender (or its applicable lending
office) or its obligations hereunder or the London interbank market; and the result of any
of the foregoing is to increase the cost to such Lender of agreeing to make, making or
maintaining Loans hereunder or to reduce any amount received or receivable by such Lender
(or its applicable lending office) with respect thereto; then, in any such case, Company
shall promptly pay to such Lender, upon receipt of the statement referred to in the next
sentence, such additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its reasonable
discretion shall determine) as may be necessary to compensate such Lender for any such
increased cost or reduction in amounts received or receivable hereunder. Such Lender shall
deliver to Company (with a copy to Administrative Agent) a written statement, setting forth
in reasonable detail the basis for calculating the additional amounts owed to such Lender
under this Section 2.19(a).




     (b) Capital Adequacy Adjustment. In the event that any Lender (which term
shall include Issuing Bank for purposes of this Section 2.19(b)) shall have reasonably
determined that the adoption, effectiveness, phase-in or applicability after the Effective
Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy,
or any change therein or in the interpretation or administration thereof by any Governmental
Authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its applicable lending office) with
any guideline, request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to, such Lender’s
Loans or Revolving Commitments or Letters of Credit, or participations therein or other
obligations hereunder with respect to the Loans or the Letters of Credit to a level below
that which such Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation with regard to
capital adequacy), then from time to time, within five Business Days after receipt by
Company from such Lender of the statement referred to in the next sentence, Company shall
pay to such Lender such additional amount or amounts as will compensate such Lender or such
controlling corporation on an after-tax basis for such reduction. Such Lender shall deliver
to Company (with a copy to Administrative Agent) a written statement, setting forth in
reasonable detail the basis for calculating the additional amounts owed to Lender under this
Section 2.19(b).



     2.20. Taxes; Withholding, etc.




     (a) Payments to Be Free and Clear. All sums payable by any Credit Party
hereunder and under the other Credit Documents shall (except to the extent required by law)
be paid free and clear of, and without any deduction or withholding on account of, any Tax
(other than a Tax on the net income of any Lender) imposed, levied, collected, withheld or
assessed by or within the United States of America or any political subdivision in or of the
United States of America or any other jurisdiction from or to which a payment is made by or
on behalf of any Credit Party or by any federation or organization of which the United
States of America or any such jurisdiction is a member at the time of payment.




     (b) Withholding of Taxes. If any Credit Party or any other Person is required
by law to make any deduction or withholding on account of any such Tax from any sum paid or
payable by any Credit Party to Administrative Agent or any Lender (which term shall include
Issuing Bank for purposes of this Section 2.20(b)) under any of the Credit Documents: (i)
Company shall notify Administrative Agent of any such requirement or any change in any such
requirement as soon as Company becomes aware of it; (ii) Company shall pay any such Tax
before the date on which penalties attach thereto, such payment to be made (if the liability
to pay is imposed on any Credit Party) for its own account or (if that liability is imposed
on Administrative Agent or such Lender, as the case may be) on behalf of and in the name of



42









 







Administrative Agent or such Lender; (iii) the sum payable by such Credit Party in
respect of which the relevant deduction, withholding or payment is required shall be
increased to the extent necessary to ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such Lender, as the case may be, receives on
the due date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty days after paying any
sum from which it is required by law to make any deduction or withholding, and within thirty
days after the due date of payment of any Tax which it is required by clause (ii) above to
pay, Company shall deliver to Administrative Agent evidence satisfactory to the other
affected parties of such deduction, withholding or payment and of the remittance thereof to
the relevant taxing or other authority; provided, no such additional amount shall be
required to be paid to any Lender under clause (iii) above except to the extent that any
change after the date hereof (in the case of each Lender listed on the signature pages
hereof on the Closing Date) or after the effective date of the Assignment Agreement pursuant
to which such Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is mentioned therein shall result in
an increase in the rate of such deduction, withholding or payment from that in effect at the
date hereof or at the date of such Assignment Agreement, as the case may be, in respect of
payments to such Lender.




     (c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a
United States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue
Code) for U.S. federal income tax purposes (a “Non-US Lender”) shall deliver to
Administrative Agent and Company (or in the case of an assignee pursuant to a Related Lender
Assignment that is not delivered to the Administrative Agent in accordance with Section
10.6(c)(i), to the assigning Lender only, and in the case of a participant, to the Lender
granting the participation only), on or prior to the Effective Date (in the case of each
Lender party hereto on the Effective Date) or on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and at
such other times as may be necessary in the determination of Company or Administrative Agent
(each in the reasonable exercise of its discretion), (i) two original copies of Internal
Revenue Service Form W-8BEN, W-8IMY or W-8ECI (or any successor forms), properly completed
and duly executed by such Lender, and such other documentation required under the Internal
Revenue Code and reasonably requested by Company to establish that such Lender is not
subject to deduction or withholding of United States federal income tax with respect to any
payments to such Lender of principal, interest, fees or other amounts payable under any of
the Credit Documents, or (ii) if such Lender is not a “bank” or other Person described in
Section 881(c)(3) of the Internal Revenue Code and cannot deliver either Internal Revenue
Service Form W-8BEN, W-8IMY or W-BECI pursuant to clause (i) above, a Certificate re
Non-Bank Status together with two original copies of Internal Revenue Service Form W-8BEN
(or any successor form), properly completed and duly executed by such Lender, and such other
documentation required under the Internal Revenue Code and reasonably requested by Company
to establish that such Lender is not subject to deduction or withholding of United States
federal income tax with respect to any payments to such Lender of interest payable under any
of the Credit Documents. Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters pursuant to
this Section 2.20(c) hereby agrees, from time to time after the initial delivery by such
Lender of such forms, certificates or other evidence, whenever a lapse in time or change in
circumstances renders such forms, certificates or other evidence obsolete or inaccurate in
any material respect, that such Lender shall promptly deliver to Administrative Agent and
Company (or in the case of an assignee pursuant to a Related Lender Assignment that is not
delivered to the Administrative Agent in accordance with Section 10.6(c)(i), to the
assigning Lender only, and in the case of a participant, to the Lender granting the
participation only) two new original copies of Internal Revenue Service Form W-8BEN, W-8IMY
or W-8ECI, or a Certificate re Non-Bank Status and two original copies of Internal Revenue
Service Form W-8BEN, W-8IMY or W-8ECI (or any successor form), as the case may be, properly
completed and duly executed by such Lender, and such other documentation required under the
Internal Revenue Code and reasonably requested by Company to confirm or establish that such
Lender is not subject to deduction or withholding of United States federal income tax with
respect to payments to such Lender under the Credit Documents, or notify Administrative
Agent and Company, or the assigning Lender, as applicable, of its inability to deliver any
such forms, certificates or other evidence. Company shall not be required to pay any
additional amount to any Non-US Lender under Section 2.20(b)(iii) if such Lender shall have
failed (I) to deliver the forms, certificates or other evidence referred to in the second
sentence of this Section 2.20(c), or (2) to notify



43









 







Administrative Agent and Company, or the assigning Lender, as applicable, of its
inability to deliver any such forms, certificates or other evidence, as the case may be;
provided, if such Lender shall have satisfied the requirements of the first sentence
of this Section 2.20(c) on the Effective Date or on the date of the Assignment Agreement
pursuant to which it became a Lender, as applicable, nothing in this last sentence of
Section 2.20(c) shall relieve Company of its obligation to pay any additional amounts
pursuant this Section 2.20 in the event that, as a result of any change in any applicable
law, treaty or governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the fact that such
Lender is not subject to withholding as described herein.



     2.21. Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for
purposes of this Section 2.21) agrees that, as promptly as practicable after the officer of such
Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes
aware of the occurrence of an event or the existence of a condition that would cause such Lender to
become an Affected Lender or that would entitle such Lender to receive payments under Section 2.18,
2.19 or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and
any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its
reasonable discretion, the making, issuing, funding or maintaining of such Revolving Commitments,
Loans or Letters of Credit through such other office or in accordance with such other measures, as
the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters
of Credit or the interests of such Lender; provided, such Lender will not be obligated to
utilize such other office pursuant to this Section 2.21 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such other office as
described in clause (i) above. A certificate as to the amount of any such expenses payable by
Company pursuant to this Section 2.21 (setting forth in reasonable detail the basis for requesting
such amount) submitted by such Lender to Company (with a copy to Administrative Agent) shall be
conclusive absent manifest error.



     2.22. Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the
event that any Lender, other than at the direction or request of any regulatory agency or
authority, defaults (a “Defaulting Lender”) in its obligation to fund (a “Funding Default”) any
Revolving Loan which it would otherwise be required to fund pursuant to the terms hereof or its
portion of any unreimbursed payment under Section 2.3(b)(iv) or 2.4(e) (in each case, a “Defaulted
Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting
Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent
permitted by applicable law, until such time as the Default Excess with respect to such Defaulting
Lender shall have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans shall,
if Company so directs at the time of making such voluntary prepayment, be applied to the Revolving
Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the
Revolving Exposure of such Defaulting Lender were zero, and (ii) any mandatory prepayment of the
Revolving Loans shall, if Company so directs at the time of making such mandatory prepayment, be
applied to the Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting
Lender) as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it
being understood and agreed that Company shall be entitled to retain any portion of any mandatory
prepayment of the Revolving Loans that is not paid to such Defaulting Lender solely as a result of
the operation of the provisions of this clause (b); (c) such Defaulting Lender’s Revolving
Commitment and outstanding Revolving Loans and such Defaulting Lender’s Pro Rata Share of the
Letter of Credit Usage shall be excluded for purposes of calculating the Revolving Commitment fee
payable to Lenders in respect of any day during any Default Period with respect to such Defaulting
Lender, and such Defaulting Lender shall not be entitled to receive any Revolving Commitment fee
pursuant to Section 2.11 with respect to such Defaulting Lender’s Revolving Commitment in respect
of any Default Period with respect to such Defaulting Lender; and (d) the Total Utilization of
Revolving Commitments as at any date of determination shall be calculated as if such Defaulting
Lender had funded all Defaulted Loans of such Defaulting Lender. No Revolving Commitment of any
Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in
this Section 2.22, performance by Company of its obligations hereunder and the other Credit
Documents shall not be excused or otherwise modified as a result of any Funding Default or the



44









 







operation of this Section 2.22. The rights and remedies against a Defaulting Lender under
this Section 2.22 are in addition to other rights and remedies which Company may have against such
Defaulting Lender with respect to any Funding Default and which Administrative Agent or any Lender
may have against such Defaulting Lender with respect to any Funding Default.



     2.23. Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give
notice to Company that such Lender is an Affected Lender or that such Lender is entitled to receive
payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect,
and (iii) such Lender shall fail to withdraw such notice within five Business Days after Company’s
request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the
Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender
shall fail to cure the default as a result of which it has become a Defaulting Lender within five
Business Days after Company’s request that it cure such default; or (c) in connection with any
proposed amendment, modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have
been obtained but the consent of one or more of other Lenders other than the Lender acting as
Administrative Agent (each a “Non-Consenting Lender”) whose consent is required shall not have been
obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or
Non-Consenting Lender (the “Terminated Lender”), Company may, by giving written notice to
Administrative Agent and any Terminated Lender of its election to do so, elect to cause such
Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding
Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a
“Replacement Lender”) in accordance with the provisions of Section 10.6 and Terminated Lender shall
pay any fees payable thereunder in connection with such assignment; provided, (1) on the
date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to
the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that have been
funded by such Terminated Lender, together with all then unpaid interest with respect thereto at
such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such
Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Company shall pay
any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; or
otherwise as if it were a prepayment and (3) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to
each matter in respect of which such Terminated Lender was a Non-Consenting Lender;
provided, Company may not make such election with respect to any Terminated Lender that is
also an Issuing Bank unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued thereby to be cancelled. Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving
Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes
hereof; provided any rights of such Terminated Lender to indemnification hereunder shall
survive as to such Terminated Lender.



     2.24. Incremental Facility. Subject to pro forma compliance (after giving effect to the New
Term Loans) with a Leverage Ratio which is .25x more restrictive than the then-applicable Leverage
Ratio under Section 6.8(c) at such date of determination, Company may by written notice to
Syndication Agent and the Administrative Agent elect to request the establishment of new term loan
commitments (the “New Term Loan Commitments”), by an amount not in excess of $25,000,000 in the
aggregate. The notice shall specify (A) the date (the “Increased Amount Date”) on which Company
proposes that the New Term Loan Commitments shall be effective, which shall be a date not less than
10 Business Days after the date on which such notice is delivered to Syndication Agent and
Administrative Agent and (B) the identity of each Lender or other Person that is an Eligible
Assignee (“New Term Loan Lender”) to whom Company proposes any portion of such New Term Loan
Commitments be allocated and the amounts of such allocations; provided that any Lender
approached to provide all or a portion of the New Term Loan Commitments may elect or decline, in
its sole discretion, to provide a New Term Loan Commitment. Such New Term Loan Commitments shall
become effective, as of the Increased Amount Date; provided that (1) no Default or Event of Default
shall exist on the Increased Amount Date before or after giving effect to such New Term Loan
Commitments; (2) both before and after giving effect to the making of the New Term Loans, each of
the conditions set forth in Section 3.3 shall be satisfied; (3) Holdings and its Subsidiaries shall
be in pro forma compliance with each of the covenants set forth in Section 6.8 as of the last day
of the most recently ended Fiscal Quarter after giving effect to such New Term Loan Commitments;
(4) the New Term Loan Commitments shall be effected pursuant to one or more Joinder Agreements
executed and delivered by Company,



45









 







the New Term Loan Lender and Administrative Agent, and each of which shall be recorded in the
Register and each New Term Loan Lender shall be subject to the requirements set forth in Section
2.20(c); (5) Company shall make any payments required pursuant to Section 2.18(c) in connection
with the New Term Loan Commitments; and (6) Company shall deliver or cause to be delivered any
legal opinions or other documents reasonably requested by Administrative Agent in connection with
such transaction similar to those delivered as of the date hereof.



     On the Increased Amount Date on which the New Term Loan Commitments are effective, subject to
the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a
Loan to Company (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii)
each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan
Commitment and the New Term Loans made pursuant thereto.



     Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of the
Increased Amount Date and in respect thereof the New Term Loan Lenders, subject to the assignments
contemplated by this Section.



     The terms and provisions of the New Term Loans and New Term Loan Commitments shall be, except
as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche C Term Loans.
In any event (i) the weighted average life to maturity of all New Term Loans shall be no shorter
than the weighted average life to maturity of the Tranche C Terms Loans, (ii) the New Term Loan
Maturity Date shall be no later than the final maturity of the Tranche C Term Loans and (iii) the
rate of interest applicable to the New Term Loans shall be determined by Company and the applicable
New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided
however that the interest rate applicable to the New Term Loans shall not be greater than
the highest interest rate that may, under any circumstances, be payable with respect to Tranche C
Term Loans plus 0.50% per annum unless the interest rate with respect to the Tranche C Term Loan is
increased so as to equal the interest rate applicable to the New Term Loans. Each Joinder
Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Credit Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent and Company to effect the provision of this Section 2.24.



SECTION 3. CONDITIONS PRECEDENT




     3.1. Closing Date. The obligation of each Lender to make a Credit Extension on the Closing
Date was subject to the satisfaction, or waiver in accordance with Section 10.5, of the conditions
set forth in Section 3.1 of the Existing First Lien Credit Agreement.



     3.2. Effective Date. The amendments set forth herein and the occurrence of the borrowing the
Tranche C Term Loans under this Agreement shall be effective as of the date on which each of the
following conditions shall have been satisfied (or waived in accordance with Section 10.5 of the
Existing First Lien Credit Agreement):




     (a) The Administrative Agent shall have received copies of executed signature pages to
this Agreement from (i) each Credit Party, (ii) the Administrative Agent on behalf of each
Tranche C Term Loan Lender and each Continuing Lender that has executed and delivered a
Lender Consent Letter and (iii) the Administrative Agent on behalf of Requisite Lenders (as
defined in the Existing First Lien Credit Agreement), which have executed and delivered
Lender Consent Letters.




     (b) Company shall have paid all fees, costs and expenses owing to the Administrative
Agent and its counsel invoiced to Company on or before the Effective Date and reimbursable
by Company under the terms of the Existing First Lien Credit Agreement. The Administrative
Agent shall have received, for its own account or for the account of each Lender (as defined
in the Existing First Lien Credit Agreement) that is not a Continuing Lender all interest
and fees accrued under the Existing First Lien Credit Agreement through the Effective Date.




     (c) Subject to Section 5.15, Collateral Agent shall have received evidence that each
Credit Party shall have taken or caused to be taken any other action, executed and delivered
or caused to be



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executed and delivered any other agreement, document and instrument (including, without
limitation, UCC financing statements, originals of securities, instruments and chattel paper
and any agreements governing deposit and/or securities accounts as provided therein, in each
case, to the extent reasonably required by the Collateral Agent) and made or caused to be
made any other filing and recording (other than as set forth herein) reasonably required by
Collateral Agent.




     (d) Lenders and their respective counsel shall have received originally executed copies
of the favorable written opinions of Kutak Rock LLP and Fredrickson & Byron, P.A., counsel
for Credit Parties, in the form of Exhibit D-1 and Exhibit D-2, respectively, and as to such
other matters as Administrative Agent or Syndication Agent may reasonably request, dated as
of the Effective Date and otherwise in form and substance reasonably satisfactory to
Administrative Agent and Syndication Agent (and each Credit Party hereby instructs such
counsel to deliver such opinions to Agents and Lenders).




     (e) Company shall have repaid or converted, as applicable, in full all Existing
Indebtedness with the proceeds of the Tranche C Term Loans hereunder and Company shall have
repaid in full, or shall have caused the repayment in full of, all other Existing
Indebtedness with the proceeds of the Tranche C Term Loans and shall have delivered to
Administrative Agent all documents or instruments reasonably necessary to release all Liens
securing the obligations of Holdings and its Subsidiaries under the Existing Second Lien
Credit Agreement.




     (f) The Administrative Agent shall have received a copy of the resolutions, in form and
substance reasonably satisfactory to the Administrative Agent, of the board of directors or
other governing body, as applicable, of each Credit Party (or a duly authorized committee
thereof) authorizing (a) the execution, delivery and performance of this Agreement (and any
other amendments or agreements relating to this Agreement to which it is a party) and (b) in
the case of Company, the extensions of credit contemplated hereunder; provided that,
in lieu of delivery of each of the resolutions set forth in this Section 3.2(f), each
applicable Credit Party may deliver a certificate executed by an Authorized Officer of such
Credit Party certifying that there have been no material amendments to those resolutions
previously delivered to the Administrative Agent on the Closing Date pursuant to Section 3.1
of the Existing First Lien Credit Agreement.




     (g) The Administrative Agent shall have received true and complete copies of the
certificate of incorporation and by laws (or equivalent organizational documents) of each
Credit Party as of the Effective Date; provided that, in lieu of delivery of each of the
documents set forth in this Section 3.2(g), each applicable Credit Party may deliver a
certificate executed by an Authorized Officer of such Credit Party certifying that there
have been no material amendments to those documents previously delivered to the
Administrative Agent on the Closing Date pursuant to Section 3.1 of the Existing First Lien
Credit Agreement.




     (h) On the Effective Date, Syndication Agent and Administrative Agent shall have
received a Solvency Certificate from Company dated the Effective Date and addressed to
Syndication Agent, Administrative Agent and the Lenders and in form, scope and substance
satisfactory to Administrative Agent, and demonstrating that after giving effect to the
consummation of the borrowing under this Agreement and any rights of contribution, each of
Company and its Subsidiaries is and will be Solvent.




     (i) The Administrative Agent shall have received a duly executed funds flow memorandum,
reflecting (i) fees, costs and expenses payable by Holdings, Company or any of Company’s
Subsidiaries on or before the Effective Date in connection with the transactions
contemplated by this Agreement and (ii) disbursement on the Effective Date of the proceeds
of the Loans made on such date.




     (j) Holdings and Company shall have delivered to Syndication Agent and Administrative
Agent an originally executed Effective Date Certificate, together with all attachments
thereto.




     (k) The ratio of (i) Consolidated Total Debt as of the Effective Date after giving
effect to the transactions contemplated hereby to (ii) pro forma Consolidated Adjusted
EBITDA for the latest twelve-month period for which financial statements are then available
shall not be greater than 4.75:1.00;



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provided, however, that for purposes of the foregoing calculation, if a
Permitted Acquisition or Asset Sale occurred during such period, Consolidated Adjusted
EBITDA shall be calculated on a pro forma basis in the manner described in Section 6.8(e).



     3.3. Conditions to Each Credit Extension.




     (a) Conditions Precedent. The obligation of each Lender to make any Loan, or
Issuing Bank to issue any Letter of Credit, on any Credit Date, including the Effective
Date, are subject to the satisfaction, or waiver in accordance with Section 10.5, of the
following conditions precedent:




     (i) Administrative Agent (and Swing Line Lender in the case of any Swing Line
Loan) shall have received a fully executed and delivered Funding Notice or Issuance
Notice, as the case may be;




     (ii) after making the Credit Extensions requested on such Credit Date, the
Total Utilization of Revolving Commitments shall not exceed the Revolving
Commitments then in effect;




     (iii) as of such Credit Date, the representations and warranties contained
herein and in the other Credit Documents shall be true and correct in all material
respects on and as of that Credit Date to the same extent as though made on and as
of that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties shall
have been true and correct in all material respects on and as of such earlier date;




     (iv) as of such Credit Date, no Default or Event of Default shall have occurred
and be continuing or would result from the consummation of the applicable Credit
Extension;




     (v) on or before the date of issuance of any Letter of Credit, Administrative
Agent shall have received all other information required by the applicable Issuance
Notice, and such other documents or information as Issuing Bank may reasonably
require in connection with the issuance of such Letter of Credit;




     (vi) the Chief Financial Officer of the Company shall have delivered an
Officer’s Certificate representing and warranting and otherwise demonstrating to the
satisfaction of Agents that, as of such Credit Date, Company reasonably expects,
after giving effect to the proposed borrowing and based upon good faith
determinations and projections consistent with the Financial Plan, to be in
compliance with all operating and financial covenants set forth in this Agreement as
of the last day of the current Fiscal Quarter;




     (vii) as of such Credit Date, the Leverage Ratio determined as of such date
after giving effect to the contemplated Credit Extension shall not exceed the
maximum Leverage Ratio permitted as of the last day of the immediately succeeding
Fiscal Quarter pursuant to Section 6.8; and




     (viii) after giving effect to such Credit Extension and the use of proceeds
thereof the aggregate Cash and Cash Equivalents of Holdings and its Subsidiaries
will not exceed $12,500,000.


Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior
to the making of any Credit Extension, additional information reasonably satisfactory to the
requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment
of such Agent or Requisite Lender such request is warranted under the circumstances.




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     (b) Notices. Any Notice shall be executed by an Authorized Officer in a
writing delivered to Administrative Agent. In lieu of delivering a Notice, Company may give
Administrative Agent telephonic notice by the required time of any proposed borrowing,
conversion/continuation or issuance of a Letter of Credit, as the case may be;
provided each such notice shall be promptly confirmed in writing by delivery of the
applicable Notice to Administrative Agent on or before the applicable date of borrowing,
continuation/conversion or issuance. Neither Administrative Agent nor any Lender shall
incur any liability to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly authorized officer
or other person authorized on behalf of Company or for otherwise acting in good faith.



SECTION 4. REPRESENTATIONS AND WARRANTIES




     In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to each Lender and
Issuing Bank, on the Effective Date and on each Credit Date, that the following statements are true
and correct:



     4.1. Organization; Requisite Power and Authority; Qualification. Each of Holdings and its
Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry
out the transactions contemplated thereby, and (c) is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing
has not had, and could not be reasonably expected to have, a Material Adverse Effect.



     4.2. Capital Stock and Ownership. The Capital Stock of each of the Credit Parties has been
duly authorized and validly issued and is fully paid and non-assessable. Except as set forth on
Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right, commitment
or other agreement to which any Credit Party is a party requiring, and there is no membership
interest or other Capital Stock of any Credit Party outstanding which upon conversion or exchange
would require, the issuance by any Credit Party of any additional membership interests or other
Capital Stock of any Credit Party or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, a membership interest or other Capital Stock of
any Credit Party. Schedule 4.2 correctly sets forth the ownership interest of each Credit Party in
their respective Subsidiaries as of the Effective Date.



     4.3. Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary action on the part of each Credit Party that is a party
thereto.



     4.4. No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate any provision of any law or any governmental rule
or regulation applicable to any Credit Party, any of the Organizational Documents of any Credit
Party, or any order, judgment or decree of any court or other agency of government binding on any
Credit Party except to the extent such violation could not be reasonably expected to have a
Material Adverse Effect; (b) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of any Credit Party except to the
extent such conflict, breach or default could not reasonably be expected to have a Material Adverse
Effect; (c) result in or require the creation or imposition of any Lien upon any of the properties
or assets of any Credit Party (other than any Liens created under any of the Credit Documents in
favor of Collateral Agent, on behalf of Secured Parties); or (d) require any approval of
stockholders, members or partners or any approval or consent of any Person under any Contractual
Obligation of any Credit Party, except for such approvals or consents which will be obtained on or
before the Effective Date and disclosed in writing to Lenders and except for any such approvals or
consents the failure of which to obtain will not have a Material Adverse Effect.



     4.5. Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to,



49









 







with or by, any Governmental Authority except for filings and recordings with respect to the
Collateral to be made, or otherwise delivered to Collateral Agent for filing and/or recordation, as
of the Effective Date and except for any such registrations, consents, approvals, notices or other
actions the failure of which to make will not have a Material Adverse Effect.



     4.6. Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party in accordance with its respective terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to enforceability.



     4.7. Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments.
As of the Effective Date, neither Holdings nor any of its Subsidiaries has any contingent liability
or liability for taxes, long-term lease or unusual forward or long-term commitment that is not
reflected in the Historical Financial Statements or the notes thereto and which in any such case is
material in relation to the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Holdings and any of its Subsidiaries taken as a whole. Notwithstanding
the foregoing, any representations made pursuant to this Section 4.7 with respect to the audited
financial statements for Fiscal Year 2003 and Fiscal Year 2004 and the unaudited financial
statements for Fiscal Year 2005 shall be made only with respect to the best knowledge of Holdings
and the Company.



     4.8. Projections. On and as of the Effective Date, the projections of Holdings and its
Subsidiaries for the period of Fiscal Year 2007 through and including Fiscal Year 2011 (the
“Projections”) are based on good faith estimates and assumptions made by the management of
Holdings; provided, the Projections are not to be viewed as facts and that actual results
during the period or periods covered by the Projections may differ from such Projections and that
the differences may be material; provided further, as of the Effective Date,
management of Holdings believed that the Projections were reasonable and attainable.



     4.9. No Material Adverse Change. Since December 31, 2005, no event, circumstance or change
has occurred that has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect.



     4.10. No Restricted Junior Payments. Since December 31, 2005, neither Holdings nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to
Section 6.5.



     4.11. Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the
aggregate, that could reasonably be expected to have a Material Adverse Effect. Neither Holdings
nor any of its Subsidiaries (a) is in violation of any applicable laws (including Environmental
Laws) that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect, or (b) is subject to or in default with respect to any final judgments, writs,
injunctions, decrees, rules or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign,
that, individually or in the aggregate, could reasonably be expected to have a Material Adverse
Effect.



     4.12. Payment of Taxes. Except as otherwise permitted under Section 5.3, all tax returns and
reports of any Credit Party required to be filed by any of them have been timely filed, and all
taxes shown on such tax returns to be due and payable and all assessments, fees and other
governmental charges upon any Credit Party and upon their respective properties, assets, income,
businesses and franchises which are due and payable have been paid when due and payable. Holdings
knows of no proposed tax assessment against any Credit Party which is not being actively contested
by any Credit Party in good faith and by appropriate proceedings; provided, such reserves
or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.



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     4.13. Properties.




     (a) Title. Each of Holdings and its Subsidiaries has (i) good, sufficient and
legal title to (in the case of fee interests in real property), (ii) valid leasehold
interests in (in the case of leasehold interests in real or personal property), and (iii)
good title to (in the case of all other personal property), all of their respective
properties and assets reflected in their respective Historical Financial Statements referred
to in Section 4.7 and in the most recent financial statements delivered pursuant to Section
5.1, in each case except for assets disposed of since the date of such financial statements
in the ordinary course of business or as otherwise permitted under Section 6.9. Except as
permitted by this Agreement, all such properties and assets are free and clear of Liens.




     (b) Real Estate. As of the Effective Date, Schedule 4.13 contains a true,
accurate and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or
assignments of leases (together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Estate Asset of any Credit Party, regardless
of whether such Credit Party is the landlord or tenant (whether directly or as an assignee
or successor in interest) under such lease, sublease or assignment. Each agreement listed
in clause (ii) of the immediately preceding sentence is in full force and effect and
Holdings does not have knowledge of any default that has occurred and is continuing
thereunder, and each such agreement constitutes the legally valid and binding obligation of
each applicable Credit Party, enforceable against such Credit Party in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’ rights generally or by
equitable principles.



     4.14. Environmental Matters. Neither Holdings nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or
any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Neither Holdings nor any of its Subsidiaries has
received any letter or request for information under Section 104 of the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any comparable state law. There
are and, to each of Holdings’ and its Subsidiaries’ knowledge, have been, no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be expected to form the basis
of an Environmental Claim against any Credit Party that, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. No Credit Party nor, to any Credit
Party’s knowledge, any predecessor of any Credit Party has filed any notice under any Environmental
Law indicating past or present treatment of Hazardous Materials at any Facility, and no Credit
Party’s operations involves the generation, transportation, treatment, storage or disposal of
hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state equivalent. Compliance with
all current or reasonably foreseeable future requirements pursuant to or under Environmental Laws
could not be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect. No event or condition has occurred or is occurring with respect to any Credit Party
relating to any Environmental Law, any Release of Hazardous Materials, or any Hazardous Materials
Activity which individually or in the aggregate has had, or could reasonably be expected to have, a
Material Adverse Effect.



     4.15. No Defaults. Neither Holdings nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists which, with the giving of notice or
the lapse of time or both, could constitute such a default, except in any case, where the
consequences, direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.



     4.16. Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the
Material Contracts in effect on the Effective Date, and except as described thereon, all such
Material Contracts are in full force and effect and no defaults currently exist thereunder which
could reasonably be expected to have, a Material Adverse Effect.



     4.17. Governmental Regulation. Neither Holdings nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940 or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or



51









 







which may otherwise render all or any portion of the Obligations unenforceable. Neither
Holdings nor any of its Subsidiaries is a “registered investment company” or a company “controlled”
by a “registered investment company” or a “principal underwriter” of a “registered investment
company” as such terms are defined in the Investment Company Act of 1940.



     4.18. Margin Stock. Neither Holdings nor any of its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. No part of the proceeds of the Loans made to such Credit
Party will be used to purchase or carry any such Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any such Margin Stock or for any purpose that violates, or is
inconsistent with, the provisions of Regulation T, U or X of the Board of Governors.



     4.19. Employee Matters. Neither Holdings nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a)
no unfair labor practice complaint pending against any Credit Party, or to the best knowledge of
Holdings and Company, threatened against any of them before the National Labor Relations Board and
no grievance or arbitration proceeding arising out of or under any collective bargaining agreement
that is so pending against any Credit Party or to the best knowledge of Holdings and Company,
threatened against any of them, (b) no strike or work stoppage in existence or threatened involving
any Credit Party that could reasonably be expected to have a Material Adverse Effect, and (c) to
the best knowledge of Holdings and Company, no union representation question existing with respect
to the employees of any Credit Party and, to the best knowledge of Holdings and Company, no union
organization activity that is taking place, except (with respect to any matter specified in clause
(a), (b) or (c) above, either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.



     4.20. Employee Benefit Plans. Holdings, each of its Subsidiaries and each of their respective
ERISA Affiliates are in compliance with all applicable provisions and requirements of ERISA and the
Internal Revenue Code and the regulations and published interpretations thereunder with respect to
each Employee Benefit Plan, and have performed all their obligations in all material respects under
each Employee Benefit Plan. Each Employee Benefit Plan which is intended to qualify under Section
401(a) of the Internal Revenue Code has received a favorable determination letter or opinion letter
from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified or the
form of the Employee Benefit Plan has been approved and nothing has occurred subsequent to the
issuance of such determination letter or opinion letter which would cause such Employee Benefit
Plan to lose its qualified status. No liability to the PBGC (other than required premium
payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under
Title IV of ERISA has been or is expected to be incurred by Holdings, any of its Subsidiaries or
any of their ERISA Affiliates. No ERISA Event has occurred or is reasonably expected to occur.
Except to the extent required under Section 4980B of the Internal Revenue Code or similar state
laws, no Employee Benefit Plan provides health or welfare benefits (through the purchase of
insurance or otherwise) for any retired or former employee of Holdings, any of its Subsidiaries or
any of their respective ERISA Affiliates. The present value of the aggregate benefit liabilities
under each Pension Plan, if any, sponsored, maintained or contributed to by Holdings, any of its
Subsidiaries or any of their ERISA Affiliates, (determined as of the end of the most recent plan
year on the basis of the actuarial assumptions specified for funding purposes in the most recent
actuarial valuation for such Pension Plan), did not exceed the aggregate current value of the
assets of such Pension Plan. As of the most recent valuation date for each Multiemployer Plan, if
any, for which the actuarial report is available, the potential liability of Holdings, its
Subsidiaries and their respective ERISA Affiliates for a complete withdrawal from such
Multiemployer Plan (within the meaning of Section 4203 of ERISA), when aggregated with such
potential liability for a complete withdrawal from all Multiemployer Plans, based on information
available pursuant to Section 4221(e) of ERISA is zero. Holdings, each of its Subsidiaries and
each of their ERISA Affiliates have complied with the requirements of Section 515 of ERISA with
respect to each Multiemployer Plan and are not in material “default” (as defined in Section
4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.



     4.21. Certain Fees. No broker’s or finder’s fee or commission will be payable with respect to
the transactions contemplated hereby except as payable to the Agents and Lenders.



     4.22. Solvency. The Credit Parties are and, upon the incurrence of any Obligation by any
Credit Party on any date on which this representation and warranty is made, will be, Solvent.



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     4.23. Compliance with Statutes, etc. Each of Holdings and its Subsidiaries is in compliance
with all applicable statutes, regulations and orders of, and all applicable restrictions imposed
by, all Governmental Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate Asset or the operations of any Credit
Party), except such non-compliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



     4.24. Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written statements furnished to any Agent or
Lender by or on behalf of any Credit Party for use in connection with the transactions contemplated
hereby contains any untrue statement of a material fact or omits to state a material fact (known to
Holdings or Company, in the case of any document not furnished by either of them) necessary in
order to make the statements contained herein or therein not misleading in light of the
circumstances in which the same were made. Any projections and pro forma financial information
contained in such materials are based upon good faith estimates and assumptions believed by
Holdings or Company to be reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual results during the
period or periods covered by any such projections may differ from the projected results. There are
no facts known (or which should upon the reasonable exercise of diligence be known) to Holdings or
Company (other than matters of a general economic nature) that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect and that have not been
disclosed herein or in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.



     4.25. Patriot Act. To the extent applicable, each Credit Party is in compliance, in all
material respects, with the (i) Trading with the Enemy Act, as amended, and each of the foreign
assets control regulations of the Untied States Treasury Department (31 C.F.R., Subtitle B, Chapter
V, as amended) and any other enabling legislation or executive order relating thereto, and (ii)
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism (USA Patriot Act of 2001). No part of the proceeds of the Loans will be used, directly
or indirectly, for any payments to any governmental official or employee, political party, official
of a political party, candidate for political office, or anyone else acting in an official
capacity, in order to obtain, retain or direct business or obtain any improper advantage, in
violation of the United States Foreign Corrupt Practices Act of 1977, as amended.



SECTION 5. AFFIRMATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.



     5.1. Financial Statements and Other Reports. Holdings will deliver to Administrative Agent,
Syndication Agent and Lenders:




     (a) Monthly Reports. As soon as available, and in any event within thirty (30)
days after the end of each month ending after the Closing Date, commencing with the month in
which the Closing Date occurs, the consolidated balance sheet of Holdings and its
Subsidiaries as at the end of such month and the related consolidated statements of income
and cash flows of Holdings and its Subsidiaries for such month and for the period from the
beginning of the then current Fiscal Year to the end of such month, setting forth in each
case in comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the Financial Plan for the current
Fiscal Year, to the extent prepared on a monthly basis, all in reasonable detail, together
with a Financial Officer Certification and a Narrative Report with respect thereto;




     (b) Quarterly Financial Statements. As soon as available, and in any event
within forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year,
commencing with the Fiscal Quarter in which the Closing Date occurs, the consolidated
balance sheets of Holdings and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated statements of income, and cash flows of Holdings



53









 







and its Subsidiaries for such Fiscal Quarter and for the period from the beginning of
the then current Fiscal Year to the end of such Fiscal Quarter, setting forth in each case
in comparative form the corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification and a
Narrative Report with respect thereto;




     (c) Annual Financial Statements. As soon as available, and in any event within
ninety (90) days after the end of each Fiscal Year, commencing with the 2005 Fiscal Year,
(i) the consolidated and consolidating balance sheets of Holdings and its Subsidiaries as at
the end of such Fiscal Year and the related consolidated (and with respect to statements of
income, consolidating) statements of income, stockholders’ equity and cash flows of Holdings
and its Subsidiaries for such Fiscal Year, setting forth in each case in comparative form
the corresponding figures for the previous Fiscal Year and the corresponding figures from
the Financial Plan for the Fiscal Year covered by such financial statements, in reasonable
detail, together with a Financial Officer Certification and a Narrative Report with respect
thereto; and (ii) with respect to such consolidated financial statements a report thereon of
Deloitte & Touche LLP or other independent certified public accountants of recognized
national standing selected by Holdings, and reasonably satisfactory to Administrative Agent
(which report shall be unqualified as to going concern and scope of audit, and shall state
that such consolidated financial statements fairly present, in all material respects, the
consolidated financial position of Holdings and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except as otherwise
disclosed in such financial statements) and that the examination by such accountants in
connection with such consolidated financial statements has been made in accordance with
generally accepted auditing standards) together with a written statement by such independent
certified public accountants stating (1) that their audit examination has included a review
of the terms of the Credit Documents, and (2) whether, in connection with their review of
Section 6.8 of this Agreement, any condition or event that constitutes a Default or an Event
of Default with respect to Section 6.8 has come to their attention and, if such a condition
or event has come to their attention, specifying the nature and period of existence thereof;




     (d) Compliance Certificate. Together with each delivery of financial
statements of Holdings and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly
executed and completed Compliance Certificate;




     (e) Statements of Reconciliation after Change in Accounting Principles. If, as
a result of any change in accounting principles and policies from those used in the
preparation of the Historical Financial Statements, the consolidated financial statements of
Holdings and its Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in
any material respect from the consolidated financial statements that would have been
delivered pursuant to such subdivisions had no such change in accounting principles and
policies been made, then, together with the first delivery of such financial statements
after such change, one or more statements of reconciliation for all such prior financial
statements in form and substance satisfactory to Administrative Agent;




     (f) Notice of Default. Promptly upon any officer of Holdings or Company
obtaining knowledge (i) of the occurrence of a Default or an Event of Default or that notice
has been given to Holdings or Company with respect thereto; (ii) that any Person has given
any notice to Holdings or any of its Subsidiaries or taken any other action with respect to
any event or condition set forth in Section 8.1(b); or (iii) of the occurrence of any event
or change that has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect, a certificate of one of its Authorized Officers specifying the nature and
period of existence of such condition, event or change, or specifying the notice given and
action taken by any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Company has taken, is taking and proposes to
take with respect thereto;




     (g) Notice of Litigation. Promptly upon any officer of Holdings or Company
obtaining knowledge of (i) the institution of, or non-frivolous threat of, any Adverse
Proceeding not previously disclosed in writing by Company to Lenders, or (ii) any material
development in any Adverse Proceeding that, in the case of either clause (i) or (ii), if
adversely determined, could be reasonably expected to have a



54









 







Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of,
or to recover any damages or obtain relief as a result of, the transactions contemplated
hereby, written notice thereof together with such other information as may be reasonably
available to Holdings or Company to enable Lenders and their counsel to evaluate such
matters;




     (h) ERISA. (i) Promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof,
what action Holdings, any of its Subsidiaries or any of their respective ERISA Affiliates
has taken, is taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or the PBGC
with respect thereto; and (ii) with reasonable promptness, copies of (1) each Schedule B
(Actuarial information) to the annual report (Form 5500 Series) filed by Holdings, any of
its Subsidiaries or any of their respective ERISA Affiliates with the Internal Revenue
Service with respect to each Pension Plan; (2) all notices received by Holdings, any of its
Subsidiaries or any of their respective ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (3) copies of such other documents or governmental reports or
filings relating to any Employee Benefit Plan as Administrative Agent shall reasonably
request;




     (i) Financial Plan. As soon as practicable and in any event no later than
thirty (30) days after the end of each Fiscal Year, a consolidated plan and financial
forecast for the current Fiscal Year (a “Financial Plan”), including (i) a forecasted
consolidated balance sheet and forecasted consolidated statements of income and cash flows
of Holdings and its Subsidiaries for such Fiscal Year, together with a pro forma Compliance
Certificate for such Fiscal Year and an explanation of the assumptions on which such
forecasts are based, (ii) forecasted consolidated statements of income and cash flows of
Holdings and its Subsidiaries for each month of such Fiscal Year, (iii) forecasts
demonstrating projected compliance with the requirements of Section 6.8 for such Fiscal Year
and (iv) forecasts demonstrating adequate liquidity for such Fiscal Year without giving
effect to any additional debt or equity offerings not reflected in the Projections,
together, in each case, with an explanation of the assumptions on which such forecasts are
based all in form and substance reasonably satisfactory to Agents. To the extent the
Financial Plan for any Fiscal Year is materially different from the Current Projections for
such Fiscal Year, Holdings will deliver to Administrative Agent, Lead Arranger and Lenders
updated Current Projections. “Current Projections” means (a) initially, the Projections and
(b) subsequent to any updates pursuant to this Section 5.1(i), such updated Current
Projections for the period from the current Fiscal Year through and including Fiscal
Year 2011.




     (j) Insurance Report. As soon as practicable and in any event by the last day
of each Fiscal Year, a certificate from Company’s insurance broker(s) in form and substance
satisfactory to Administrative Agent outlining all material insurance coverage maintained as
of the date of such certificate by Holdings and its Subsidiaries and all material insurance
coverage planned to be maintained by Holdings and its Subsidiaries in the immediately
succeeding Fiscal Year;




     (k) Notice of Change in Board of Directors. With reasonable promptness,
written notice of any change in the board of directors (or similar governing body) of
Holdings or Company;




     (l) Notice Regarding Material Contracts. Promptly, and in any event within ten
Business Days (i) after any Material Contract of any Credit Party is terminated or amended
in a manner that is materially adverse to Holdings or such Subsidiary, as the case may be,
or (ii) any new Material Contract is entered into, a written statement describing such
event, with copies of such material amendments or new contracts, delivered to Administrative
Agent (to the extent such delivery is permitted by the terms of any such Material Contract,
provided, no such prohibition on delivery shall be effective if it were bargained
for by Holdings or its applicable Subsidiary with the intent of avoiding compliance with
this Section 5.1(1)), and an explanation of any actions being taken with respect to clause
(i);




     (m) [Reserved]




     (n) Information Regarding Collateral. (a) Company will furnish to Collateral
Agent prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in
any Credit Party’s identity or



55









 







corporate structure, (iii) in any Credit Party’s jurisdiction of organization or (iv)
in any Credit Party’s Federal Taxpayer Identification Number or state organizational
identification number. Company agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial Code or
otherwise that are required in order for Collateral Agent to continue at all times following
such change to have a valid, legal and perfected security interest in all the Collateral as
contemplated in the Collateral Documents. Company also agrees promptly to notify Collateral
Agent if any material portion of the Collateral is damaged or destroyed;




     (o) Annual Collateral Verification. Each year, at the time of delivery of
annual financial statements with respect to the preceding Fiscal Year pursuant to Section
5.1(c), Company shall deliver to Collateral Agent a certificate of its Authorized Officer
(i) either confirming that there has been no change in such information since the date of
the Collateral Questionnaire delivered on the Closing Date or the date of the most recent
certificate delivered pursuant to this Section and/or identifying such changes and
(ii) certifying that all Uniform Commercial Code financing statements (including fixtures
filings, as applicable) or other appropriate filings, recordings or registrations, have been
filed of record in each governmental, municipal or other appropriate office in each
jurisdiction identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Collateral Documents for a period of not less than
18 months after the date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period); and




     (p) Other Information. (A) Promptly upon their becoming available, copies of
(i) all financial statements, reports, notices and proxy statements sent or made available
generally by Holdings to its security holders acting in such capacity or by any Subsidiary
of Holdings to its security holders other than Holdings or another Subsidiary of Holdings,
(ii) all regular and periodic reports and all registration statements and prospectuses, if
any, filed by any Credit Party with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority, (iii) all press
releases and other statements made available generally by any Credit Party to the public
concerning material developments in the business of any Credit Party, and (B) such other
information and data with respect to any Credit Party as from time to time may be reasonably
requested by Administrative Agent or any Lender.



     5.2. Existence. Except as otherwise permitted under Section 6.9, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
(i) existence and (ii) all rights and franchises, licenses and permits material to its business;
provided, no Credit Party (other than Company with respect to existence) or any of its
Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and
permits if such Person’s board of directors (or similar governing body) shall determine that the
preservation thereof is no longer desirable in the conduct of the business of such Person, and that
the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.



     5.3. Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of
any of its income, businesses or franchises before any penalty or fine accrues thereon, and all
claims (including claims for labor, services, materials and supplies) for sums that have become due
and payable and that by law have or may become a Lien upon any of its properties or assets, prior
to the time when any penalty or fine shall be incurred with respect thereto; provided, no
such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate
provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in
the case of a Tax or claim which has or may become a Lien against any of the Collateral, such
contest proceedings conclusively operate to stay the sale of any portion of the Collateral to
satisfy such Tax or claim. No Credit Party will, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any Person (other than
Holdings or any of its Subsidiaries).



     5.4. Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the business of Holdings
and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.



56









 





     5.5. Insurance. Holdings will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, third party property damage insurance,
business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Holdings and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, Holdings will maintain or cause to be maintained (a) flood insurance with respect to
each Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name Collateral Agent, on behalf of Secured Parties as an additional insured
thereunder as its interests may appear and (ii) in the case of each casualty insurance policy,
contain a loss payable clause or endorsement, satisfactory in form and substance to Collateral
Agent, that names Collateral Agent, on behalf of Lenders as the loss payee thereunder and provides
for at least thirty days’ prior written notice to Collateral Agent of any modification or
cancellation of such policy.



     5.6. Books and Records; Inspections. Each Credit Party will, and will cause each of its
Subsidiaries to, keep proper books of record and accounts in which full, true and correct entries
in conformity in all material respects with GAAP shall be made of all dealings and transactions in
relation to its business and activities. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by Administrative Agent or any
Lender to visit and inspect any of the properties of any Credit Party and any of its respective
Subsidiaries, to inspect, copy and take extracts from its and their financial and accounting
records, and to discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants, all upon reasonable notice and at such reasonable times during
normal business hours and as often as may reasonably be requested. So long as no Default or Event
of Default shall have occurred or be continuing, the Credit Parties shall only pay the fees and
expenses for two such inspections per Fiscal Year.



     5.7. Lenders Meetings. Holdings and Company will, upon the request of (i) Administrative
Agent or (ii) Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once
during each Fiscal Year to be held at Company’s corporate offices (or at such other location as may
be agreed to by Company and Administrative Agent) at such time as may be agreed to by Company and
Administrative Agent.



     5.8. Compliance with Laws. Each Credit Party will comply, and shall cause each of its
Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority
(including all Environmental Laws), noncompliance with which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



     5.9. Environmental.




(a) Environmental Disclosure. Holdings will deliver to Administrative Agent
and Lenders:




     (i) as soon as practicable following receipt thereof, and to the extent
permitted by the terms thereof, copies of all environmental audits, investigations,
analyses and reports of any kind or character, whether prepared by personnel of
Holdings or any of its Subsidiaries or by independent consultants, governmental
authorities or any other Persons, with respect to significant environmental matters
at any Facility or with respect to any Environmental Claims;




     (ii) promptly following the occurrence thereof, written notice describing in
reasonable detail (1) any Release required to be reported to any federal, state or
local governmental or regulatory agency under any applicable Environmental Laws, (2)
any remedial action taken by Holdings or any other Person in response to (A) any
Hazardous Materials Activities the existence of which has a reasonable possibility
of resulting in one or more Environmental Claims having, individually or in the
aggregate, a Material Adverse Effect, or (B) any Environmental Claims that,
individually or in the aggregate, have a reasonable possibility



57









 







of resulting in a Material Adverse Effect, and (3) Holdings or Company’s
discovery of any occurrence or condition on any real property adjoining or in the
vicinity of any Facility that could cause such Facility or any part thereof to be
subject to any material restrictions on the ownership, occupancy, transferability or
use thereof under any Environmental Laws;




     (iii) as soon as practicable following the sending or receipt thereof by any
Credit Party, a copy of any and all written communications with respect to (1) any
Environmental Claims that, individually or in the aggregate, have a reasonable
possibility of giving rise to a Material Adverse Effect, (2) any Release required to
be reported to any federal, state or local governmental or regulatory agency, and
(3) any request for information from any governmental agency that suggests such
agency is investigating any Credit Party may be potentially responsible for any
Hazardous Materials Activity that would impose liability on any Credit Party in an
amount in excess of $2,000,000;




     (iv) prompt written notice describing in reasonable detail (1) any proposed
acquisition of stock, assets, or property by any Credit Party that could reasonably
be expected to (A) expose any Credit Party to, or result in, Environmental Claims
that could reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (B) affect the ability of any Credit Party to maintain in
full force and effect all material Governmental Authorizations required under any
Environmental Laws for their respective operations to the extent failure to have
such Governmental Authorizations could reasonably be expected to have a Material
Adverse Effect and (2) any proposed action to be taken by any Credit Party to modify
current operations in a manner that could reasonably be expected to subject any
Credit Party to any additional material obligations or requirements under any
Environmental Laws; and




     (v) with reasonable promptness, such other documents and information as from
time to time may be reasonably requested by Administrative Agent in relation to any
matters disclosed pursuant to this Section 5.9(a).




     (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly
take, and shall cause each of its Subsidiaries promptly to take, any and all actions
necessary to (i) cure any violation of applicable Environmental Laws by such Credit Party or
its Subsidiaries that could reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect, and (ii) make an appropriate response to any
Environmental Claim against such Credit Party or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder where failure to do so could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,



     5.10. Subsidiaries and Additional Credit Parties. In the event that any Person becomes a
Domestic Subsidiary of Company or becomes a Credit Party hereunder, Company shall (a) promptly
cause such Person to become a Guarantor hereunder and a Grantor under the Pledge and Security
Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart
Agreement, and (b) take all such actions and execute and deliver, or cause to be executed and
delivered, all such documents, instruments, agreements, and certificates as are similar to those
described in Sections 3.1(b), 3.1(i), 3.1(j) and 3.1(n) of the Existing First Lien Credit
Agreement. In the event that any Person becomes a Foreign Subsidiary of Company, and the ownership
interests of such Foreign Subsidiary are owned by Company or by any Domestic Subsidiary thereof,
Company shall, or shall cause such Domestic Subsidiary to, deliver, all such documents,
instruments, agreements, and certificates as are similar to those described in Sections 3.1(b) of
the Existing First Lien Credit Agreement, and Company shall take, or shall cause such Domestic
Subsidiary to take, all of the actions referred to in Section 3.1(j)(i) of the Existing First Lien
Credit Agreement necessary to grant and to perfect a First Priority Lien in favor of Collateral
Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement in 65% of such
ownership interests. With respect to each such Subsidiary, Company shall promptly send to
Administrative Agent written notice setting forth with respect to such Person (i) the date on which
such Person became a Subsidiary of Company or on which such Person will become a Credit Party, and
(ii) all of the data required to be set forth in Schedules 4.1 and 4.2 with respect to all Credit
Parties; provided, such written notice shall be deemed to supplement Schedule 4.1 and 4.2
for all purposes hereof.



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     5.11. Additional Material Real Estate Assets. In the event that any Credit Party acquires a
Material Real Estate Asset or a Real Estate Asset owned or leased on the Closing Date becomes a
Material Real Estate Asset and such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such
Credit Party, shall promptly take all reasonable actions and execute and deliver, or cause to be
executed and delivered, all such mortgages, documents, instruments, agreements, opinions and
certificates similar to those described in Sections 3.1(i) and 3.1(j) of the Existing First Lien
Credit Agreement with respect to each such Material Real Estate Asset that Collateral Agent shall
reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a
valid and, subject to any filing and/or recording referred to herein, perfected First Priority
security interest in such Material Real Estate Assets. In addition to the foregoing, Company
shall, at the reasonable request of Collateral Agent, deliver, from time to time, to Collateral
Agent such appraisals as are required by law or regulation of Real Estate Assets with respect to
which Collateral Agent has been granted a Lien.



     5.12. Interest Rate Protection. No later than 90 days following the Closing Date and at all
times thereafter, Company shall obtain and cause to be maintained protection against the
fluctuations in interest rates pursuant to one or more Interest Rate Agreements for a term of not
less than three (3) years and otherwise in form and substance reasonably satisfactory to
Administrative Agent and Syndication Agent, in order to ensure that no less than 50% of the
aggregate principal amount of the total Indebtedness of Holdings and its Subsidiaries outstanding
on the Closing Date is either (i) subject to such Interest Rate Agreements or (ii) Indebtedness
that bears interest at a fixed rate.



     5.13. Further Assurances. At any time or from time to time upon the reasonable request of
Administrative Agent, each Credit Party will, at its expense, promptly execute, acknowledge and
deliver such further documents and do such other acts and things as Administrative Agent or
Collateral Agent may reasonably request in order to effect fully the purposes of the Credit
Documents. In furtherance and not in limitation of the foregoing, each Credit Party shall take
such actions as Administrative Agent or Collateral Agent may reasonably request from time to time
to ensure that the Obligations are guarantied by the Guarantors and are secured by substantially
all of the assets of Holdings, and its Subsidiaries and all of the outstanding Capital Stock of
Company and its Subsidiaries (subject to limitations contained in the Credit Documents with respect
to Foreign Subsidiaries).



     5.14. Non-Consolidation. Unless otherwise consented to by Agents or Requisite Lenders,
Holdings will and will cause each of its Subsidiaries to maintain entity records and books of
account separate from those of any other entity which is an Affiliate of such entity.



     5.15. Post-Closing Covenant. Company shall deliver, furnish and/or cause to be furnished all
of the obligations set forth below within the time periods specified therewith:




     (a) Within fifteen (15) Business Days after the Effective Date, Company shall record or
cause to be recorded with the United States Patent and Trademark Office and the United
States Copyright Office, as applicable, (i) assignments from (1) Meteorlogix, LLC, (2) DTN
Energy Services, LLC and (3) DTN Market Access, LLC of all Intellectual Property to Data
Transmission Network Corporation, (ii) assignments from Progressive Farmer, Inc. of all
Intellectual Property to Data Transmission Network Corporation, and (iii) a change of the
name of the record owner of all Intellectual Property currently registered or issued to, or
applied for in the name of Data Transmission Network Corporation, from Data Transmission
Network Corporation to DTN, Inc.; provided, such fifteen (15) Business Day period
may be extended an additional fifteen (15) Business Days with the consent of Administrative
Agent; and




     (b) Within fifteen (15) Business Days after the Effective Date, the applicable Credit
Party shall execute and deliver to the Collateral Agent any document that, in the Collateral
Agent’s reasonable discretion, is necessary or desirable to acknowledge, confirm, register,
record, or perfect the Collateral Agent’s interest in each Copyright (as defined in the
Pledge and Security Agreement) owned by such Credit Party.



59









 





SECTION 6. NEGATIVE COVENANTS




     Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, such
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.



     6.1. Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness, except:




     (a) the Obligations;




     (b) Indebtedness of (x) any Credit Party to any other Credit Party, or (y) DTN Leasing,
Inc. to any Credit Party not to exceed the amount of such Indebtedness in existence on the
Closing Date plus an additional aggregate amount of $6,500,000 per Fiscal Year;
provided, (i) all such Indebtedness shall be evidenced by promissory notes and all
such notes shall be subject to a First Priority Lien pursuant to the Pledge and Security
Agreement, (ii) all such Indebtedness shall be subordinated in right of payment to the
payment in full of the Obligations pursuant to the terms of the applicable promissory notes
or an intercompany subordination agreement that in any such case, is reasonably satisfactory
to Administrative Agent, and (iii) any payment by any such Credit Party under any guaranty
of the Obligations shall result in a pro tanto reduction of the amount of any Indebtedness
owed by such Credit Party to any other Credit Party for whose benefit such payment is made;




     (c) Indebtedness of DTN Leasing, Inc. or its Subsidiaries to Persons other than Credit
Parties or Subsidiaries of Credit Parties not to exceed an aggregate amount of $5,000,000;
provided, any such Indebtedness shall be secured only by the asset acquired in
connection with the incurrence of such Indebtedness;




     (d) Indebtedness incurred by any Credit Party or any of its Subsidiaries arising from
agreements providing for indemnification, adjustment of purchase price or similar
obligations, or from guaranties or letters of credit, surety bonds or performance bonds
securing the performance of Company or any such Subsidiary pursuant to such agreements, in
connection with Permitted Acquisitions or dispositions permitted in Section 6.9 of any
business, assets or Subsidiary of Holdings or any of its Subsidiaries;




     (e) Indebtedness which may be deemed to exist pursuant to any guaranties, performance,
surety, statutory, appeal or similar obligations incurred in the ordinary course of
business;




     (f) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts;




     (g) guaranties in the ordinary course of business of the obligations of suppliers,
customers, franchisees and licensees of Holdings and its Subsidiaries;




     (h) guaranties by any Credit Party or any Guarantor Subsidiary of any Credit Party of
Indebtedness of any Credit Party or any Guarantor Subsidiary of any Credit Party with
respect, in each case, to Indebtedness otherwise permitted to be incurred pursuant to this
Section 6.1; provided, that if the Indebtedness that is being guarantied is
unsecured and/or subordinated to the Obligations, the guaranty shall also be unsecured
and/or subordinated to the Obligations;




     (i) Indebtedness described in Schedule 6.1, but not any extensions, renewals or
replacements of such Indebtedness except (i) renewals and extensions expressly provided for
in the agreements evidencing any such Indebtedness as the same are in effect on the date of
this Agreement and (ii) refinancings and extensions of any such Indebtedness if the terms
and conditions thereof are not less favorable to the obligor thereon or to the Lenders than
the Indebtedness being refinanced or extended, and the average life to maturity thereof is
greater than or equal to that of the Indebtedness being refinanced or



60









 







extended; provided, such Indebtedness permitted under the immediately preceding
clause (i) or (ii) above shall not (A) include Indebtedness of an obligor that was not an
obligor with respect to the Indebtedness being extended, renewed or refinanced, (B) exceed
in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be
incurred, created or assumed if any Default or Event of Default has occurred and is
continuing or would result therefrom;




     (j) Indebtedness with respect to Capital Leases in an aggregate amount not to exceed at
any time $5,000,000;




     (k) purchase money Indebtedness in an aggregate amount not to exceed at any time
$5,000,000; provided, any such Indebtedness (i) shall be secured only by the asset
acquired in connection with the incurrence of such Indebtedness, and (ii) shall constitute
not less than 80% and not more than 100% of the aggregate consideration paid with respect to
such asset;




     (l) Indebtedness of DTN Leasing or its Subsidiaries owed to any Credit Party to acquire
assets acquired by such Credit Party in connection with a Permitted Acquisition, which is
subordinated to the Obligations;




     (m) other unsecured Indebtedness of Holdings and its Subsidiaries, which is unsecured
and subordinated to the Obligations in a manner satisfactory to Administrative Agent in an
aggregate amount not to exceed at any time $2,000,000; and




     (n) other unsecured Indebtedness of Holdings and its Subsidiaries, which is
subordinated to the Obligations in a manner satisfactory to Administrative Agent in an
aggregate amount not to exceed at any time $25,000,000; provided that no Default or
Event of Default shall have occurred and be continuing or would result therefrom and the pro
forma Senior Leverage Ratio after giving effect to the incurrence of such Indebtedness is
less than 3.00:1.00.



          Indebtedness permitted pursuant to one of the above subsections shall not be included in
determining the limitation contained in any other subsection of this Section 6.1.



     6.2. Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property
or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of Holdings or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC of any State or under any similar recording or notice statute,
except:




     (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted
pursuant to any Credit Document;




     (b) Liens for Taxes if obligations with respect to such Taxes are being contested in
good faith by appropriate proceedings promptly instituted and diligently conducted;




     (c) statutory Liens of landlords, banks (and rights of set-off), of carriers,
warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law
(other than any such Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal
Revenue Code or by ERISA), in each case incurred in the ordinary course of business (i) for
amounts not yet overdue or (ii) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of five days) are being contested in good faith
by appropriate proceedings, so long as such reserves or other appropriate provisions, if
any, as shall be required by GAAP shall have been made for any such contested amounts;




     (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of



61









 







tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money or other
Indebtedness), so long as no foreclosure, sale or similar proceedings have been commenced
with respect to any portion of the Collateral on account thereof that have not been
dismissed within 30 days;




     (e) easements, rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in any material
respect with the ordinary conduct of the business of Holdings or any of its Subsidiaries;




     (f) any interest or title of a lessor or sublessor under any lease of real estate
permitted hereunder;




     (g) Liens solely on any cash earnest money deposits made by Holdings or any of its
Subsidiaries in connection with any letter of intent or purchase agreement permitted
hereunder;




     (h) purported Liens evidenced by the filing of precautionary UCC financing statements
relating solely to operating leases (under GAAP) of personal property entered into in the
ordinary course of business;




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




     (j) any zoning or similar law or right reserved to or vested in any governmental office
or agency to control or regulate the use of any real property;




     (k) licenses of patents, trademarks and other intellectual property rights granted by
Holdings or any of its Subsidiaries in the ordinary course of business and not interfering
in any respect with the ordinary conduct of the business of Holdings or such Subsidiary;




     (l) Liens described in Schedule 6.2 or on a title report delivered pursuant to
Section 3.1(i)(iv) of the Existing First Lien Credit Agreement;




     (m) [reserved];




     (n) Liens securing Indebtedness permitted pursuant to Sections 6.1(b), 6.1(c), 6.1(j)
and 6.1(k); provided, with respect to 6.1(c), 6.1(j) and 6.1(k) any such Lien shall
encumber only the asset acquired with the proceeds of such Indebtedness; and




     (o) other Liens on assets other than the Collateral securing Indebtedness in an
aggregate amount not to exceed $1,000,000 at any time outstanding.



     6.3. Equitable Lien. If any Credit Party shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than Permitted Liens, it shall
make or cause to be made effective provisions whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided, notwithstanding the foregoing, this covenant
shall not be construed as a consent by Requisite Lenders to the creation or assumption of any such
Lien not otherwise permitted hereby.



     6.4. No Further Negative Pledges. Except with respect to (a) specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale, and (b) restrictions by reason of customary provisions
restricting assignments, subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such restrictions are
limited to the property or assets secured by such Liens or the property or assets subject to such
leases, licenses or similar agreements, as the case may be), no Credit Party nor any of its
Subsidiaries



62









 







shall enter into any agreement prohibiting the creation or assumption of any Lien upon any of
its properties or assets, whether now owned or hereafter acquired, to secure the Obligations.



     6.5. Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries through any manner or means or through any other Person to, directly or indirectly,
declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum
for any Restricted Junior Payment except, (a) any Restricted Junior Payment by DTN Leasing or any
of its Subsidiaries to any Credit Party, (b) any Restricted Junior Payment by Company or any
Guarantor Subsidiary to Company or any Guarantor Subsidiary and (c) so long as no Default or Event
of Default shall have occurred and be continuing or shall be caused thereby any Restricted Junior
Payment by any Credit Party or any Subsidiary of any Credit Party to Holdings or any Holdco (i) in
an aggregate amount not to exceed $2,000,000 in any Fiscal Year, to the extent necessary to permit
Holdings to pay general administrative costs and expenses and (ii) to the extent necessary to
permit Holdings to discharge the consolidated tax liabilities of Holdings and its Subsidiaries, in
each case so long as Holdings applies the amount of any such Restricted Junior Payment for such
purpose.



     6.6. Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of Company to (a) pay dividends or make any other distributions on any of such
Subsidiary’s Capital Stock owned by Company or any other Subsidiary of Company, (b) repay or prepay
any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (c) make
loans or advances to Company or any other Subsidiary of Company, or (d) transfer any of its
property or assets to Company or any other Subsidiary of Company other than restrictions (i) in
agreements evidencing Indebtedness permitted by Sections 6.1(c), 6.1(j) and 6.1(k) that impose
restrictions on the property so acquired, (ii) by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses, joint venture agreements
and similar agreements entered into in the ordinary course of business, (iii) that are or were
created by virtue of any transfer of, agreement to transfer or option or right with respect to any
property, assets or Capital Stock not otherwise prohibited under this Agreement, or (iv) described
on Schedule 6.6.



     6.7. Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including without limitation any
Joint Venture, except:




     (a) Investments in Cash and Cash Equivalents;




          (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments
made after the Closing Date in any Credit Party or any wholly-owned Guarantor Subsidiary,
now existing or hereinafter acquired or formed;




          (c) Investments (i) in any Securities received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and (ii) deposits, prepayments and other
credits to suppliers made in the ordinary course of business consistent with the past
practices of Holdings and its Subsidiaries;




          (d) intercompany loans to the extent permitted under Section 6.1(b) or 6.1(l);




          (e) Consolidated Capital Expenditures with respect to Company and the Guarantors
permitted by Section 6.8(d);




          (f) loans and advances to employees of Holdings and its Subsidiaries made in the
ordinary course of business in an aggregate principal amount not to exceed $2,000,000 in the
aggregate;




          (g) Investments made in connection with Permitted Acquisitions permitted pursuant to
Section 6.9;




          (h) Investments described in Schedule 6.7;



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     (i) Investments made by any Credit Party in DTN Leasing or any of its Subsidiaries not
to exceed, when taken together with the amount of any additional Indebtedness made to such
Persons after the Closing Date pursuant to Section 6.1(b)(y), an aggregate amount of
$6,500,000 per Fiscal Year; and




     (j) other Investments in an aggregate amount not to exceed at any time $3,000,000.



          Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under
the terms of Section 6.5.




          Investments permitted pursuant to one of the above subsections shall not be included in
determining the limitation contained in any other subsection of this Section 6.7.




     6.8. Financial Covenants.




     (a) Interest Coverage Ratio. Holdings shall not permit the Interest Coverage
Ratio as of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending
June 30, 2007, to be less than the correlative ratio indicated below:



	 	 	 	 	 
	Fiscal	 	Interest
	Quarter	 	Coverage Ratio
	March 31, 2007 through December 31, 2007
	 	 	1.70:1.00	 
	March 31, 2008 through December 31, 2008
	 	 	2.00:1.00	 
	March 31, 2009 through December 31, 2009
	 	 	2.25:1.00	 
	March 31, 2010 through December 31, 2010
	 	 	2.50:1.00	 
	March 31, 2011 and thereafter
	 	 	3.00:1.00	 







     (b) [Reserved].




     (c) Leverage Ratio. Holdings shall not permit the Leverage Ratio as of the
last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending June 30, 2007, to
exceed the correlative ratio indicated below:



	 	 	 	 	 
	Fiscal	 	Leverage
	Quarter	 	Ratio
	March 31, 2007 through September 30, 2007
	 	 	5.25:1.00	 
	December 31, 2007 through December 31, 2008
	 	 	5.00:1.00	 
	June 30, 2008 through December 31, 2008
	 	 	4.75:1.00	 
	March 31, 2009 through
June 30, 2009
	 	 	4.50:1.00	 
	September 30, 2009 through December 31, 2009
	 	 	4.25:1.00	 
	March 31, 2010 through
June 30, 2010
	 	 	3.75:1.00	 






64









 






	 	 	 	 	 
	Fiscal	 	Leverage
	Quarter	 	Ratio
	September 30, 2010 through December 31, 2010
	 	 	3.50:1.00	 
	March 31, 2011 and thereafter
	 	 	3.25:1.00	 







     (d) Maximum Consolidated Capital Expenditures. Holdings shall not, and shall
not permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any
Fiscal Year indicated below, in an aggregate amount for Holdings and its Subsidiaries in
excess of the sum of (i) the corresponding amount set forth below opposite such Fiscal Year
(the “Maximum Consolidated Capital Expenditures”) and (ii) Non-Controlling Equity Sales, the
proceeds of which have not been used in connection with Permitted Acquisitions (such sum,
the “Adjusted Maximum Consolidated Capital Expenditures”); provided, the Adjusted
Maximum Consolidated Capital Expenditures for any Fiscal Year shall be increased by an
amount equal to the excess, if any, of the Adjusted Maximum Consolidated Capital
Expenditures for the previous Fiscal Year (including any Fiscal Year prior to the Effective
Date but without giving any effect to any adjustment in accordance with this proviso) over
the actual amount of Consolidated Capital Expenditures for such previous Fiscal Year, but in
no event more than the sum of (A) 50% of the Maximum Consolidated Capital Expenditures for
the previous Fiscal Year and (B) the proceeds of any Non-Controlling Equity Sales that have
not been used in such previous Fiscal Year:



	 	 	 	 	 
	 	 	Consolidated
	Fiscal Year	 	Capital Expenditures
	2006
	 	$	15,000,000	 
	2007 and thereafter
	 	$	15,000,000	 






     (e) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of
determining compliance with the financial covenants set forth in this Section 6.8 (but not
for purposes of determining the Applicable Margin), Consolidated Adjusted EBITDA shall be
calculated with respect to such period on a pro forma basis (including pro forma adjustments
arising out of events which are directly attributable to a specific transaction, are
factually supportable and are expected to have a continuing impact, in each case determined
on a basis consistent with GAAP, which would include cost savings resulting from head count
reduction, closure of facilities and similar restructuring charges, which pro forma
adjustments shall be certified by the chief financial officer of Holdings) using the
historical audited financial statements of any business so acquired or to be acquired or
sold or to be sold (or if no historical audited financial statements are available, such
other historical financial statements that have been prepared in accordance with GAAP) and
the consolidated financial statements of Holdings and its Subsidiaries which shall be
reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in
connection therewith, had been consummated or incurred or repaid at the beginning of such
period (and assuming that such Indebtedness bears interest during any portion of the
applicable measurement period prior to the relevant acquisition at the weighted average of
the interest rates applicable to outstanding Loans incurred during such period).



     6.9. Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation,
or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease or sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in
one transaction or a series of transactions, all or any part of its business, assets or property of
any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether
now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment and Consolidated Capital Expenditures in the
ordinary course of business) the business, property or fixed assets of, or stock or other evidence
of beneficial ownership of, any Person or any division or line of business or other business unit
of any Person, except:



     (a) any Credit Party or any Subsidiary of any Credit Party may be merged with or into
any other Credit Party or any Person that becomes a Credit Party in connection therewith, or
be liquidated,





65












 






wound up or dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of in one transaction or a series
of transactions, to any Credit Party or any Person that becomes a Credit Party in connection
therewith; provided, in the case of such a merger, any Credit Party or any Person
that becomes a Credit Party in connection therewith shall be the continuing or surviving
Person or, in the case of the Company, Company shall be the continuing or surviving Person;




     (b) sales or other dispositions of assets that do not constitute Asset Sales;




     (c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the
case of non-Cash proceeds consisting of notes or other debt Securities and valued at fair
market value in the case of other non-Cash proceeds) (i) are less than $1,000,000 with
respect to any single Asset Sale or series of related Asset Sales and (ii) when aggregated
with the proceeds of all other Asset Sales made within the same Fiscal Year, are less than
$2,000,000; provided, notwithstanding clauses (i) and (ii) above, so long as no
Default or Event of Default exists or would occur as a result of such Asset Sale, Company
may request and Administrative Agent may consent (in its sole discretion), no more than four
times during the term of this Agreement, to Asset Sales which are in excess of the amounts
in clauses (i) and (ii) above but less than $5,000,000; provided, further,
(1) the consideration received for such assets shall be in an amount at least equal to the
fair market value thereof (determined in good faith by the board of directors of such Credit
Party (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash, and
(3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);




     (d) disposals of obsolete, worn out or surplus property;




     (e) subject to pro forma compliance with a Leverage Ratio which is 25x more restrictive
than the then-applicable Leverage Ratio under Section 6.8(c) at such date of determination,
Permitted Acquisitions the consideration for which constitutes the sum of (i) an amount in
Cash (including (i) borrowings of Revolving Loans and New Term Loans and (ii) up to
$20,000,000 of Consolidated Excess Cash Flow) not to exceed $30,000,000 in the aggregate in
any Fiscal Year; provided, that the Company shall retain a balance of $5,000,000 of
any combination of unencumbered Cash (other than security interests pursuant to any Credit
Document and Permitted Liens) and availability under the Revolving Commitments, plus
(ii) an aggregate amount not to exceed $30,000,000 per Fiscal Year of the Capital Stock or
the net cash proceeds from the issuance of equity of Holdings, DTN Leasing or any of its or
their Subsidiaries; provided, such amount with respect to this clause (ii) for any
Fiscal Year shall be increased by an amount equal to the excess of such amount for the
previous Fiscal Year (including any Fiscal Year prior to the Effective Date but without
giving any effect to any carryover into such previous Fiscal Year pursuant to this clause
(ii)) over the actual amount of Permitted Acquisitions using the Capital Stock or the net
cash proceeds from the issuance of equity of Holdings, DTN Leasing or any of its or their
Subsidiaries for such previous Fiscal Year, plus (iii) an amount equal to the excess
Maximum Consolidated Capital Expenditures for the previous Fiscal Year (including any Fiscal
Year prior to the Effective Date, including any carryover amount permitted pursuant to
Section 6.8(d), over the Consolidated Capital Expenditures for such Fiscal Year,
plus (iv) the proceeds of any Non-Controlling Equity Sales to the extent not
utilized for Consolidated Capital Expenditures;




     (f) leases or sub-leases in the ordinary course of business of any Credit Party or any
Subsidiary of any Credit Party;




     (g) Investments made in accordance with Section 6.7;




     (h) Sale and lease-back transactions permitted pursuant to Section 6.11;




     (i) Company may sell the Capital Stock of iTradeNetwork, Inc. and SpeedNet Services,
LLC; and




     (j) DTN Leasing or any Subsidiary of DTN Leasing may be merged with or into DTN Leasing
or any other Subsidiary of DTN Leasing, or be liquidated, wound up or dissolved, or all or
any part



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of its business, property or assets may be conveyed, sold, leased, transferred or
otherwise disposed of, in one transaction or a series of transactions, to DTN Leasing or any
Subsidiary of DTN Leasing.



               Transactions permitted pursuant to one of the above subsections shall not be included in
determining the limitation contained in any other subsection of this Section 6.9.



     6.10. Disposal of Subsidiary Interests. Except for (i) any sale of all of its interests in
the Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.9, and
(ii) Liens provided under any of the Credit Documents, no Credit Party shall, nor shall it permit
any of its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber
or dispose of any Capital Stock of any of its Subsidiaries, except to qualify directors if required
by applicable law or to another Credit Party; or (b) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of any of
its Subsidiaries, except to another Credit Party (subject to the restrictions on such disposition
otherwise imposed hereunder), or to qualify directors if required by applicable law.



     6.11. Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell
or to transfer to any other Person (other than any Credit Party or any of its Subsidiaries), or (b)
intends to use for substantially the same purpose as any other property which has been or is to be
sold or transferred by such Credit Party to any Person (other than any Credit Party or any of its
Subsidiaries) in connection with such lease.



     6.12. Transactions with Shareholders and Affiliates. Except as otherwise permitted in this
Agreement, no Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 5% or more of any
class of Capital Stock of any Credit Party or with any Affiliate of Holdings, on terms that are
less favorable to Holdings or that Subsidiary, as the case may be, than those that might be
obtained at the time from a Person who is not such a holder or Affiliate; provided, the foregoing
restriction shall not apply to (a) any transaction between Company and any Guarantor Subsidiary;
(b) reasonable and customary fees paid to members of the board of directors (or similar governing
body) of Holdings and its Subsidiaries; (c) compensation arrangements for officers and other
employees of Holdings and its Subsidiaries entered into in the ordinary course of business; and (d)
transactions described in Schedule 6.12.



     6.13. Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall
it permit any of its Subsidiaries to, engage in any business other than (i) the businesses engaged
in by such Credit Party on the Closing Date and similar or related businesses and (ii) such other
lines of business as may be consented to by Requisite Lenders.



     6.14. Permitted Activities of Holdings. Neither Holdcos nor Holdings shall (a) incur,
directly or indirectly, any Indebtedness or any other obligation or liability whatsoever other than
the indebtedness permitted in Section 6.1 of this Agreement and the Other Credit Documents and; (b)
create or suffer to exist any Lien upon any property or assets now owned or hereafter acquired by
it other than the Liens created under the Collateral Documents to which it is a party or permitted
pursuant to Section 6.2; (c) engage in any business or activity or own any assets other than (i)
(x) in the case of Holdings, holding the Capital Stock of any Credit Party, (y) in the case of DTN
Information, holding the Capital Stock of any Credit Party and DTN Leasing and (z) in the case of
DTN LLC and DTN Corporation, holding the Capital Stock of any Credit Party, (ii) performing its
obligations and activities incidental thereto under the Credit Documents; and (iii) making
Restricted .Junior Payments and Investments to the extent permitted by this Agreement; (d)
consolidate with or merge with or into, or convey, transfer or lease all or substantially all its
assets to, any Person, except as permitted in Section 6.9; (e) sell or otherwise dispose of any
Capital Stock of any of its Subsidiaries, except DTN LLC may sell or otherwise transfer the Capital
Stock of DTN Information to another Credit Party or any Subsidiary of any Credit Party; (f) create
or acquire any Subsidiary or make or own any Investment in any Person other than Company or, to the
extent permitted by this Agreement, DTN Leasing or a Subsidiary that becomes a Credit Party
pursuant to Section 5.10 or (g) fail to hold itself out to the public as a legal entity separate
and distinct from all other Persons.



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     6.15. Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to
change its Fiscal Year-end from December 31st.



SECTION 7. GUARANTY




     7.1. Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors
jointly and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for
the ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations
when the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively,
the “Guaranteed Obligations”).



     7.2. Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii)
the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that
would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable
applicable provisions of state law; provided, solely for purposes of calculating the “Fair
Share Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section
7.2, any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing Guarantor.
“Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments
received on or before such date by such Contributing Guarantor from the other Contributing
Guarantors as contributions under this Section 7.2. The amounts payable as contributions hereunder
shall be determined as of the date on which the related payment or distribution is made by the
applicable Funding Guarantor. The allocation among Contributing Guarantors of their obligations as
set forth in this Section 7.2 shall not be construed in any way to limit the liability of any
Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 7.2.



     7.3. Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the
failure of Company to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to be
paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal to
the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid, accrued
and unpaid interest on such Guaranteed Obligations (including interest which, but for Company’s
becoming the subject of a case under the Bankruptcy Code, would have accrued on such Guaranteed
Obligations, whether or not a claim is allowed against Company for such interest in the related
bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as aforesaid.



     7.4. Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder
are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed



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Obligations. In furtherance of the foregoing and without limiting the generality thereof,
each Guarantor agrees as follows:





     (a) this Guaranty is a guaranty of payment when due and not of collectability. This
Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;




     (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of
Default notwithstanding the existence of any dispute between Company and any Beneficiary
with respect to the existence of such Event of Default;




     (c) the obligations of each Guarantor hereunder are independent of the obligations of
Company and the obligations of any other guarantor (including any other Guarantor) of the
obligations of Company, and a separate action or actions may be brought and prosecuted
against such Guarantor whether or not any action is brought against Company or any of such
other guarantors and whether or not Company is joined in any such action or actions;




     (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations
shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion
of the Guaranteed Obligations which has not been paid. Without limiting the generality of
the foregoing, if Administrative Agent is awarded a judgment in any suit brought to enforce
any Guarantor’s covenant to pay a portion of the Guaranteed Obligations, such judgment shall
not be deemed to release such Guarantor from its covenant to pay the portion of the
Guaranteed Obligations that is not the subject of such suit, and such judgment shall not,
except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other
Guarantor’s liability hereunder in respect of the Guaranteed Obligations;




     (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand
and without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or
otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance
with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating
thereto and/or subordinate the payment of the same to the payment of any other obligations;
(iii) request and accept other guaranties of the Guaranteed Obligations and take and hold
security for the payment hereof or the Guaranteed Obligations; (iv) release, surrender,
exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with
or without consideration, any security for payment of the Guaranteed Obligations, any other
guaranties of the Guaranteed Obligations, or any other obligation of any Person (including
any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any
security now or hereafter held by or for the benefit of such Beneficiary in respect hereof
or the Guaranteed Obligations and direct the order or manner of sale thereof, or exercise
any other right or remedy that such Beneficiary may have against any such security, in each
case as such Beneficiary in its discretion may determine consistent herewith or the
applicable Hedge Agreement and any applicable security agreement, including foreclosure on
any such security pursuant to one or more judicial or nonjudicial sales, whether or not
every aspect of any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation or other right or
remedy of any Guarantor against Company or any security for the Guaranteed Obligations; and
(vi) exercise any other rights available to it under the Credit Documents or any Hedge
Agreements; and




     (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation, impairment, discharge or
termination for any reason (other than payment in full of the Guaranteed Obligations),
including the occurrence of any of the following, whether or not any Guarantor shall have
had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or
agreement or election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy (whether arising under the Credit Documents or any Hedge
Agreements, at law, in equity or otherwise) with respect to the Guaranteed Obligations or
any agreement relating thereto, or with respect to any other guaranty of or security for the
payment of the Guaranteed Obligations; (ii) any



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rescission, waiver, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including provisions relating to events of default) hereof, any
of the other Credit Documents, any of the Hedge Agreements or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the Guaranteed
Obligations, in each case whether or not in accordance with the terms hereof or such Credit
Document, such Hedge Agreement or any agreement relating to such other guaranty or security;
(iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found
to be illegal, invalid or unenforceable in any respect; (iv) the application of payments
received from any source (other than payments received pursuant to the other Credit
Documents or any of the Hedge Agreements or from the proceeds of any security for the
Guaranteed Obligations, except to the extent such security also serves as collateral for
indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other
than the Guaranteed Obligations, even though any Beneficiary might have elected to apply
such payment to any part or all of the Guaranteed Obligations; (v) any Beneficiary’s consent
to the change, reorganization or termination of the corporate structure or existence of any
Credit Party and to any corresponding restructuring of the Guaranteed Obligations; (vi) any
failure to perfect or continue perfection of a security interest in any collateral which
secures any of the Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims
which Company may allege or assert against any Beneficiary in respect of the Guaranteed
Obligations, including failure of consideration, breach of warranty, payment, statute of
frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act
or thing or omission, or delay to do any other act or thing, which may or might in any
manner or to any extent vary the risk of any Guarantor as an obligor in respect of the
Guaranteed Obligations.



     7.5. Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Company, any other guarantor (including any other Guarantor) of
the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held
from Company, any such other guarantor or any other Person, (iii) proceed against or have resort to
any balance of any Deposit Account or credit on the books of any Beneficiary in favor of Company or
any other Person, or (iv) pursue any other remedy in the power of any Beneficiary whatsoever; (b)
any defense arising by reason of the incapacity, lack of authority or any disability or other
defense of Company or any other Guarantor including any defense based on or arising out of the lack
of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument
relating thereto or by reason of the cessation of the liability of Company or any other Guarantor
from any cause other than payment in full of the Guaranteed Obligations; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must be neither larger in
amount nor in other respects more burdensome than that of the principal; (d) any defense based upon
any Beneficiary’s errors or omissions in the administration of the Guaranteed Obligations, except
behavior which amounts to bad faith; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any legal or equitable
discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that
any Beneficiary protect, secure, perfect or insure any security interest or lien or any property
subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of
dishonor and notices of any action or inaction, including acceptance hereof, notices of default
hereunder, the Hedge Agreements or any agreement or instrument related thereto, notices of any
renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto,
notices of any extension of credit to Company and notices of any of the matters referred to in
Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that may be
derived from or afforded by law which limit the liability of or exonerate guarantors or sureties,
or which may conflict with the terms hereof.



     7.6. Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations
shall have been indefeasibly paid in full and the Revolving Commitments shall have terminated and
all Letters of Credit shall have expired or been cancelled, each Guarantor hereby waives any claim,
right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against
Company or any other Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute, under common law or otherwise and including
without limitation (a) any right of subrogation, reimbursement or indemnification that such
Guarantor now has or may hereafter have against Company with respect to the Guaranteed Obligations,
(b) any right to enforce, or to participate in, any claim, right or remedy that any Beneficiary now
has or may hereafter have against Company,



70









 




and (c) any benefit of, and any right to participate in, any collateral or security now or
hereafter held by any Beneficiary. In addition, until the Guaranteed Obligations shall have been
indefeasibly paid in full and the Revolving Commitments shall have terminated and all Letters of
Credit shall have expired or been cancelled, each Guarantor shall withhold exercise of any right of
contribution such Guarantor may have against any other guarantor (including any other Guarantor) of
the Guaranteed Obligations, including, without limitation, any such right of contribution as
contemplated by Section 7.2. Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement, indemnification and
contribution as set forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any rights of subrogation, reimbursement or indemnification such Guarantor
may have against Company or against any collateral or security, and any rights of contribution such
Guarantor may have against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any Beneficiary may have
in any such collateral or security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations
shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative
Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.




     7.7. Subordination of Other Obligation. Any Indebtedness of Company or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.



     7.8. Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations shall have been paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired Or been cancelled. Each
Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.



     7.9. Authority of Guarantors or Company. It is not necessary for any Beneficiary to inquire
into the capacity or powers of any Guarantor or Company or the officers, directors or any agents
acting or purporting to act on behalf of any of them.



     7.10. Financial Condition of Company. Any Credit Extension may be made to Company or
continued from time to time, and any Hedge Agreements may be entered into from time to time, in
each case without notice to or authorization from any Guarantor regardless of the financial or
other condition of Company at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the
financial condition of Company. Each Guarantor has adequate means to obtain information from
Company on a continuing basis concerning the financial condition of Company and its ability to
perform its obligations under the Credit Documents and the Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial condition of Company and
of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any
matter, fact or thing relating to the business, operations or conditions of Company now known or
hereafter known by any Beneficiary.



     7.11. Bankruptcy, etc. (a) So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of Administrative Agent acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in commencing (other than
filing a proof of claim) any bankruptcy, reorganization or insolvency case or proceeding of or
against Company or any other Guarantor. The obligations of Guarantors hereunder shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership,
reorganization, liquidation or arrangement of Company or any other Guarantor or by any defense
which Company or



71









 




any other Guarantor may have by reason of the order, decree or decision of any court or
administrative body resulting from any such proceeding.





     (b) Each Guarantor acknowledges and agrees that any interest on any portion of the
Guaranteed Obligations which accrues after the commencement of any case or proceeding
referred to in clause (a) above (or, if interest on any portion of the Guaranteed
Obligations ceases to accrue by operation of law by reason of the commencement of such case
or proceeding, such interest as would have accrued on such portion of the Guaranteed
Obligations if such case or proceeding had not been commenced) shall be included in the
Guaranteed Obligations because it is the intention of Guarantors and Beneficiaries that the
Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be
determined without regard to any rule of law or order which may relieve Company of any
portion of such Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy,
receiver, debtor in possession, assignee for the benefit of creditors or similar Person to
pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.




     (c) In the event that all or any portion of the Guaranteed Obligations are paid by
Company, the obligations of Guarantors hereunder shall continue and remain in full force and
effect or be reinstated, as the case may be, in the event that all or any part of such
payment(s) are rescinded or recovered directly or indirectly from any Beneficiary as a
preference, fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guaranteed Obligations for all purposes hereunder.



     7.12. Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale.



SECTION 8. EVENTS OF DEFAULT




     8.1. Events of Default. If any one or more of the following conditions or events shall occur:




     (a) Failure to Make Payments When Due. Failure by Company to pay (i) when due
any installment of principal of any Loan, whether at stated maturity, by acceleration, by
notice of voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any
amount payable to Issuing Bank in reimbursement of any drawing under a Letter of Credit; or
(iii) any interest on any Loan or any fee or any other amount due hereunder within five days
after the date due; or




     (b) Default in Other Agreements. (i) Failure of any Credit Party to pay when
due any principal of or interest on or any other amount payable in respect of one or more
items of Indebtedness (other than Indebtedness referred to in Section 6.1(a) or (b)) in an
individual principal amount of $2,000,000 or more or with an aggregate principal amount of
$4,000,000 or more, in each case beyond the grace period, if any, provided therefor; or (ii)
breach or default by any Credit Party with respect to any other material term of (1) one or
more items of Indebtedness in the individual or aggregate principal amounts referred to in
clause (i) above or (2) any loan agreement, mortgage, indenture or other agreement relating
to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided
therefor, if the effect of such breach or default is to cause, or to permit the holder or
holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause,
that Indebtedness to become or be declared due and payable (or redeemable) prior to its
stated maturity or the stated maturity of any underlying obligation, as the case may be; or




     (c) Breach of Certain Covenants. Failure of any Credit Party to perform or
comply with any term or condition contained in Section 2.6, Section 5.2(i) or Section 6; or



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     (d) Breach of Representations, etc. Any representation, warranty,
certification or other statement made or deemed made by any Credit Party in any Credit
Document or in any statement or certificate at any time given by any Credit Party in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false in any
material respect as of the date made or deemed made; or




     (e) Other Defaults Under Credit Documents. Any Credit Party shall default in
the performance of or compliance with any term contained herein or any of the other Credit
Documents, other than any such term referred to in any other Section of this Section 8.1,
and such default shall not have been remedied or waived within thirty days after the earlier
of (i) an officer of such Credit Party becoming aware of such default or (ii) receipt by
Company of notice from Administrative Agent or any Lender of such default; or




     (f) Involuntary Bankruptcy: Appointment of Receiver, etc.. (i) A court of
competent jurisdiction shall enter a decree or order for relief in respect of any Credit
Party in an involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree or order is
not stayed; or any other similar relief shall be granted under any applicable federal or
state law; or (ii) an involuntary case shall be commenced against any Credit Party under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over any Credit Party, or over all or a substantial part of its
property, shall have been entered; or there shall have occurred the involuntary appointment
of an interim receiver, trustee or other custodian of any Credit Party for all or a
substantial part of its property; or a warrant of attachment, execution or similar process
shall have been issued against any substantial part of the property of any Credit Party, and
any such event described in this clause (ii) shall continue for ninety days without having
been dismissed, bonded or discharged; or




     (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Any Credit Party
shall have an order for relief entered with respect to it or shall commence a voluntary case
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary ease, under any
such law, or shall consent to the appointment of or taking possession by a receiver, trustee
or other custodian for all or a substantial part of its property; or any Credit Party shall
make any assignment for the benefit of creditors; or (ii) any Credit Party shall be unable,
or shall fail generally, or shall admit in writing its inability, to pay its debts as such
debts become due; or the board of directors (or similar governing body) of any Credit Party
(or any committee thereof) shall adopt any resolution or otherwise authorize any action to
approve any of the actions referred to herein or in Section 8.1(f); or




     (h) Judgments and Attachments. Any money judgment, writ or warrant of
attachment or similar process involving (i) in any individual case an amount in excess of
$2,000,000 or (ii) in the aggregate at any time an amount in excess of $4,000,000 (in either
case to the extent not adequately covered by insurance as to which a solvent and
unaffiliated insurance company has acknowledged coverage) shall be entered or filed against
any Credit Party or any of their respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of sixty days (or in any event later than five days prior
to the date of any proposed sale thereunder); or




     (i) Dissolution. Any order, judgment or decree shall be entered against any
Credit Party decreeing the dissolution or split up of such Credit Party and such order shall
remain undischarged or unstayed for a period in excess of sixty days; or




     (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events
which individually or in the aggregate results in or might reasonably be expected to result
in liability of any Credit Party or any of their respective ERISA Affiliates in excess of
$2,000,000 during the term hereof; or (ii) there exists any fact or circumstance that
reasonably could be expected to result in the imposition of a Lien or security interest
under Section 412(n) of the Internal Revenue Code or under ERISA.



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     (k) Change of Control. A Change of Control shall occur; or




     (l) Guaranties, Collateral Documents and other Credit Documents. At any time
after the execution and delivery thereof, (i) the Guaranty for any reason, other than the
satisfaction in full of all Obligations, shall cease to be in full force and effect (other
than in accordance with its terms) or shall be declared to be null and void or any Guarantor
shall repudiate its obligations thereunder, (ii) this Agreement or any Collateral Document
ceases to be in full force and effect (other than by reason of a release of Collateral in
accordance with the terms hereof or thereof or the satisfaction in full of the Obligations
in accordance with the terms hereof) or shall be declared null and void, or Collateral Agent
shall not have or shall cease to have a valid and perfected Lien in any Collateral purported
to be covered by the Collateral Documents with the priority required by the relevant
Collateral Document, in each case for any reason other than the failure of Collateral Agent
or any Secured Party to take any action within its control, or (iii) any Credit Party shall
contest the validity or enforceability of any Credit Document in writing or deny in writing
that it has any further liability, including with respect to future advances by Lenders,
under any Credit Document to which it is a party or shall contest the validity or perfection
of any Lien in any Collateral purported to be covered by the Collateral Documents;


THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon notice to Company by Administrative Agent, (A) the
Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation
of Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the
following shall immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly waived by each Credit
Party: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal
to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding
(regardless of whether any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other documents or certificates required
to draw under such Letters of Credit) less amounts paid pursuant to (D), and (III) all other
Obligations; provided, the foregoing shall not affect in any way the obligations of Lenders
under Section 2.3(b)(v) or Section 2.4(e); (C) Administrative Agent may cause Collateral Agent to
enforce any and all Liens and security interests created pursuant to Collateral Documents; and (D)
except to the extent paid pursuant to (B)(II), Administrative Agent shall direct Company to pay
(and Company hereby agrees upon receipt of such notice, or upon the occurrence of any Event of
Default specified in Section 8.1(f) and (g) to pay) to Administrative Agent such additional amounts
of cash as reasonably requested by Issuing Bank, to be held as security for Company’s reimbursement
Obligations in respect of Letters of Credit then outstanding not to exceed the Letter of Credit
Usage at such time.




SECTION 9. AGENTS




     9.1. Appointment of Agents. GSCP is hereby appointed Syndication Agent hereunder, and each
Lender hereby authorizes GSCP to act as Syndication Agent in accordance with the terms hereof and
the other Credit Documents. GECC is hereby appointed Administrative Agent and Collateral Agent
hereunder and under the other Credit Documents and each Lender hereby authorizes GECC to act as
Administrative Agent and Collateral Agent in accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act in its capacity as such upon the express conditions
contained herein and the other Credit Documents, as applicable. The provisions of this Section 9
are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a
third party beneficiary of any of the provisions thereof. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust with or for any
Credit Party. The Syndication Agent without consent of or notice to any party hereto, may assign
any and all of its rights or obligations hereunder to any of its Affiliates. As of the Effective
Date, GSCP, in its capacity as Syndication Agent shall not have any obligations but shall be
entitled to all benefits of this Section 9.



     9.2. Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on
such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and



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responsibilities that are expressly specified herein and the other Credit Documents. Each
Agent may exercise such powers, rights and remedies and perform such duties by or through its
agents or employees. No Agent shall have, by reason hereof or any of the other Credit Documents, a
fiduciary relationship in respect of any Lender; and nothing herein or any of the other Credit
Documents, expressed or implied, is intended to or shall be so construed as to impose upon any
Agent any obligations in respect hereof or any of the other Credit Documents except as expressly
set forth herein or therein.




     9.3. General Immunity.




     (a) No Responsibility for Certain Matters. No Agent shall be responsible to
any Lender for the execution, effectiveness, genuineness, validity, enforceability,
collectability or sufficiency hereof or any other Credit Document or for any
representations, warranties, recitals or statements made herein or therein or made in any
written or oral statements or in any financial or other statements, instruments, reports or
certificates or any other documents furnished or made by any Agent to Lenders or by or on
behalf of any Credit Party, and Lender or any person providing the Settlement Service to any
Agent or any Lender in connection with the Credit Documents and the transactions
contemplated thereby or for the financial condition or business affairs of any Credit Party
or any other Person liable for the payment of any Obligations, nor shall any Agent be
required to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Credit Documents or
as to the use of the proceeds of the Loans or as to the existence or possible existence of
any Event of Default or Default or to make any disclosures with respect to the foregoing.
Anything contained herein to the contrary notwithstanding, Administrative Agent shall not
have any liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the component amounts thereof.




     (b) Exculpatory Provisions. No Agent nor any of its officers, partners,
directors, employees or agents shall be liable to Lenders for any action taken or omitted by
any Agent under or in connection with any of the Credit Documents except to the extent
caused by such Agent’s gross negligence or willful misconduct. Each Agent shall be entitled
to refrain from any act or the taking of any action (including the failure to take an
action) in connection herewith or any of the other Credit Documents or from the exercise of
any power, discretion or authority vested in it hereunder or thereunder unless and until
such Agent, in the case of any Agent other than Collateral Agent, shall have received
instructions in respect thereof from Requisite Lenders (or such other Lenders as may be
required to give such instructions under Section 10.5) or, in the case of Collateral Agent,
in accordance with the applicable Collateral Document, and, upon receipt of such
instructions from Requisite Lenders (or such other Lenders, as the case may be), or in
accordance with the applicable Collateral Document, as the case may be, such Agent shall be
entitled to act or (where so instructed) refrain from acting, or to exercise such power,
discretion or authority, in accordance with such instructions. In no event shall any Agent
be liable for punitive, special, consequential, incidental, exemplary or other similar
damages. Without prejudice to the generality of the foregoing, (i) each Agent shall be
entitled to rely, and shall be fully protected in relying, upon any communication,
instrument or document believed by it to be genuine and correct and to have been signed or
sent by the proper Person or Persons, including any Settlement Confirmation or other
communication issues by any Settlement Service, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who may be attorneys for
Holdings and its Subsidiaries), accountants, experts and other professional advisors
selected by it; and (ii) no Lender shall have any right of action whatsoever against any
Agent as a result of such Agent acting or (where so instructed) refraining from acting
hereunder or under any of the other Credit Documents in accordance with the instructions of
Requisite Lenders (or such other Lenders as may be required to give such instructions under
Section 10.5) or, in the case of Collateral Agent, in accordance with the applicable
Collateral Document.




     (c) Delegation of Duties. Administrative Agent may perform any and all of its
duties and exercise its rights and powers under this Agreement or under any other Credit
Document by or through any one or more sub-agents appointed by Administrative Agent in
consultation with the Company. Administrative Agent and any such sub-agent may perform any
and all of its duties and exercise its rights and powers by or through their respective
Affiliates. The exculpatory, indemnification and other provisions of this Section 9.3 and
of Section 9.6 shall apply to any the Affiliates of Administrative Agent and shall apply to
their respective activities in connection with the syndication of the credit facilities



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provided for herein as well as activities as Administrative Agent. All of the rights,
benefits, and privileges (including the exculpatory and indemnification provisions) of this
Section 9.3 and of Section 9.6 shall apply to any such sub-agent and to the Affiliates of
any such sub-agent, and shall apply to their respective activities as sub-agent as if such
sub-agent and Affiliates were named herein. Notwithstanding anything herein to the
contrary, with respect to each sub-agent appointed by the Administrative Agent, (i) such
sub-agent shall be a third party beneficiary under this Agreement with respect to all such
rights, benefits and privileges (including exculpatory rights and rights to indemnification)
and shall have all of the rights and benefits of a third party beneficiary, including an
independent right of action to enforce such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) directly, without the consent or joinder
of any other Person, against any or all of the Credit Parties and the Lenders, (ii) such
rights, benefits and privileges (including exculpatory rights and rights to indemnification)
shall not be modified or amended without the consent of such sub-agent, and (iii) such
sub-agent shall only have obligations to Administrative Agent and not to any Credit Party,
Lender or any other Person and no Credit Party, Lender or any other Person shall have any
rights, directly or indirectly, as a third party beneficiary or otherwise, against such
sub-agent.



     9.4. Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. With respect to its participation in the Loans and the
Letters of Credit, each Agent shall have the same rights and powers hereunder as any other Lender
and may exercise the same as if it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include
each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend
money to, own securities of, and generally engage in any kind of banking, trust, financial advisory
or other business with Holdings or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Company for services in
connection herewith and otherwise without having to account for the same to Lenders.



     9.5. Lenders’ Representations, Warranties and Acknowledgment.




     (a) Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Holdings and its Subsidiaries in
connection with Credit Extensions hereunder and that it has made and shall continue to make
its own appraisal of the creditworthiness of Holdings and its Subsidiaries. No Agent shall
have any duty or responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any Lender with any
credit or other information with respect thereto, whether coming into its possession before
the making of the Loans or at any time or times thereafter, and no Agent shall have any
responsibility with respect to the accuracy of or the completeness of any information
provided to Lenders.




     (b) Each Lender, by delivering its signature page to this Agreement, an Assignment
Agreement or a Joinder Agreement and funding its Tranche C Term Loan on the Effective Date
or by the funding of any Revolving Loans or New Term Loans shall be deemed to have
acknowledged receipt of, and consented to and approved, each Credit Document and each other
document required to be approved by any Agent, Requisite Lenders or Lenders, as applicable
on the Effective Date or as of the date of such assignment or funding of such New Term
Loans.



     9.6. Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees
to indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties hereunder or under the other
Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out
of this Agreement or the other Credit Documents; provided, no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful
misconduct. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such
Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional



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indemnity is furnished; provided, in no event shall this sentence require any Lender
to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and
provided further, this sentence shall not be deemed to require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.




     9.7. Successor Administrative Agent, Collateral Agent and Swing Line Lender. Administrative
Agent and/or Collateral Agent may resign at any time by giving thirty days’ prior written notice
thereof to Lenders and Company, and Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to Company and Administrative
Agent and signed by Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five Business Days’ notice to Company, to appoint a
successor Administrative Agent and/or Collateral Agent, as applicable, reasonably acceptable to
Company. Upon the acceptance of any appointment as Administrative Agent and/or Collateral Agent,
as applicable, hereunder by a successor Administrative Agent, and/or Collateral Agent, as
applicable, that successor Administrative Agent and/or Collateral Agent, as applicable, shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring or removed Administrative Agent and/or Collateral Agent, as applicable, and the retiring
or removed Administrative Agent and/or Collateral Agent, as applicable, shall promptly (i) transfer
to such successor Administrative Agent and/or Collateral Agent, as applicable, all sums, Securities
and other items of Collateral held under the Collateral Documents, together with all records and
other documents necessary or appropriate in connection with the performance of the duties of the
successor Administrative Agent and/or Collateral Agent, as applicable, under the Credit Documents,
and (ii) execute and deliver to such successor Administrative Agent and/or Collateral Agent, as
applicable, such amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor Administrative Agent
and/or Collateral Agent, as applicable, of the security interests created under the Collateral
Documents, whereupon such retiring or removed Administrative Agent and/or Collateral Agent, as
applicable, shall be discharged from its duties and obligations hereunder. After any retiring or
removed Administrative Agent’s and/or Collateral Agent’s, as applicable, resignation or removal
hereunder as Administrative Agent and/or Collateral Agent’s, as applicable, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent and/or Collateral Agent, as applicable, hereunder. Any resignation or
removal of GECC or its successor as Administrative Agent pursuant to this Section shall also
constitute the resignation or removal of GECC or its successor as Swing Line Lender, and any
successor Administrative Agent, appointed pursuant to this Section shall, upon its acceptance of
such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event
(a) Company shall prepay any outstanding Swing Line Loans made by the retiring or removed
Administrative Agent, in its capacity as Swing Line Lender, (b) upon such prepayment, the retiring
or removed Administrative Agent and Swing Line Lender shall surrender any Swing Line Note held by
it to Company for cancellation, and (c) Company shall issue, if so requested by successor
Administrative Agent and Swing Line Loan Lender, a new Swing Line Note to the successor
Administrative Agent and Swing Line Lender, in the principal amount of the Swing Line Loan Sublimit
then in effect and with other appropriate insertions.



     9.8. Collateral Documents and Guaranty.




     (a) Agents under Collateral Documents and Guaranty. Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, to be the agent for and representative of Lenders with respect
to the Guaranty, the Collateral and the Collateral Documents. Subject to Section 10.5,
without further written consent or authorization from Lenders, Administrative Agent or
Collateral Agent, as applicable may execute any documents or instruments necessary to (i) in
connection with a sale or disposition of assets permitted by this Agreement, release any
Lien encumbering any item of Collateral that is the subject of such sale or other
disposition of assets or to which Requisite Lenders (or such other Lenders as may be
required to give such consent under Section 10.5) have otherwise consented or (ii) release
any Guarantor from the Guaranty pursuant to Section 7.12 or with respect to which Requisite
Lenders (or such other Lenders as may be required to give such consent under Section 10.5)
have otherwise consented.




     (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in
any of the Credit Documents to the contrary notwithstanding, Company, Administrative Agent,
Collateral Agent and



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each Lender hereby agree that (i) no Lender shall have any right individually to
realize upon any of the Collateral or to enforce the Guaranty, it being understood and
agreed that all powers, rights and remedies hereunder may be exercised solely by
Administrative Agent, on behalf of Lenders in accordance with the terms hereof and all
powers, rights and remedies under the Collateral Documents may be exercised solely by
Collateral Agent, and (ii) in the event of a foreclosure by Collateral Agent on any of the
Collateral pursuant to a public or private sale, Collateral Agent or any Lender may be the
purchaser of any or all of such Collateral at any such sale and Collateral Agent, as agent
for and representative of Secured Parties (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree in writing)
shall be entitled, for the purpose of bidding and making settlement or payment of the
purchase price for all or any portion of the Collateral sold at any such public sale, to use
and apply any of the Obligations as a credit on account of the purchase price for any
collateral payable by Collateral Agent at such sale.



SECTION 10. MISCELLANEOUS




     10.1. Notices.




     (a) Notices Generally. Any notice or other communication herein required or
permitted to be given to a Credit Party, Syndication Agent, Collateral Agent, Administrative
Agent, Swing Line Lender or Issuing Bank, shall be sent to such Person’s address as set
forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender,
the address as indicated on Appendix B or otherwise indicated to Administrative Agent in
writing. Except as otherwise set forth in paragraph (b) below, each notice hereunder shall
be in writing and may be personally served, telexed or sent by telefacsimile or United
States mail, certified return receipt requested, or courier service and shall be deemed to
have been given when delivered in person or by courier service and signed for against
receipt thereof, upon receipt of telefacsimile or telex, or three Business Days after
depositing it in the United States mail with postage prepaid and properly addressed;
provided, no notice to any Agent shall be effective until received by such Agent; provided
further, any such notice or other communication shall at the request of the Administrative
Agent be provided to any sub-agent appointed pursuant to Section 9.3(c) hereto as designated
by the Administrative Agent from time to time.




     (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
Administrative Agent, provided that the foregoing shall not apply to notices to any
Lender or the Issuing Bank pursuant to Section 2 if such Lender or the Issuing Bank, as
applicable, has notified Administrative Agent that it is incapable of receiving notices
under such Section by electronic communication. Administrative Agent or 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 Administrative
Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address
shall be deemed received upon the sender’s receipt of an acknowledgement from the intended
recipient (such as by the “return receipt requested” function, as available, return e-mail
or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next
Business Day for the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient
at its e-mail address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address therefor.



     10.2. Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (a) all the actual and reasonable costs and expenses of preparation
of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b)
all the costs of furnishing all opinions by counsel for Company and the other Credit Parties; (c)
the reasonable fees, expenses and disbursements of counsel to each of the Agents in connection with
the negotiation, preparation, execution and administration of the Credit Documents and any
consents, amendments, waivers or other modifications thereto and any other documents or matters
requested by Company; (d) all the actual and reasonable out-of-pocket costs and expenses of
creating and



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perfecting Liens in favor of Collateral Agent, for the benefit of Lenders pursuant hereto,
including filing and recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums and reasonable fees, expenses and disbursements of counsel to each Agent
and of counsel providing any opinions that any Agent or Requisite Lenders may reasonably request in
respect of the Collateral or the Liens created pursuant to the Collateral Documents; (e) all the
actual and reasonable out-of-pocket costs, fees, expenses and disbursements of any auditors,
accountants, consultants or appraisers retained by Collateral Agent; (f) all the actual and
reasonable out-of-pocket costs and expenses of Collateral Agent (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained
by Collateral Agent and its counsel) in connection with the custody or preservation of any of the
Collateral; (g) all other actual and reasonable costs and expenses incurred by each Agent in
connection with the syndication of the Loans and Commitments and the negotiation, preparation and
execution of the Credit Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (h) after the occurrence of a Default or an
Event of Default, all reasonably out-of-pocket costs and expenses, including reasonable attorneys’
fees and costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of or
in collecting any payments due from any Credit Party hereunder or under the other Credit Documents
by reason of such Default or Event of Default (including in connection with the sale of, collection
from, or other realization upon any of the Collateral or the enforcement of the Guaranty) or in
connection with any refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a “work-out” or pursuant to any insolvency or bankruptcy cases or proceedings.




     10.3. Indemnity.




     (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend
(subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent
and Lender and the officers, partners, members, directors, trustees, employees, agents,
sub-agents and Affiliates of each Agent and each Lender (each, an “Indemnitee”), from and
against any and all Indemnified Liabilities; provided, no Credit Party shall have
any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to
the extent such Indemnified Liabilities arise from the gross negligence or willful
misconduct of that Indemnitee. To the extent that the undertakings to defend, indemnify,
pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, the applicable Credit Party
shall contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by
Indemnitees or any of them.




     (b) To the extent permitted by applicable law, no Credit Party shall assert, and each
Credit Party hereby waives, any claim against each Lender, each Agent and their respective
Affiliates, directors, employees, attorneys, agents or sub-agents, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to direct or
actual damages) (whether or not the claim therefor is based on contract, tort or duty
imposed by any applicable legal requirement) arising out of, in connection with, arising out
of, as a result of, or in any way related to, this Agreement or any Credit Document or any
agreement or instrument contemplated hereby or thereby or referred to herein or therein, the
transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or
any act or omission or event occurring in connection therewith, and Holdings and Company
hereby waives, releases and agrees not to sue upon any such claim or any such damages,
whether or not accrued and whether or not known or suspected to exist in its favor.



     10.4. Set-Off. In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of Default each
Lender is hereby authorized by each Credit Party at any time or from time to time subject to the
consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without
notice to any Credit Party or to any other Person (other than Administrative Agent), any such
notice being hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether
matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held
or owing by such Lender to or for the credit or the account of any Credit Party against and on
account of the obligations and liabilities of any Credit Party to such Lender hereunder, the
Letters of Credit and participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected hereto, the



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Letters of Credit and participations therein or with any other Credit Document, irrespective
of whether or not (a) such Lender shall have made any demand hereunder or (b) the principal of or
the interest on the Loans or any amounts in respect of the Letters of Credit or any other amounts
due hereunder shall have become due and payable pursuant to Section 2 and although such obligations
and liabilities, or any of them, may be contingent or unmatured.




     10.5. Amendments and Waivers.




     (a) Requisite Lenders’ Consent. Subject to the additional requirements of
Sections 10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall in any event be effective without the written concurrence of the Requisite
Lenders.




     (b) Affected Lenders’ Consent. Without the written consent of each Lender
(other than a Defaulting Lender) that would be affected thereby, no amendment, modification,
termination, or consent shall be effective if the effect thereof would:




     (i) extend the scheduled final maturity of any Loan or Note;




     (ii) waive, reduce or postpone any scheduled repayment (but not prepayment);




     (iii) extend the stated expiration date of any Letter of Credit beyond the
Revolving Commitment Termination Date;




     (iv) reduce the rate of interest on any Loan (other than any waiver of any
increase in the interest rate applicable to any Loan pursuant to Section 2.10) or
any fee or premium payable hereunder;




     (v) extend the time for payment of any such interest or fees;




     (vi) reduce the principal amount of any Loan or any reimbursement obligation in
respect of any Letter of Credit;




     (vii) amend, modify, terminate or waive any provision of Section 2.13(b)(ii),
this Section 10.5(b), or Section 10.5(c) or any other provision of this Agreement
that expressly provides that the consent of all Lenders is required;




     (viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;
provided, with the consent of Requisite Lenders, additional extensions of
credit pursuant hereto may be included in the determination of “Requisite Lenders”
or “Pro Rata Share” on substantially the same basis as the Tranche C Term Loan
Commitments, the Tranche C Term Loans, the Revolving Commitments and the Revolving
Loans are included on the Effective Date;




     (ix) release all or substantially all of the Collateral or all or any material
Guarantor from the Guaranty except as expressly provided in the Credit Documents; or




     (x) consent to the assignment or transfer by any Credit Party of any of its
rights and obligations under any Credit Document.




     (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party
therefrom, shall:




     (i) increase any Commitment of any Lender over the amount thereof then in
effect without the consent of such Lender; provided, no amendment,
modification or waiver of any condition precedent, covenant, Default or Event of
Default shall constitute an increase in any Commitment of any Lender;



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     (ii) amend, modify, terminate or waive any provision hereof relating to the
Swing Line Sublimit or the Swing Line Loans without the consent of Swing Line
Lender;




     (iii) alter the required application of any repayments or prepayments as
between Classes pursuant to Section 2.15 without the consent of Lenders holding more
than 50% of each Class which is being allocated a lesser repayment or prepayment as
a result thereof; provided, Requisite Lenders may waive, in whole or in
part, any prepayment so long as the application, as between Classes, of any portion
of such prepayment which is still required to be made is not altered;




     (iv) amend, modify, terminate or waive any obligation of Lenders relating to
the purchase of participations in Letters of Credit as provided in Section 2.4(e)
without the written consent of Administrative Agent and of Issuing Bank; or




     (v) amend, modify, terminate or waive any provision of Section 9 as the same
applies to any Agent, or any other provision hereof as the same applies to the
rights or obligations of any Agent, in each case without the consent of such Agent.




     (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of such Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No notice to
or demand on any Credit Party in any case shall entitle any Credit Party to any other or
further notice or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this Section 10.5 shall be
binding upon each Lender at the time outstanding, each future Lender and, if signed by a
Credit Party, on such Credit Party.



     10.6. Successors and Assigns; Participations.




     (a) Generally. This Agreement shall be binding upon the parties hereto and
their respective successors and assigns and shall inure to the benefit of the parties hereto
and the successors and assigns of Lenders. No Credit Party’s rights or obligations
hereunder nor any interest therein may be assigned or delegated by any Credit Party to any
Person (other than another Credit Party) without the prior written consent of all Lenders.
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 and, to the extent expressly contemplated hereby, Affiliates of each of the Agents
and Lenders) any legal or equitable right, remedy or claim under or by reason of this
Agreement.




     (b) Register. Company, Administrative Agent and Lenders shall deem and treat
the Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and (except for a Related
Lender Assignment) no assignment or transfer of any such Commitment or Loan shall be
effective, in each case, unless and until recorded in the Register following receipt of (x)
a written or electronic confirmation of an assignment issued by a Settlement Service
pursuant to Section 10.6(d) (a “Settlement Confirmation”) or (y) an Assignment Agreement
effecting the assignment or transfer thereof, in each case, as provided in Section 10.6(d).
Except in the case of a Related Lender Assignment, each assignment shall be recorded in the
Register on the Business Day the Settlement Confirmation or Assignment Agreement is received
by the Administrative Agent, if received by 12:00 noon New York City time, and on the
following Business Day if received after such time, prompt notice thereof shall be provided
to Company and a copy of such Assignment Agreement or Settlement Confirmation shall be
maintained, as applicable. Except in the case of a Related Lender Assignment, the date of
such recordation of a transfer shall be referred to herein as the “Assignment Effective
Date.” Any request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.



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     (c) Right to Assign. Each Lender shall have the right at any time to sell,
assign or transfer all or a portion of its rights and obligations under this Agreement,
including, without limitation, all or a portion of its Commitment or Loans owing to it or
other Obligation (provided, however, that, except in the case of a Related
Lender Assignment, each such assignment shall be of a uniform, and not varying, percentage
of all rights and obligations under and in respect of any Loan and any related Commitments):




     (i) to any Person meeting the criteria of clause (i) of the definition of the
term of “Eligible Assignee”; and




     (ii) to any Person meeting the criteria of clause (ii) of the definition of the
term of “Eligible Assignee” upon giving of notice to Company and Administrative
Agent and, in the case of assignments of Revolving Loans or Revolving Commitments to
any such Person (except in the case of assignments made by or to GSCP), consented to
by each of Company and Administrative Agent (such consent not to be (x) unreasonably
withheld or delayed or, (y) in the case of Company, required at any time an Event of
Default shall have occurred and then be continuing); provided,
further, each such assignment pursuant to this Section 10.6(c)(ii) shall be
in an aggregate amount of not less than (A) $1,000,000 (or such lesser amount as may
be agreed to by Company and Administrative Agent or as shall constitute the
aggregate amount of the Revolving Commitments and Revolving Loans of the assigning
Lender) with respect to the assignment of the Revolving Commitments and Revolving
Loans and (B) $500,000 (or such lesser amount as may be agreed to by Company and
Administrative Agent or as shall constitute the aggregate amount of the Term Loan of
the assigning Lender) with respect to the assignment of Term Loans.




     (d) Mechanics. (i) Assignments of Term Loans by Lenders may be made via an
electronic settlement system acceptable to Administrative Agent as designated in writing
from time to time to the Lenders by Administrative Agent (the “Settlement Service”). Each
such assignment shall be effected by the assigning Lender and proposed assignee pursuant to
the procedures then in effect under the Settlement Service, which procedures shall be
consistent with the other provisions of this Section 10.6. Each assignor Lender and
proposed assignee shall comply with the requirements of the Settlement Service in connection
with effecting any transfer of Loans pursuant to the Settlement Service. Administrative
Agent’s and Company’s consent shall be deemed to have been granted pursuant to Section
10.6(c)(ii) with respect to any transfer effected through the Settlement Service. Subject
to the other requirements of this Section 10.6, assignments and assumptions of Term Loans
may also be effected by manual execution and delivery to the Administrative Agent of an
Assignment Agreement. Initially, assignments and assumptions of Term Loans shall be
effected by such manual execution until Administrative Agent notifies Lenders to the
contrary. Assignments and assumptions (other than a Related Lender Assignment) of Revolving
Loans and Revolving Commitments shall only be effected by manual execution and delivery to
the Administrative Agent of an Assignment Agreement. Assignments made pursuant to the
foregoing provision shall be effective as of the Assignment Effective Date. In connection
with all assignments (other than a Related Lender Assignment) there shall be delivered to
Administrative Agent such forms, certificates or other evidence, if any, with respect to
United States federal income tax withholding matters as the assignee under such Assignment
Agreement may be required to deliver pursuant to Section 2.20(c), together with payment to
the Administrative Agent of a registration and processing fee of $3,500 (except that no such
registration and processing fee shall be payable (y) in connection with an assignment by or
to GSCP or any Affiliate thereof or (z) in the case of an assignee which is already a Lender
or is an Affiliate or Related Fund of a Lender or a Person under common management with a
Lender). Notwithstanding anything herein or in any Assignment Agreement to the contrary and
(i) unless notice to the contrary is delivered to the Lenders from the Administrative Agent
or (ii) so long as no Default or Event of Default has occurred and is continuing, payment to
the assignor by the assignee in respect of the settlement of an assignment of any Term Loan
(but not any Revolving Loan or Revolving Commitment) shall include such compensation to the
assignor as may be agreed upon by the assignor and the assignee with respect to all unpaid
interest which has accrued on such Term Loan to but excluding the Assignment Effective Date.
On and after the applicable Assignment Effective Date, the applicable assignee shall be
entitled to receive all interest paid or payable with respect to the assigned Term Loan,
whether such interest accrued before or after the applicable Assignment Effective Date.



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     (ii) Notwithstanding anything contained in this Section 10.6 to the contrary, a
Lender may effect a Related Lender Assignment without delivering an Assignment
Agreement to the Administrative Agent and without delivering to the Administrative
Agent any forms, certificates or other evidence, if any, with respect to United
States federal income tax withholding (provided that should an assignee party to a
Related Lender Assignment that is not a Lender deliver an Assignment Agreement for
recording, such assignee shall also deliver such forms, certificates or other
evidence as may be required by Section 2.20(c)); provided that the Company,
the Administrative Agent and the other Lenders shall continue to deal solely and
directly with such assigning Lender until such Assignment Agreement has been
delivered to the Administrative Agent and promptly recorded in the Register in
accordance with Section 2.7(b). The failure of such assigning Lender to deliver to
the Administrative Agent an Assignment Agreement with respect to such Related Lender
Assignment shall not affect the legality, validity or binding effect of such
assignment, which shall be effective upon the date specified therein. Subject to
the provisions set forth in the following sentence, the Company agrees that each
assignee party to a Related Lender Assignment shall be entitled to the benefits of
Sections 2.18(c), 2.19 and 2.20 to the same extent as if it had consummated such
assignment by delivery of an Assignment Agreement pursuant to this Section. To the
extent permitted by law, each assignee party to a Related Lender Assignment also
shall be entitled to the benefits of Section 10.4 provided that as a Lender such
assignee shall be subject to Section 2.17. An assignee party to a Related Lender
Assignment shall not be entitled to receive any greater payment under Section 2.19
or 2.20 than the applicable assignor Lender would have been entitled to receive with
respect to the Loans assigned in such Related Lender Assignment until an Assignment
Agreement and any forms, certificates or other evidence, if any, with respect to
United States federal income tax withholding has been delivered to the
Administrative Agent and such Assignment Agreement is recorded in the Register in
accordance with Section 2.7(b).




     (e) Representations and Warranties of Assignee. Each Lender, upon execution
and delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the
case may be, represents and warrants as of the Effective Date or as of the Assignment
Effective Date that (i) it is an Eligible Assignee; (ii) it has experience and expertise in
the making of or investing in commitments or loans such as the applicable Commitments or
Loans, as the case may be; and (iii) it will make or invest in, as the case may be, its
Commitments or Loans for its own account in the ordinary course and without a view to
distribution of such Commitments or Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject to the
provisions of this Section 10.6, the disposition of such Commitments or Loans or any
interests therein shall at all times remain within its exclusive control).




     (f) Effect of Assignment. Subject to the terms and conditions of this Section
10.6 and except in the case of a Related Lender Assignment, as of the “Assignment Effective
Date” (i) the assignee thereunder shall have the rights and obligations of a “Lender”
hereunder to the extent of its interest in the Loans and Commitments as reflected in the
Register and shall thereafter be a party hereto and a “Lender” for all purposes hereof; (ii)
the assigning Lender thereunder shall, to the extent that rights and obligations hereunder
have been assigned to the assignee, relinquish its rights (other than any rights which
survive the termination hereof under Section 10.8) and be released from its obligations
hereunder (and, in the case of an assignment covering all or the remaining portion of an
assigning Lender’s rights and obligations hereunder, such Lender shall cease to be a party
hereto on the Assignment Effective Date; provided, anything contained in any of the
Credit Documents to the contrary notwithstanding, (y) Issuing Bank shall continue to have
all rights and obligations thereof with respect to such Letters of Credit until the
cancellation or expiration of such Letters of Credit and the reimbursement of any amounts
drawn thereunder and (z) such assigning Lender shall continue to be entitled to the benefit
of all indemnities hereunder as specified herein with respect to matters arising out of the
prior involvement of such assigning Lender as a Lender hereunder); (iii) the Commitments
shall be modified to reflect any Commitment of such assignee and any Revolving Commitment of
such assigning Lender, if any; and (iv) if any such assignment occurs after the issuance of
any Note hereunder, the assigning Lender shall, upon the effectiveness of such assignment or
as promptly thereafter as practicable, surrender its applicable Notes to Administrative
Agent for cancellation, and thereupon Company shall issue and deliver new Notes, if so
requested by the assignee



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and/or assigning Lender, to such assignee and/or to such assigning Lender, with
appropriate insertions, to reflect the outstanding Loans of the assignee and/or the
assigning Lender. An assignment agreement between the assigning Lender and an Affiliate of
such Lender or a Related Fund of such Lender shall be effective as of the date specified in
such assignment agreement.




     (g) Participations. (i) Each Lender shall have the right at any time to sell
one or more participations to any Person (other than Holdings, any of its Subsidiaries or
any of its Affiliates) in all or any part of its Commitments, Loans or in any other
Obligation. The holder of any such participation, other than an Affiliate of the Lender
granting such participation, shall not be entitled to require such Lender to take or omit to
take any action hereunder except with respect to any amendment, modification or waiver that
would (A) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless
such Letter of Credit is not extended beyond the Revolving Commitment Termination Date) in
which such participant is participating, or reduce the rate or extend the time of payment of
interest or fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof, or increase
the amount of the participant’s participation over the amount thereof then in effect (it
being understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted without the
consent of any participant if the participant’s participation is not increased as a result
thereof), (B) consent to the assignment or transfer by any Credit Party of any of its rights
and obligations under this Agreement or (C) release all or substantially all of the
Collateral under the Collateral Documents (except as expressly provided in the Credit
Documents) supporting the Loans hereunder in which such participant is participating.
Company agrees that each participant shall be entitled to the benefits of Sections 2.18(c),
2.19 and 2.20 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (c) of this Section; provided, (x) a participant
shall not be entitled to receive any greater payment under Section 2.19 or 2.20 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
Company’s prior written consent and (y) except as otherwise permitted in Section 2.20, a
participant that would be a Non-US Lender if it were a Lender shall not be entitled to the
benefits of Section 2.20 unless Company is notified of the participation sold to such
participant and such participant agrees, for the benefit of Company, to comply with Section
2.20 as though it were a Lender. To the extent permitted by law, each participant also
shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.17 as though it were a Lender.




     (ii) In the event that any Lender sells participations in a Registered Loan,
such Lender, acting for this purpose as a non-fiduciary agent of the Company, shall
maintain a register on which it enters the name of all participants in the
Registered Loans held by it (the “Participant Register”). A Registered Loan (and
the registered note, if any, evidencing the same) may be participated in whole or in
part only by registration of such participation on the Participant Register (and
each registered note shall expressly so provide). Any participation of such
Registered Loan (and the registered note, if any, evidencing the same) may be
effected only by the registration of such participation on the Participant Register.




     (iii) Certain Other Assignments. In addition to any other assignment
permitted pursuant to this Section 10.6, any Lender may assign and/or pledge all or
any portion of its Loans, the other Obligations owed by or to such Lender, and its
Notes, if any, to secure obligations of such Lender including, without limitation,
any Federal Reserve Bank as collateral security pursuant to Regulation A of the
Board of Governors and any operating circular issued by such Federal Reserve Bank;
provided, no Lender, as between Company and such Lender, shall be relieved
of any of its obligations hereunder as a result of any such assignment and pledge,
and provided further, in no event shall the applicable Federal
Reserve Bank, pledgee or trustee be considered to be a “Lender” or be entitled to
require the assigning Lender to take or omit to take any action hereunder.



     10.7. Independence of Covenants. All covenants hereunder shall be given independent effect so
that if a particular action or condition is not permitted by any of such covenants, the fact that
it would be permitted by an



84









 




exception to, or would otherwise be within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken or condition
exists.




     10.8. Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination hereof.



     10.9. No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any of the other Credit Documents or any of the hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any right, power or remedy
hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof,
nor shall it preclude the further exercise of any such right, power or remedy.



     10.10. Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
any Agent or Lenders enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or
federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not occurred.



     10.11. Severability. In case any provision in or obligation hereunder or under any other
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



     10.12. Obligations Several; Independent Nature of Lenders Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.



     10.13. Headings. Section headings herein are included herein for convenience of reference
only and shall not constitute a part hereof for any other purpose or be given any substantive
effect.



     10.14. APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     10.15. CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE
BROUGHT IN ANY STATE OR



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FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF
ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL,
RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT,
AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT
AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMIT TED BY LAW OR TO
BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.




     10.16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.



     10.17. Confidentiality. Each Lender and each Agent shall hold all non-public information
regarding Holdings, its Subsidiaries and DTN Leasing and their businesses obtained by such Lender
or Agent pursuant to the requirements hereof or in connection with the closing, syndication,
administration or enforcement of the Loans or Commitments in accordance with such Lender’s or
Agent’s customary procedures for handling confidential information of such nature, it being
understood and agreed by Company that, in any event, a Lender or Agent may make (i) disclosures of
such information to Affiliates of such Lender and to their agents and advisors that need to know
such information in connection with this Agreement and are advised of this Section 10.17 (and to
other persons authorized by a Lender or Agent to organize, present or disseminate such information
in connection with disclosures otherwise made in accordance with this Section 10.17), (ii)
disclosures of such information reasonably required by any bona fide or potential assignee,
transferee or participant in connection with the contemplated assignment, transfer or participation
by such Lender of any Loans or any participations therein or by any direct or indirect contractual
counterparties (or the professional advisors thereto) in Hedge Agreements (provided, such
potential assignees, transferees, counterparties and advisors are advised of and agree to be bound
by the provisions of this Section 10.17), (iii) disclosure to any rating agency when required by
it, provided that, prior to any disclosure, such rating agency shall undertake in writing
to preserve the confidentiality of any confidential information relating to the Credit Parties
received by it from any of the Agents or any Lender, and (iv) disclosures required or requested by
any governmental agency or representative thereof or by the NAIC or pursuant to legal or



86









 




judicial process; provided, unless specifically prohibited by applicable law or court
order, each Lender and each Agent shall make reasonable efforts to notify Company of any request by
any governmental agency or representative thereof (other than any such request in connection with
any examination of the financial condition or other routine examination of such Lender by such
governmental agency) for disclosure of any such non-public information prior to disclosure of such
information.




     10.18. Press Releases and Related Matters. Each Credit Party and each Agent executing this
Agreement agrees that neither it nor its Affiliates will in the future issue any press releases or
other public disclosure using the name of any Agent or its affiliates or any Credit Party,
respectively, or referring to this Agreement or the other Credit Documents without at least two (2)
Business Days’ prior notice to such other party or its affiliates without the prior written consent
of such other party unless (and only to the extent that) such Credit Party or its Affiliate or
Agent or its Affiliate, as the case may be, is required to do so under law and then, in any event,
such party will consult with the other party before issuing such press release or other public
disclosure. Each Credit Party consents to the publication by the Agents or any Lender of
advertising material relating to the financing transactions contemplated by this Agreement using
Company’s name, product photographs, logo or trademark. The Agents reserve the right to provide to
industry trade organizations information necessary and customary for inclusion in league table
measurements.



     10.19. Usury Savings Clause. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all charges or fees in
connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the
Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due hereunder (taking into
account the increase provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, Company shall pay to Administrative Agent such
shortfall. Notwithstanding the foregoing, it is the intention of Lenders and Company to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for, charges, or
receives any consideration which constitutes interest in excess of the Highest Lawful Rate, then
any such excess shall be cancelled automatically and, if previously paid, shall at such Lender’s
option be applied to the outstanding amount of the Loans made hereunder or be refunded to Company.



     10.20. Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     10.21. Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of
written or telephonic notification of such execution and authorization of delivery thereof.



     10.22. Patriot Act. Each Lender that is subject to Section 326 of the Patriot Act and
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Company that
pursuant to the requirements of the Act, it is required to obtain, verify and record information
that identifies Company, which information includes the name and address of Company and other
information that will allow such Lender or Administrative Agent, as applicable, to identify Company
in accordance with the Act.



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



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     10.24. Amendment and Restatement. It is the intention of each of the parties hereto that the
Existing First Lien Credit Agreement be amended and restated so as to preserve the perfection and
priority of all security interests securing indebtedness and obligations under the Existing First
Lien Credit Agreement and that all Indebtedness and Obligations of Holdings and its Subsidiaries
hereunder and thereunder shall be secured by the Collateral Documents. The parties hereto further
acknowledge and agree that this Agreement constitutes an amendment of the Existing First Lien
Credit Agreement made under and in accordance with the terms of Section 10.5 of the Existing First
Lien Credit Agreement. In addition, unless specifically amended hereby, each of the Credit
Documents, the Exhibits and Schedules to the Existing First Lien Credit Agreement shall continue in
full force and effect and that, from and after the Effective Date, all references to the “Credit
Agreement” contained therein shall be deemed to refer to this Agreement.



     10.25. Reaffirmation and Grant of Security Interests.




     (a) Each Credit Party, subject to the terms and limits contained herein and in the
Collateral Documents has (i) guarantied the Obligations and (ii) created Liens in favor of
Collateral Agent on certain Collateral to secure its obligations hereunder, under Section 7
hereof and each Collateral Document, respectively (and as applicable). Each Credit Party
hereby acknowledges that it has reviewed the terms and provisions of this Agreement and
consents to the amendment and restatement of the Existing First Lien Credit Agreement
effected pursuant to this Agreement. Each Credit Party hereby (i) confirms that each Credit
Document to which it is a party or is otherwise bound and all Collateral encumbered thereby
will continue to guarantee or secure, as the case may be, to the fullest extent possible in
accordance with the Credit Documents, the payment and performance of the Obligations, as the
case may be, including without limitation the payment and performance of all such applicable
Obligations that are joint and several obligations of each Grantor now or hereafter
existing, and (ii) grants to the Collateral Agent for the benefit of the Secured Parties a
continuing lien on and security interest in and to such Credit Party’s right, title and
interest in, to and under all Collateral as collateral security for the prompt payment and
performance in full when due of all applicable Obligations subject to the terms and limits
contained herein and in the Collateral Documents (whether at stated maturity, by
acceleration or otherwise).




     (b) Each Credit Party acknowledges and agrees that any of the Credit Documents to which
it is a party or otherwise bound shall continue in full force and effect and that all of its
obligations thereunder shall be valid and enforceable and shall not be impaired or limited
by the execution or effectiveness of the amendment and restatement of the Existing First
Lien Credit Agreement. Each Credit Party represents and warrants that all representations
and warranties contained in the Credit Documents to which it is a party or otherwise bound
are true and correct in all material respects on and as of the Effective Date to the same
extent as though made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were true and correct
in all material respects on and as of such earlier date.



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



	 	 	 	 	 
	 	DTN, INC.,

 	 
	 	By:  	/s/ Richard G. Hallé
 	 
	 	 	Name:  	Richard G. Hallé 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	DTN HOLDING COMPANY, INC.,

 	 
	 	By:  	/s/ Richard G. Hallé
 	 
	 	 	Name:  	Richard G. Hallé 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	DTN HOLDCO CORPORATION,

 	 
	 	By:  	/s/ Richard G. Hallé
 	 
	 	 	Name:  	Richard G. Hallé 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	DTN, LLC,

 	 
	 	By:  	/s/ Richard G. Hallé
 	 
	 	 	Name:  	Richard G. Hallé 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	DTN INFORMATION SERVICES LLC,

 	 
	 	By:  	/s/ Richard G. Hallé
 	 
	 	 	Name:  	Richard G. Hallé 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	KAVOURAS, INC.,

 	 
	 	By:  	/s/ Richard G. Hallé
 	 
	 	 	Name:  


Title:  	Richard G. Hallé

Chief Financial Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	FINANCIAL INFORMATION
MANAGEMENT, INC.

 	 
	 	By:  	/s/ Richard G. Hallé
 	 
	 	 	Name:  	Richard G. Hallé 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



	 	 	 	 	 



 









 






	 	 	 	 	 
	 	GOLDMAN SACHS CREDIT PARTNERS L.P.,

as Lead Arranger, Sole Bookrunner and Sole

Syndication Agent and a Lender

 	 
	 	By:  	/s/ Robert Schatzman
 	 
	 	 	Robert Schatzman 	 
	 	 	Authorized Signatory 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent, Collateral Agent,

Swing Line Lender, Issuing Bank and a Lender

 	 
	 	By:  	/s/ Thomas S. Beck
 	 
	 	 	Name:  	Thomas S. Beck 	 
	 	 	Title:  	Duly Authorized Signatory