EX-10.1 CREDIT AGREEMENT



 





Exhibit 10.1




 





Published CUSIP Number:                                         




CREDIT AGREEMENT




Dated as of December 21, 2007




among




TOTAL SYSTEM SERVICES, INC.,

as the Borrower,




BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender

and

L/C Issuer,




THE ROYAL BANK OF SCOTLAND PLC,

as the Syndication Agent,




and




The Other Lenders Party Hereto




BANC OF AMERICA SECURITIES LLC




and




RBS SECURITIES CORPORATION D/B/A/ RBS GREENWICH CAPITAL

as

Joint Lead Arrangers and Joint Book Managers

 





 









 





TABLE OF CONTENTS




	 	 	 	 	 
	ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS
	 	 	1	 
	1.01. Defined Terms
	 	 	1	 
	1.02. Other Interpretive Provisions
	 	 	20	 
	1.03. Accounting Terms
	 	 	21	 
	1.04. Rounding
	 	 	21	 
	1.05. Times of Day
	 	 	21	 
	1.06. Letter of Credit Amounts
	 	 	21	 
	 
	 	 	 	 
	ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS
	 	 	21	 
	2.01. The Loans
	 	 	21	 
	2.02. Borrowings, Conversions and Continuations of Loans
	 	 	22	 
	2.03. Letters of Credit
	 	 	23	 
	2.04. Swing Line Loans
	 	 	31	 
	2.05. Prepayments
	 	 	34	 
	2.06. Termination or Reduction of Commitments
	 	 	34	 
	2.07. Repayment of Loans
	 	 	35	 
	2.08. Interest
	 	 	35	 
	2.09. Fees
	 	 	36	 
	2.10. Computation of Interest and Fees
	 	 	36	 
	2.11. Evidence of Debt
	 	 	37	 
	2.12. Payments Generally; Administrative Agent’s Clawback
	 	 	37	 
	2.13. Sharing of Payments by Lenders
	 	 	39	 
	2.14. Extension of Maturity Date in respect of the Revolving Credit Facility
	 	 	39	 
	2.15. Increase in Commitments
	 	 	41	 
	 
	 	 	 	 
	ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY
	 	 	42	 
	3.01. Taxes
	 	 	42	 
	3.02. Illegality
	 	 	44	 
	3.03. Inability to Determine Rates
	 	 	44	 
	3.04. Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	44	 
	3.05. Compensation for Losses
	 	 	46	 
	3.06. Mitigation Obligations; Replacement of Lenders
	 	 	46	 
	3.07. Survival
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
	 	 	47	 
	4.01. Conditions of Initial Credit Extension
	 	 	47	 
	4.02. Conditions to all Credit Extensions
	 	 	48	 
	 
	 	 	 	 
	ARTICLE V. REPRESENTATIONS AND WARRANTIES
	 	 	49	 
	5.01. Existence, Qualification and Power
	 	 	49	 
	5.02. Authorization; No Contravention
	 	 	49	 
	5.03. Governmental Authorization; Other Consents
	 	 	49	 
	5.04. Binding Effect
	 	 	49	 
	5.05. Financial Statements; No Material Adverse Effect
	 	 	49	 
	5.06. Litigation
	 	 	50	 
	5.07. No Default
	 	 	50	 
	5.08. Ownership of Property; Liens
	 	 	50	 
	5.09. Insurance
	 	 	50	 
	5.10. Environmental Compliance
	 	 	50	 






i









 






	 	 	 	 	 
	5.11. Taxes
	 	 	50	 
	5.12. ERISA Compliance
	 	 	50	 
	5.13. Subsidiaries; Equity Interests
	 	 	51	 
	5.14. Margin Regulations; Investment Company Act
	 	 	51	 
	5.15. Solvency
	 	 	52	 
	5.16. Disclosure
	 	 	52	 
	5.17. Compliance with Laws
	 	 	52	 
	5.18. Use of Proceeds
	 	 	52	 
	5.19. Intellectual Property; Licenses, Etc.
	 	 	52	 
	5.20. Taxpayer Identification Number
	 	 	52	 
	5.21. Amendment to Material Documents
	 	 	52	 
	 
	 	 	 	 
	ARTICLE VI. AFFIRMATIVE COVENANTS
	 	 	53	 
	6.01. Financial Statements
	 	 	53	 
	6.02. Certificates; Other Information
	 	 	53	 
	6.03. Notices
	 	 	55	 
	6.04. Payment of Obligations
	 	 	55	 
	6.05. Preservation of Existence, Etc.
	 	 	56	 
	6.06. Maintenance of Properties
	 	 	56	 
	6.07. Maintenance of Insurance
	 	 	56	 
	6.08. Compliance with Laws
	 	 	56	 
	6.09. Books and Records
	 	 	56	 
	6.10. Inspection Rights
	 	 	56	 
	6.11. Use of Proceeds
	 	 	56	 
	 
	 	 	 	 
	ARTICLE VII. NEGATIVE COVENANTS
	 	 	56	 
	7.01. Liens
	 	 	57	 
	7.02. Investments
	 	 	59	 
	7.03. Fundamental Changes
	 	 	59	 
	7.04. Dispositions
	 	 	60	 
	7.05. Restricted Payments
	 	 	60	 
	7.06. Change in Nature of Business
	 	 	60	 
	7.07. Transactions with Affiliates
	 	 	60	 
	7.08. Use of Proceeds
	 	 	60	 
	7.09. Financial Covenants
	 	 	61	 
	7.10. Swap Contracts
	 	 	61	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES
	 	 	61	 
	8.01. Events of Default
	 	 	61	 
	8.02. Remedies Upon Event of Default
	 	 	62	 
	8.03. Application of Funds
	 	 	63	 
	 
	 	 	 	 
	ARTICLE IX. ADMINISTRATIVE AGENT
	 	 	64	 
	9.01. Appointment and Authority
	 	 	64	 
	9.02. Rights as a Lender
	 	 	64	 
	9.03. Exculpatory Provisions
	 	 	64	 
	9.04. Reliance by Administrative Agent
	 	 	65	 
	9.05. Delegation of Duties
	 	 	65	 
	9.06. Resignation of Administrative Agent
	 	 	65	 
	9.07. Non Reliance on Administrative Agent and Other Lenders
	 	 	66	 
	9.08. No Other Duties, Etc.
	 	 	66	 






ii









 






	 	 	 	 	 
	9.09. Administrative Agent May File Proofs of Claim
	 	 	66	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	67	 
	10.01. Amendments, Etc.
	 	 	67	 
	10.02. Notices; Effectiveness; Electronic Communication
	 	 	68	 
	10.03. No Waiver; Cumulative Remedies
	 	 	70	 
	10.04. Expenses; Indemnity; Damage Waiver
	 	 	70	 
	10.05. Payments Set Aside
	 	 	72	 
	10.06. Successors and Assigns
	 	 	72	 
	10.07. Treatment of Certain Information; Confidentiality
	 	 	76	 
	10.08. Right of Setoff
	 	 	76	 
	10.09. Interest Rate Limitation
	 	 	77	 
	10.10. Counterparts; Integration; Effectiveness
	 	 	77	 
	10.11. Survival of Representations and Warranties
	 	 	77	 
	10.12. Severability
	 	 	77	 
	10.13. Replacement of Lenders
	 	 	78	 
	10.14. Governing Law; Jurisdiction; Etc.
	 	 	78	 
	10.15. Waiver of Jury Trial
	 	 	79	 
	10.16. No Advisory or Fiduciary Responsibility
	 	 	79	 
	10.17. USA PATRIOT Act Notice
	 	 	80	 
	10.18. ENTIRE AGREEMENT
	 	 	80	 






	 	 	 
	SCHEDULES
	2.01	 	Commitments and Applicable Percentages

	5.06	 	Litigation

	5.10	 	Environmental Matters

	5.13	 	Subsidiaries; Other Equity Investments

	7.01	 	Existing Liens

	10.02	 	Administrative Agent’s Office; Certain Addresses for Notices







EXHIBITS




	 	 	 	 	 
	 	 	 	 	Form of
	 
	 	A	 	Committed Loan Notice
	 
	 	B	 	Swing Line Loan Notice
	 
	 	C-1	 	Term Note
	 
	 	C-2	 	Revolving Credit Note
	 
	 	D	 	Compliance Certificate
	 
	 	E	 	Assignment and Assumption
	 
	 	F	 	Opinion Matters






iii









 






CREDIT AGREEMENT




     This CREDIT AGREEMENT (“Agreement”) is entered into as of December 21, 2007, among TOTAL
SYSTEM SERVICES, INC., a Georgia corporation (the “Borrower”), each lender from time to time party
hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, BANC OF AMERICA SECURITIES LLC and RBS
SECURITIES CORPORATE D/B/A/ RBS GREENWICH CAPITAL, as joint lead arrangers and joint book managers,
and THE ROYAL BANK OF SCOTLAND PLC, as Syndication Agent.



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



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



ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS




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



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



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



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



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



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



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



     “Ancillary Agreement” means the Employee Matters Agreement (as defined in the Distribution
Agreement), the Tax Sharing Agreement, the Transition Services Agreement (as defined in the
Distribution Agreement), the Confidential Disclosure Agreement (as defined in the Distribution
Agreement), the Indemnification and Insurance Matters Agreement (as defined in the Distribution
Agreement) and the Assignment and Assumption Agreement.



     “Applicable Percentage” means (a) in respect of the Term Loan Facility, with respect to any
Term Loan Lender at any time, the percentage (carried out to the ninth decimal place) of the Term
Loan Facility represented by (i) on or prior to the Closing Date, such Term Loan Lender’s Term Loan
Commitment at such time and (ii) thereafter, the principal amount of such Term Loan Lender’s Term
Loan at such time, and (b) in respect of the Revolving Credit Facility, with respect to any
Revolving



 









 







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



     “Applicable Rate” means, from time to time with respect to the applicable Facility or fees,
the following percentages per annum based upon the Debt Rating as set forth below for each such
Facility or fee:



Applicable Rate




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Applicable Margin for	 	Letter of	 	Utilization
	 	 	 	 	 	 	Facility Fee	 	LIBOR Loans	 	Credit Fees	 	Fee
	 	 	 	 	 	 	Revolving	 	 	 	 	 	Revolving	 	Revolving	 	Revolving
	Pricing	 	Debt Ratings	 	Credit	 	Term Loan	 	Credit	 	Credit	 	Credit
	Level	 	S&P/Moody’s	 	Facility	 	Facility	 	Facility	 	Facility	 	Facility
	 	1	 	 	A-/A3 or better
	 	 	.08	%	 	 	.40	%	 	 	.27	%	 	 	.27	%	 	 	.05	%
	 	2	 	 	BBB+/Baa1
	 	 	.09	%	 	 	.50	%	 	 	.31	%	 	 	.31	%	 	 	.10	%
	 	3	 	 	BBB/Baa2
	 	 	.10	%	 	 	.60	%	 	 	.40	%	 	 	.40	%	 	 	.10	%
	 	4	 	 	BBB-/Baa3
	 	 	.125	%	 	 	.75	%	 	 	.50	%	 	 	.50	%	 	 	.125	%
	 	5	 	 	< BBB- /Baa3
	 	 	.15	%	 	 	1.00	%	 	 	.725	%	 	 	.725	%	 	 	.125	%






          “Debt Rating” means, as of any date of determination, the corporate credit rating for
the Borrower as determined by either S&P or Moody’s (collectively, the “Debt Ratings”);
provided that after the date that the Borrower has received a corporate credit
rating from both S&P and Moody’s, (a) if the respective Debt Ratings issued by the foregoing
rating agencies differ by one level, then the Pricing Level for the higher of such Debt
Ratings shall apply (with the Debt Rating for Pricing Level 1 being the highest and the Debt
Rating for Pricing Level 5 being the lowest); (b) if there is a split in Debt Ratings of
more than one level, then the Pricing Level that is one level lower than the Pricing Level
of the higher Debt Rating shall apply; (c) if the Borrower has only one Debt Rating, the
Pricing Level that is one level lower than that of such Debt Rating shall apply; and (d) if
the Borrower does not have any Debt Rating, Pricing Level 5 shall apply.



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




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



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



2









 





     “Arrangers” mean Banc of America Securities LLC and RBS Securities Corporation d/b/a/ RBS
Greenwich Capital, in their capacity as joint lead arrangers and book managers.



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



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



     “Assignment and Assumption Agreement” has the meaning given to it in the Distribution
Agreement.



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



     “Audited Financial Statements” means the audited consolidated balance sheet of the Borrower
and its Subsidiaries for the fiscal year ended December 31, 2006, and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the
Borrower and its Subsidiaries, including the notes thereto.



     “Availability Period” means, on any date of determination, (a) in respect of each Revolving
Credit Lender, the period from and including the Closing Date to the earliest of (i) the Maturity
Date of the Revolving Credit Facility then applicable to the Revolving Credit Loans made by such
Revolving Credit Lender; (ii) the date of termination of the Revolving Credit Commitments pursuant
to Section 2.06; or (iii) the date of termination of the commitment of each Revolving Credit Lender
to make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit
Extensions pursuant to Section 8.02; (b) in respect of the Swing Line, the period from and
including the Closing Date to the earliest of (i) the applicable Maturity Date of the Swing Line
then in effect; (ii) the date of termination of the Revolving Credit Commitments pursuant to
Section 2.06; or (iii) the date of termination of the commitment of each Revolving Credit Lender to
make Revolving Credit Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions
pursuant to Section 8.02; and (c) in respect of the Term Loan Facility, the period from and
including the Closing Date through and including December 31, 2007, or such earlier date upon which
the commitments of each Term Loan Lender are terminated pursuant to Section 8.02.



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



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



3









 





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



     “Book Value” means, at any date of determination with respect to any asset, the value thereof
as the same would be reflected on a balance sheet as at such time in accordance with GAAP.



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



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



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



     “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.



     “Cash Collateral” has the meaning specified in Section 2.03(g).



     “Cash Collateralize” has the meaning specified in Section 2.03(g).



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



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



          (a) Prior to the occurrence of the Spinoff, Synovus Financial Corp. shall cease to be
the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange
Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of
all securities that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right, an “option right”)),
directly or indirectly, of at least 50% of the equity securities of the Borrower entitled to
vote for members of the board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such person or group
has the right to acquire pursuant to any option right); and




          (b) After the occurrence of the Spinoff:





(i) any “person” or “group” (as such terms are used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but excluding any employee
benefit plan of such person or its subsidiaries, and any person or entity
acting in its capacity as trustee, agent or other fiduciary or administrator
of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the
Securities Exchange Act of 1934, except that a person or group shall be
deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable
immediately or only after the



4









 







passage of time (such right, an “option
right”)), directly or indirectly, of 25% or more of the equity securities of
the Borrower entitled to vote for members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and
taking into account all such securities that such person or group has the
right to acquire pursuant to any option right);




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




(iii) any Person or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a contract or
arrangement that, upon consummation thereof, will result in its or their
acquisition of the power to exercise, directly or indirectly, control over
the equity securities of the Borrower entitled to vote for members of the
board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
Person or group has the right to acquire pursuant to any option right)
representing 25% or more of the combined voting power of such securities.



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



     “Code” means the Internal Revenue Code of 1986.



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



     “Committed Borrowing” means a Revolving Credit Borrowing or Term Loan Borrowing, as the case
may be, consisting of simultaneous Loans of the same Type, and in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the Revolving Credit Lenders or the Term
Loan Lenders, as the case may be, pursuant to Section 2.01.



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



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



     “Consolidated EBITDA” means, as of any date of determination and without duplication, an
amount equal to Consolidated Net Income of the Borrower and its Subsidiaries on a consolidated
basis for the most recently completed Measurement Period plus (a) the following to the
extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for
such period, (ii) the



5









 







provision for Federal, state, local and foreign income taxes payable by the
Borrower and its Subsidiaries for such period, (iii) depreciation and amortization expense for such
period, and (iv) all non-cash items decreasing Consolidated Net Income for such period, and
minus (b) the following to the extent included in calculating such Consolidated Net Income:
(i) Federal, state, local and foreign income tax credits of the Borrower and its Subsidiaries for
such period and (ii) all non-cash items increasing Consolidated Net Income for such period.



     “Consolidated EBITDAR” means, as of any date of determination and without duplication, an
amount equal to Consolidated EBITDA for the most recently completed Measurement Period
plus, to the extent deducted in calculating such Consolidated Net Income, Rental Expenses
for such period.



     “Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio
of (a) Consolidated EBITDAR for the most recently completed Measurement Period to (b) Consolidated
Interest Charges plus Rental Expenses for the most recently completed Measurement Period.



     “Consolidated Funded Indebtedness” means, as of any date of determination, for the Borrower
and its Subsidiaries on a consolidated basis, and without duplication, the sum of (a) the
outstanding principal amount of all obligations, whether current or long-term, for borrowed money
(including, as applicable, Obligations hereunder) and all obligations evidenced by bonds,
debentures, notes, loan agreements or other similar instruments, (b) all purchase money
Indebtedness, (c) all direct obligations arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all
obligations in respect of the deferred purchase price of property or services (other than trade
accounts payable in the ordinary course of business), (e) all Attributable Indebtedness in respect
of capital leases and Synthetic Lease Obligations, (f) all Guarantees with respect to outstanding
Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the
Borrower or any Subsidiary, and (g) all other Indebtedness of a Person other than the Borrower or
any Subsidiary, which Indebtedness is (x) of the types referred to in clauses (a) through (f) above
and (y) recourse to the Borrower or any Subsidiary.



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



     “Consolidated Leverage Ratio” means, as of any date of determination, the ratio of
(a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA.



     “Consolidated Net Income” means, at any date of determination, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its Subsidiaries for the
most recently completed Measurement Period; provided that Consolidated Net Income shall
exclude (a) extraordinary gains and extraordinary losses for such Measurement Period, (b) the net
income of any Subsidiary during such Measurement Period to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary of such income is not permitted by
operation of the terms of its Organization Documents or any agreement, instrument or Law applicable
to such Subsidiary during such
Measurement Period; provided that the determination of Consolidated Net Income shall include
(i) the amount of any cash dividends or other cash distributions actually paid to the Borrower or
any Subsidiary during such period in accordance with applicable law and (ii) the amount of the
Borrower’s equity in any net loss of any such Subsidiary for such Measurement Period; and (c) any
income (or loss) for such



6









 







Measurement Period of any Person if such Person is not a Subsidiary,
except that the Borrower’s equity in the net income of any such Person for such Measurement Period
shall be included in Consolidated Net Income up to the aggregate amount of cash actually
distributed by such Person during such Measurement Period to the Borrower or a Subsidiary as a
dividend or other distribution (and in the case of a dividend or other distribution to a
Subsidiary, such Subsidiary is not precluded from further distributing such amount to the Borrower
as described in clause (b) of this proviso).



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



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



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



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



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



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



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



     “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Term Loan,
Revolving Credit Loans, participations in L/C Obligations or participations in Swing Line Loans
required to be funded by it hereunder within one Business Day of the date required to be funded by
it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by it hereunder
within one Business Day of the date when due, unless the subject of a good faith dispute or unless
such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy
or insolvency proceeding.



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



     “Distribution Agreement” means that certain Agreement and Plan of Distribution dated as of
October 25, 2007, as amended, by and among the Borrower, Synovus Financial Corp. and Columbus Bank
and Trust Company.



7









 





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



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



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



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



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



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



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



     “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent
to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer
Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.



     “Eurodollar Rate” means, for any Interest Period with respect to a Eurodollar Rate Loan, the
rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by



8









 







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



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



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



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



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



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



     “Fee Letter” means the letter agreement, dated November 13, 2007, among the Borrower, the
Administrative Agent and Banc of America Securities LLC.



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



9









 





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



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



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



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



     “Guarantee” means, as to any Person, any (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable or
performable by another Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or
lease property, securities or services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such Indebtedness or other
obligation, (iii) to maintain working capital, equity capital or any other financial statement
condition or liquidity or level of income or cash flow of the primary obligor so as to enable the
primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any
other manner the obligee in respect of such Indebtedness of the payment or performance thereof or
to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on
any assets of such Person securing any Indebtedness of any other Person, whether or not such
Indebtedness is assumed by such Person (or any right, contingent or otherwise, of any holder of
such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an
amount equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The term “Guarantee” as a verb has a corresponding meaning.



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



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




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



10









 






          (b) the maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments;




          (c) net obligations of such Person under any Swap Contract due and payable at the time
of determination;




          (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business);




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




          (f) all Attributable Indebtedness in respect of capital leases and Synthetic Lease
Obligations of such Person;




          (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other Person,
valued, in the case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, except to the
extent such obligations may be satisfied by the payment of Equity Interests issued by such
obligated Person, which Equity Interests do not constitute Indebtedness; and




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



     For all purposes hereof, the Indebtedness of any Person shall include all other Indebtedness
of the types specified in clauses (a) through (h) above of Persons other than the Borrower or any
Subsidiary, which Indebtedness is (x) of the types referred to in clauses (a) through (f) above and
(y) recourse to the Borrower or any Subsidiary. For purposes of clause (c) above, the amount of
any net obligation under any Swap Contract on any date of determination shall be the Swap
Termination Value thereof as determined in accordance with clause (a) of the definition of “Swap
Termination Value.”



     “Indemnified Taxes” means Taxes other than Excluded Taxes.



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



     “Information” has the meaning specified in Section 10.07.



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



     “Interest Period” means, (a) as to each Eurodollar Rate Loan, the period commencing on the
date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan
and ending on the date one week thereafter, or one, two, three or six months thereafter, as
selected by the



11









 







Borrower in its Committed Loan Notice or such other period that is twelve months or
less requested by the Company and consented to by all Lenders; provided that:




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




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




               (iii) no Interest Period shall extend beyond the Maturity Date of the Facility
under which such Loan was made.



     “Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or
assumption of debt of, or purchase or other acquisition of any other debt or equity participation
or interest in, another Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other
Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions)
of assets of another Person that constitute a business unit. For purposes of covenant compliance,
the amount of any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.



     “IP Rights” has the meaning specified in Section 5.19.



     “IRS” means the United States Internal Revenue Service.



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



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



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



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



12









 





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



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



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



     “L/C Obligations” means, as at any date of determination, the aggregate amount available to be
drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn
under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 1.06. For all purposes of this Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn thereunder by reason of the
operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the
amount so remaining available to be drawn.



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



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



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



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



     “Letter of Credit Expiration Date” means, on any date of determination with respect to any L/C
Issuer, the day that is seven days prior to the applicable Maturity Date then in effect with
respect to such L/C Issuer (or, if such day is not a Business Day, the next preceding Business
Day).



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



     “Letter of Credit Subfacility” means the letter of credit subfacility established pursuant to
Section 2.03.



     “Letter of Credit Sublimit” means an amount equal to $30,000,000. The Letter of Credit
Sublimit is part of, and not in addition to, the Aggregate Commitments.



     “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement, any easement, right of way or
other encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



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



13









 





     “Loan Documents” means this Agreement, each Note, each Issuer Document, and the Fee Letter.



     “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect
upon, the operations, business, assets, liabilities (actual or contingent), or financial condition
of the Borrower and its Subsidiaries, taken as a whole; or (b) an impairment of material rights
and remedies of the Administrative Agent or any Lender under any Loan Document, or of the ability
of the Borrower to perform its material obligations under any Loan Document.



     “Material Subsidiary” means a “significant subsidiary” as such term is defined in Regulation
S-X, 17 C.F.R. §210.



     “Maturity Date” means, on any date of determination, (a) with respect to the Revolving Credit
Loans of a Revolving Credit Lender, the later of (i) December 21, 2012, or (ii) if such Revolving
Credit Lender agreed to extend the Maturity Date pursuant to Section 2.14, such extended Maturity
Date as determined pursuant to such Section; (b) with respect to the Swing Line, the later of (i)
December 21, 2012, or (ii) if the Swing Line Lender (or the applicable Revolving Credit Lender on
behalf of the Swing Line Lender) agreed to extend the Maturity Date pursuant to Section 2.14, such
extended Maturity Date as determined pursuant to such Section; (c) with respect to the obligations
of any L/C Issuer under the Letter of Credit Subfacility, the later of (i) December 21, 2012, or
(ii) if such L/C Issuer (or the applicable Revolving Credit Lender on behalf of such L/C Issuer)
agreed to extend the Maturity Date pursuant to Section 2.14, such extended Maturity Date as
determined pursuant to such Section; and (d) with respect to the Term Loan Facility, December 21,
2012; provided, however, that, in each case, if such date is not a Business Day, the Maturity Date
shall be the next preceding Business Day.



     “Measurement Period” means, at any date of determination, the most recently completed four
fiscal quarters of the Borrower or, if fewer than four consecutive fiscal quarters of the Borrower
have been completed since the Closing Date, the fiscal quarters of the Borrower that have been
completed since the Closing Date; provided that: (a) for purposes of determining an amount
of any item included in the calculation of a financial ratio or financial covenant for the fiscal
quarter ended December 31, 2007, such amount for the Measurement Period then ended shall equal such
item for such fiscal quarter multiplied by four; (b) for purposes determining an amount of
any item included in the calculation of a financial ratio or financial covenant for the fiscal
quarter ended March 31, 2008, such amount for the Measurement Period then ended shall equal such
item for the two fiscal quarters then ended multiplied by two; and (c) for purposes of
determining an amount of any item included in the calculation of a financial ratio or financial
covenant for the fiscal quarter ended June 30, 2008, such amount for the Measurement Period then
ended shall equal such item for the three fiscal quarters then ended multiplied by 4/3.



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



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



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



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



14









 







Relief Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding.



     “Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.



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



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



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



     “PBGC” means the Pension Benefit Guaranty Corporation.



     “Pension Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and
is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.



     “Permitted Disposition” means the following Dispositions, so long as no Event of Default
exists immediately after giving effect thereto:




	 	(a)	 	Dispositions of obsolete or worn out property, whether now owned or hereafter
acquired, in the ordinary course of business;
	 
	 	(b)	 	Dispositions of inventory in the ordinary course of business;
	 
	 	(c)	 	Dispositions of equipment or real property to the extent that (i) such property
is exchanged for credit against the purchase price of similar replacement property or
(ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price
of such replacement property;




15









 






	 	(d)	 	Dispositions of property by any Subsidiary in compliance with Section 7.07 (i)
to the Borrower or (ii) to a wholly-owned Subsidiary;
	 
	 	(e)	 	Dispositions in the form of Investments to the extent permitted under
Section 7.02;
	 
	 	(f)	 	Dispositions in the form of leases, licenses or subleases of property in the
ordinary course of business and which do not materially interfere with the business of
the Borrower and its Subsidiaries; and
	 
	 	(g)	 	Dispositions in the form of assignments and licenses of IP Rights of the
Borrower and its Subsidiaries in the ordinary course of business.





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



     “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, any ERISA Affiliate.



     “Platform” has the meaning specified in Section 6.02.



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



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



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



     “Rental Expenses” means, for any period, for the Borrower and its Subsidiaries on a
consolidated basis, the sum of all rentals payable under leases of real, personal, or mixed
property.



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



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



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



     “Required Revolving Lenders” means, as of any date of determination, Revolving Credit Lenders
holding more than 50% of the sum of the (a) Total Revolving Credit Outstandings (with the aggregate
amount of each Revolving Credit Lender’s risk participation and funded participation in L/C
Obligations and Swing Line Loans being deemed “held” by such Revolving Credit Lender for purposes
of this



16









 







definition) and (b) aggregate unused Revolving Credit Commitments; provided that
the unused Revolving Credit Commitment of, and the portion of the Total Revolving Credit
Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Revolving Lenders.



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



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



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



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



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



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



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



     “Revolving Credit Note” means a promissory note made by the Borrower in favor of a Revolving
Credit Lender evidencing Revolving Credit Loans or Swing Line Loans, as the case may be, made by
such Revolving Credit Lender, substantially in the form of Exhibit C-2.



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



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



     “Solvent” and “Solvency” mean, with respect to any Person, on any date of determination, that
on such date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the present fair salable value
of the assets of such



17









 







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



     “Spinoff” means the separation of the Borrower from its ultimate parent, Synovus Financial
Corp., through the Distributions (as defined in the Distribution Agreement) made in accordance with
the terms of the Distribution Agreement.



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



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



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



     “Swing Line” means the swing line subfacility established pursuant to Section 2.03.



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



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




18












 





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



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



     “Swing Line Sublimit” means an amount equal to the lesser of (a) $30,000,000 and (b) the
Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate
Commitments.



     “Syndication Agent” means The Royal Bank of Scotland plc, in its capacity as syndication
agent under any of the Loan Documents, or any successor syndication agent.



     “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession
of property creating obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).



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



     “Tax Sharing Agreement” has the meaning given to it in the Distribution Agreement.



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



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



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



     “Term Loan Facility” means, at any time, (a) on or prior to the Closing Date, the aggregate
amount of the Term  Loan Commitments at such time, and (b) thereafter, the aggregate principal
amount of the Term Loans of all Term Loan Lenders outstanding at such time.



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



     “Term Note” means a promissory note made by the Borrower in favor of a Term Loan Lender
evidencing Term Loans made by such Term Loan Lender, substantially in the form of Exhibit C-1.



     “Threshold Amount” means $50,000,000.



19









 





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



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



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



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



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



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



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



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



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



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



20









 





     1.03. Accounting Terms.



     (a) Generally. All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data (including financial ratios and other
financial calculations) required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements, except as
otherwise specifically prescribed herein.



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



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



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



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



ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS




     2.01. The Loans.



     (a) Term Loan Borrowing. Subject to the terms and conditions set forth herein, each
Term Loan Lender severally agrees to make a single loan to the Borrower during the applicable
Availability Period in an amount not to exceed such Term Loan Lender’s Term Loan Commitment. The
Term Loan Borrowing shall consist of Term Loans made simultaneously by the Term Loan Lenders in
accordance with their respective Applicable Percentage of the Term Loan Facility. Amount borrowed
under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term Loans may be Base
Rate Loans or Eurodollar Rate Loans, as further provided herein.



21









 





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



     2.02. Borrowings, Conversions and Continuations of Loans.



     (a) Each Term Loan Borrowing, each Revolving Credit Borrowing, each conversion of Term Loans
or Revolving Credit Loans from one Type to the other, and each continuation of Eurodollar Rate
Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may
be given by telephone. Each such notice must be received by the Administrative Agent not later
than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion
to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base
Rate Loans, and (ii) on the requested date of any Borrowing of Base Rate Loans; provided,
however, that if the Borrower wishes to request Eurodollar Rate Loans having an Interest
Period other than one week or one, two, three or six months in duration as provided in the
definition of “Interest Period,” the applicable notice must be received by the Administrative Agent
not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing,
conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the
Lenders of such request and determine whether the requested Interest Period is acceptable to all of
them. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing,
conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be
by telephone) whether or not the requested Interest Period has been consented to by all the
Lenders. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Committed Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Borrowing of, conversion to or
continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $500,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each
Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole
multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Term Loan Borrowing, a Revolving Credit
Borrowing, a conversion of Term Loans or Revolving Credit Loans from one Type to the other, or a
continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing, conversion or
continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which
existing Term Loans or Revolving Credit Loans are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of
Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a
conversion or continuation, then the applicable Term Loans or Revolving Credit Loans shall be made
as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
Eurodollar Rate Loans. If the Borrower requests a Borrowing of,



22









 







conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but
fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one
month.



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



     (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
an Event of Default, no Loans may be requested as, converted to or continued as Eurodollar Rate
Loans without the consent of the Required Lenders; provided that, notwithstanding
the foregoing, nothing herein shall prevent the exercise of the rights and remedies provided for in
Section 8.02 upon the occurrence of an Event of Default.



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



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



     2.03. Letters of Credit.



     (a) The Letter of Credit Commitment.




     (i) Subject to the terms and conditions set forth herein, (A) the L/C Issuer agrees, in
reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to
time on any Business Day during the period from the Closing Date until the applicable Letter
of Credit Expiration Date, to issue Letters of Credit for the account of the Borrower or its
Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with
subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the
Revolving Credit Lenders severally



23









 







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




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




     (A) the expiry date of such requested Letter of Credit would occur more than
twelve months after the date of issuance (or in the case of Auto-Extension Letters
of Credit contemplated in Section 2.03(b)(iii), more than twelve months after the
effective date of the most-recent extension of such Letter of Credit) unless the
Required Lenders have approved such expiry date; or




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




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




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




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




     (C) except as otherwise agreed by the Administrative Agent and the L/C Issuer,
such Letter of Credit is in an initial stated amount less than $100,000, in the case
of a standby Letter of Credit;




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



24









 






     (E) a default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C Issuer
has entered into satisfactory arrangements with the Borrower or such Lender to
eliminate the L/C Issuer’s risk with respect to such Lender.




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




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




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



     (b) Procedures for Issuance and Amendment of Letters of Credit.




     (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the Administrative Agent
[which may be provided as contemplated by Section 2.03(b)(ii)]) in the form of a Letter of
Credit Application, appropriately completed and signed by a Responsible Officer of the
Borrower. Such Letter of Credit Application must be received by the L/C Issuer and the
Administrative Agent not later than 11:00 a.m. at least two Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or date of amendment,
as the case may be. In the case of a request for an initial issuance of a Letter of Credit,
such Letter of Credit Application shall specify in form and detail reasonably satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof; (D) the name
and address of the beneficiary thereof; (E) the documents to be presented by such
beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be
presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature
of the requested Letter of Credit; and (H) such other matters as the L/C Issuer may
reasonably require. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of amendment
thereof (which shall be a Business Day); (C) the nature of the proposed amendment; and
(D) such other matters as the L/C Issuer may require. Additionally, the Borrower shall
furnish to the L/C Issuer and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Administrative Agent may reasonably require.




     (ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer will
confirm with the Administrative Agent (by telephone or in writing) that the Administrative
Agent



25









 







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




     (iii) If the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an “Auto-Extension Letter of Credit”);
provided that any such Auto-Extension Letter of Credit must permit the L/C Issuer to
prevent any such extension at least once in each twelve-month period (commencing with the
date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof
not later than a day (the “Non-Extension Notice Date”) in each such twelve-month period to
be agreed upon at the time such Letter of Credit is issued. Unless otherwise directed by
the L/C Issuer, the Borrower shall not be required to make a specific request to the L/C
Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the
Lenders shall be deemed to have authorized (but may not require) the L/C Issuer to permit
the extension of such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer has determined that it would not
be permitted, or would have no obligation, at such time to issue such Letter of Credit in
its revised form (as extended) under the terms hereof (by reason of the provisions of
clause (ii) or (iii) of Section 2.03(a) or otherwise), or (B) it has received notice (which
may be by telephone or in writing) on or before the day that is seven Business Days before
the Non-Extension Notice Date from the Administrative Agent, any Lender or the Borrower that
one or more of the applicable conditions specified in Section 4.02 is not then satisfied,
and in each such case directing the L/C Issuer not to permit such extension.




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



     (c) Drawings and Reimbursements; Funding of Participations.




     (i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a
drawing under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by the
L/C Issuer under a Letter of Credit (each such date, an “Honor Date”), the Borrower shall
reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount
of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Revolving Credit Lender of the Honor Date,
the amount of the unreimbursed drawing (the “Unreimbursed Amount”), and the amount of such
Revolving Credit Lender’s Applicable Revolving Credit Percentage thereof. In such event,
the Borrower shall be



26









 







deemed to have requested a Revolving Credit Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to
the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate
Loans, but subject to the amount of the unutilized portion of the Revolving Credit
Commitments and the conditions set forth in Section 4.02 (other than the delivery of a
Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent
pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect
the conclusiveness or binding effect of such notice. The failure of the Borrower to
reimburse the L/C Issuer for the amount of a drawing under a Letter of Credit shall not
result in a Default or Event of Default if the unutilized portion of the Revolving Credit
Commitments and the conditions set forth in Section 4.02 (other than the delivery of a
Committed Loan Notice) would permit the Borrower to borrow Base Rate Loans in the amount of
the applicable Unreimbursed Amount.




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




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




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




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



27









 







payment made by the L/C Issuer under any Letter of Credit, together with interest as
provided herein.




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



     (d) Repayment of Participations.




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




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



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




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




     (ii) the existence of any claim, counterclaim, setoff, defense or other right that the
Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may



28









 







be acting), the L/C Issuer or any other Person, whether in connection with this
Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement
or instrument relating thereto, or any unrelated transaction;




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




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




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



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



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



29









 







order, without responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the validity or
sufficiency of any instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.



     (g) Cash Collateral. Upon the request of the Administrative Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing
has resulted in an L/C Borrowing, or (ii) if, as of the Letter of Credit Expiration Date, any L/C
Obligation for any reason remains outstanding, the Borrower shall, in each case, promptly upon
demand Cash Collateralize the then Outstanding Amount of all L/C Obligations. Sections 2.05 and
8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For
purposes of this Section 2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize” means to
pledge and deposit with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account balances
(collectively “Cash Collateral”) pursuant to documentation in form and substance reasonably
satisfactory to the Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders). Derivatives of such term have corresponding meanings. The Borrower hereby
grants to the Administrative Agent, for the benefit of the L/C Issuer and the Lenders, a security
interest in all such cash, deposit accounts and all balances therein and all proceeds of the
foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing deposit accounts
at Bank of America. Upon the request of the Borrower, to the extent that the amount of Cash
Collateral exceeds the aggregate Outstanding Amount of all L/C Obligations required to be Cash
Collateralized, the excess shall be promptly refunded to the Borrower. In addition, upon request
of the Borrower, following the cessation, cure or waiver of any event of condition giving rise to
an obligation to Cash Collateralize under this Agreement, the Cash Collateral shall promptly be
refunded to the Borrower.



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



     (i) Letter of Credit Fees. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to
the Applicable Rate times the maximum amount available to be drawn under such Letter of
Credit. For purposes of computing the maximum amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06.
Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each
March, June, September and December, commencing with the first such date to occur after the
issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand
and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate
during any quarter, the daily amount available to be drawn under each Letter of Credit shall be
computed and multiplied by the Applicable Rate separately for each period during such quarter that
such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein,
upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit
Fees shall accrue at the Default Rate.



     (j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The
Borrower shall pay directly to the L/C Issuer for its own account a fronting fee with respect to
each Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily
amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such
fronting fee shall be due and payable on the tenth Business Day after the end of each March, June,
September and December in respect of the most recently-ended quarterly period (or portion thereof,
in the case of the first payment),



30









 







commencing with the first such date to occur after the issuance of such Letter of Credit, on
the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily
amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall
be determined in accordance with Section 1.06. In addition, the Borrower shall pay directly to the
L/C Issuer for its own account the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from
time to time in effect. Such customary fees and standard costs and charges are due and payable on
demand and are nonrefundable.



     (k) Conflict with Issuer Documents. In the event of any conflict between the terms
hereof and the terms of any Issuer Document, the terms hereof shall control. If any Letter of
Credit Application includes representations and warranties, covenants and/or events of default that
do not contain the materiality qualifiers, exceptions or thresholds that are applicable to the
analogous provisions of this Agreement or other Loan Documents, or are otherwise more restrictive,
the relevant qualifiers, exceptions and thresholds contained herein shall be incorporated therein
or, to the extent more restrictive, shall be deemed for the purposes of such Letter of Credit
Application to be the same as the analogous provisions herein.



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



     2.04. Swing Line Loans.



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



     (b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Borrower’s
irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent
not



31









 







later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be
borrowed, which shall be a minimum of $1,000,000, and (ii) the requested borrowing date, which
shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the
Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after receipt by the Swing
Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the
Administrative Agent (by telephone or in writing) that the Administrative Agent has also received
such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received
notice (by telephone or in writing) from the Administrative Agent (including at the request of any
Revolving Credit Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing
(A) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limitations
set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of
the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms
and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date
specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the
Borrower.



     (c) Refinancing of Swing Line Loans.




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




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




     (iii) If any Revolving Credit Lender fails to make available to the Administrative
Agent for the account of the Swing Line Lender any amount required to be paid by such Lender
pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in
Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest thereon for
the period



32









 







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




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



     (d) Repayment of Participations.




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




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



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



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



33









 





     2.05. Prepayments.



     (a) The Borrower may, upon notice to the Administrative Agent, at any time or from time to
time voluntarily prepay Term Loans and Revolving Credit Loans in whole or in part without premium
or penalty; provided that (i) such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof; and (iii) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or
a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid,
the Interest Period(s) of such Loans. The Administrative Agent will promptly notify each Lender of
its receipt of each such notice, and of the amount of such Lender’s Applicable Percentage of such
prepayment. If such notice is given by the Borrower, the Borrower shall make such prepayment and
the payment amount specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the
amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such
prepayment of the outstanding Loans shall be paid to the Lenders in accordance with their
respective Applicable Percentages in respect of each of the relevant Facilities.



     (b) The Borrower may, upon notice to the Swing Line Lender (with a copy to the Administrative
Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part
without premium or penalty; provided that (i) such notice must be received by the Swing
Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment,
and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice
shall specify the date and amount of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein.



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



     (d) Prepayments of the Revolving Credit Facility made pursuant to Section 2.05 (c),
first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans,
second, shall be applied ratably to the outstanding Revolving Credit Loans, and,
third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing
of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall
be applied (without any further action by or notice to or from the Borrower) to reimburse the L/C
Issuer or the Revolving Credit Lenders, as applicable.



     2.06. Termination or Reduction of Commitments. The Borrower may, upon notice to the Administrative
Agent, terminate the Revolving Credit Facility, the Letter of Credit Sublimit, or the Swing Line
Sublimit, or from time to time permanently reduce the Revolving Credit Facility, the Letter of
Credit Sublimit, or the Swing Line Sublimit; provided that (i) any such notice shall be
received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date
of termination or



34









 







reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any
whole multiple of $1,000,000 in excess thereof, and (iii) the Borrower shall not terminate or
reduce (A) the Revolving Credit Facility if, after giving effect thereto and to any concurrent
prepayments hereunder, the Total Revolving Credit Outstandings would exceed the Revolving Credit
Facility, (B) the Letter of Credit Sublimit, if, after giving effect thereto, the Outstanding
Amount of the L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of
Credit Sublimit, or (C) the Swing Line Sublimit if, after giving effect thereto and to any
concurrent payments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing
Line Sublimit. The Administrative Agent will promptly notify the Revolving Credit Lenders of any
such notice of termination or reduction of the Revolving Credit Facility, Letter of Credit Sublimit
or Swing Line Sublimit. Any reduction of the Revolving Credit Facility, the Letter of Credit
Sublimit, or the Swing Line Sublimit shall be applied to the Revolving Credit Commitment of each
Revolving Credit Lender according to its Applicable Revolving Credit Percentage. All fees in
respect of the Revolving Credit Facility accrued until the effective date of any termination of the
Revolving Credit Facility, the Letter of Credit Sublimit, or the Swing Line Sublimit shall be paid
on the effective date of such termination.



     2.07. Repayment of Loans.



     (a) Term Loans. The Borrower shall repay to the Term Loan Lenders on the Maturity
Date for the Term Loan Facility, the aggregate principal amount of Term Loans outstanding on such
date.



     (b) Revolving Credit Loans. The Borrower shall repay each Revolving Credit Lender on
the Maturity Date for the Revolving Credit Facility applicable to such Revolving Credit Lender, the
aggregate principal amount of Revolving Credit Loans owed to such Revolving Credit Lender
outstanding on such date.



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



     2.08. Interest.



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



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




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



35









 






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



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



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



     (a) Facility Fee. The Borrower shall pay to the Administrative Agent for the account
of each Revolving Credit Lender in accordance with its Applicable Revolving Credit Percentage, a
facility fee equal to the Applicable Rate times the actual daily amount of the Revolving
Credit Facility (or, if the Revolving Credit Facility has terminated, on the Outstanding Amount of
all Revolving Credit Loans, Swing Line Loans and L/C Obligations), regardless of usage. The
facility fee for each Revolving Credit Lender shall accrue at all times during the applicable
Availability Period (and thereafter so long as any Revolving Credit Loan, Swing Line Loans or L/C
Obligations remain outstanding), including at any time during which one or more of the conditions
in Article IV is not met, and shall be due and payable to such Revolving Credit Lender quarterly in
arrears on the last Business Day of each March, June, September and December, commencing with the
first such date to occur after the Closing Date, and on the last day of the applicable Availability
Period (and, if applicable, thereafter on demand). The facility fee shall be calculated quarterly
in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily
amount shall be computed and multiplied by the Applicable Rate separately for each period during
such quarter that such Applicable Rate was in effect.



     (b) Utilization Fee. The Borrower shall pay to the Administrative Agent for the
account of each Revolving Credit Lender in accordance with its Applicable Revolving Credit
Percentage, a utilization fee equal to the Applicable Rate times the Total Revolving Credit
Outstandings on each day that the Total Revolving Credit Outstandings exceed 50% of the actual
daily amount of the Revolving Credit Facility then in effect (or, if terminated, in effect
immediately prior to such termination). The utilization fee shall be due and payable to each
Revolving Credit Lender quarterly in arrears on the last Business Day of each March, June,
September and December, commencing with the first such date to occur after the Closing Date, and on
the last day of the applicable Availability Period (and, if applicable, thereafter on demand). The
utilization fee shall be calculated quarterly in arrears and if there is any change in the
Applicable Rate during any quarter, the daily amount shall be computed and multiplied by the
Applicable Rate for each period during which such Applicable Rate was in effect. The utilization
fee shall accrue at all times, including at any time during which one or more of the conditions in
Article IV is not met.



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



     2.10. Computation of Interest and Fees. All computations of interest for Base Rate Loans when the
Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year of
365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and
interest shall be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year).
Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall, subject to
Section 2.12(a), bear interest for one day.



36









 





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



     2.11. Evidence of Debt.



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



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



     2.12. Payments Generally; Administrative Agent’s Clawback.



     (a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff (except as otherwise provided in
Section 3.01 with respect to Taxes). Except as otherwise expressly provided herein, all payments
by the Borrower hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars
and in immediately available funds not later than 2:00 p.m. on the date specified herein. The
Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other
applicable share as provided herein) of such payment in like funds as received by wire transfer to
such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m.
shall be deemed received on the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other
than a Business Day, payment shall be made on the next following Business Day, and such extension
of time shall be reflected in computing interest or fees, as the case may be.



     (b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to
12:00 noon on the date of such Borrowing) that such Lender will not make available to the
Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume
that such Lender has made such share available on such date in accordance with Section 2.02 (or, in
the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in
accordance with and at the time required by Section 2.02) and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the



37









 







applicable Borrowing available to the Administrative Agent, then the applicable Lender and the
Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding
amount in immediately available funds with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the
Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation, plus any administrative, processing or similar fees
customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the
case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If
the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of
such interest paid by the Borrower for such period. If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such
Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice
to any claim the Borrower may have against a Lender that shall have failed to make such payment to
the Administrative Agent.




     (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which
any payment is due to the Administrative Agent for the account of the Lenders or the L/C
Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may
assume that the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case
may be, the amount due. In such event, if the Borrower has not in fact made such payment,
then each of the Lenders or the L/C Issuer, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such Lender or the
L/C Issuer, in immediately available funds with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the date of payment to
the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by
the Administrative Agent in accordance with banking industry rules on interbank
compensation. Any such repayment by any Lender shall be without prejudice to any claim such
Lender may have against the Borrower with respect to the amount of such payment and interest
thereon.



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



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



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



38









 





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



     2.13. Sharing of Payments by Lenders. If any Lender shall, by exercising any right of setoff or
counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any the
Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time
in excess of its ratable share (according to the proportion of (i) the amount of such Obligations
due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities due and payable to all Lenders hereunder and under the other Loan
Documents at such time) of payments on account of the Obligations in respect of the Facilities due
and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by
all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not
due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess
of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but
not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in
respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the
other Loan Documents at such time) of payment on account of the Obligations in respect of the
Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan
Documents at such time obtained by all of the Lenders at such time then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans and subparticipations in L/C Obligations and Swing
Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or
owing (but not due and payable ) to the Lenders, as the case may be, provided that:




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




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



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



     2.14. Extension of Maturity Date in respect of the Revolving Credit Facility.



     (a) Requests for Extension. Prior to each of the first and second anniversary of the
Closing Date, the Borrower may, by notice to the Administrative Agent (who shall promptly notify
the Revolving Credit Lenders), request that each Revolving Credit Lender extend the Maturity Date
then in effect for the Revolving Credit Facility for an additional year; provided that,
(i)  the Borrower is limited to making only two such extensions requests and may only make one
extension request in any twelve-month period; (ii)  any such extension request must be made no
earlier than 45 days prior to, and no later than 30 days prior



39









 







to, the first or the second anniversary of the Closing Date, as the case may be (the “Subject
Anniversary Date”); and (iii) no Default then exists or arises after giving effect to such
requested extension of the Maturity Date of the Revolving Credit Facility.



     (b) Lender Elections to Extend. Each Revolving Credit Lender, acting in its sole and
individual discretion, shall, by notice to the Administrative Agent, given not later than the date
(the “Notice Date”) that is 20 days prior to the applicable Subject Anniversary Date, advise the
Administrative Agent whether or not such Lender agrees to such extension (and each Lender that
determines not to so extend the Maturity Date of the Revolving Credit Facility (a “Non-Extending
Lender”) shall notify the Administrative Agent of such fact promptly after such determination (but
in any event no later than the Notice Date) and any Lender that does not so advise the
Administrative Agent on or before the Notice Date shall be deemed to be a Non-Extending Lender.
The election of any Revolving Credit Lender to agree to such extension shall not obligate any other
Revolving Credit Lender to so agree.



     (c) Notification by Administrative Agent. The Administrative Agent shall notify the
Borrower of each Revolving Credit Lender’s determination under this Section no later than the date
15 days prior to the applicable Subject Anniversary Date (or, if such date is not a Business Day,
on the next preceding Business Day).



     (d) Additional Commitment Lenders. The Borrower shall have the right to replace each
Non-Extending Lender with, and add as “Lenders” under this Agreement in place thereof, one or more
Eligible Assignees (each, an “Additional Commitment Lender”) as provided in Section 10.13;
provided that each of such Additional Commitment Lenders shall enter into an Assignment and
Assumption pursuant to which such Additional Commitment Lender shall, effective as of the
applicable Subject Anniversary Date, undertake a Commitment (and, if any such Additional Commitment
Lender is already a Lender, its Commitment shall be in addition to such Lender’s Commitment
hereunder on such date).



     (e) Minimum Extension Requirement. If (and only if) the total of the Revolving Credit
Commitments of the Revolving Credit Lenders that have agreed so to extend the Maturity Date of the
Revolving Credit Facility (each, an “Extending Lender”) and the additional Revolving Credit
Commitments of the Additional Commitment Lenders shall be more than 50% of the aggregate amount of
the Revolving Credit Commitments in effect immediately prior to the applicable Subject Anniversary
Date, then, effective as of the applicable Subject Anniversary Date, the Maturity Date of the
Revolving Credit Facility for each Extending Lender and each Additional Commitment Lender shall be
extended one additional year (except that, if such date is not a Business Day, such Maturity Date
of the Revolving Credit Facility as so extended shall be the next preceding Business Day), and each
Additional Commitment Lender shall thereupon become a “Lender” for all purposes of this Agreement.



     (f) Extensions of Swing Line and Letter of Credit Subfacilities. To the extent that
the Swing Line Lender or the L/C Lender is also a Revolving Credit Lender, then the election of
such Revolving Credit Lender with respect to the extension of the maturity of the Revolving Credit
Facility shall be binding upon the Swing Line Lender and/or the L/C Issuer, as the case may be. If
the Swing Line Lender or the L/C Issuer is not otherwise a Revolving Credit Lender, such Swing Line
Lender or L/C Issuer, as the case may be, shall have all the rights of a Revolving Credit Lender
under this Section 2.14.



     (g) Conditions to Effectiveness of Extensions. As a condition precedent to such
extension, the Borrower shall deliver to the Administrative Agent a certificate dated as of the
applicable Subject Anniversary Date signed by a Responsible Officer of the Borrower (i) certifying
and attaching the resolutions adopted by the Borrower approving or consenting to such extension and
(ii) certifying that, immediately before and immediately after giving effect to such extension,
(A) the representations and warranties contained in Article V and the other Loan Documents are true
and correct in all material



40









 







respects on and as of the applicable Subject Anniversary Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which case they are true
and correct as of such earlier date, and except that for purposes of this Section 2.14, the
representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed
to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively,
of Section 6.01, and (B) no Default exists. In addition, on the applicable Subject Anniversary
Date, the Borrower shall prepay any Revolving Credit Loans outstanding on such date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to keep outstanding
Revolving Credit Loans ratable with any revised Applicable Percentages of the respective Revolving
Credit Lenders effective as of such date.



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



     2.15. Increase in Commitments.



     (a) Request for Increase. Provided there exists no Default, upon notice to the
Administrative Agent (which shall promptly notify the Revolving Credit Lenders), the Borrower may
from time to time request increases in the Revolving Credit Facility by an aggregate amount not
exceeding $330,000,000; provided that (i) any such request for an increase shall be in a
minimum amount of $5,000,000; (ii) no more than four such requests for an increase may be made by
the Borrower. At the time of sending such notice, the Borrower (in consultation with the
Administrative Agent) shall specify the time period within which each Revolving Credit Lender is
requested to respond (which shall in no event be less than ten Business Days from the date of
delivery of such notice to the Revolving Credit Lenders); and (iii) the Commitments of all of the
Revolving Credit Lenders have not expired or been terminated at the time of such request.



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



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



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



     (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of the Borrower (i) certifying and attaching the resolutions adopted by the
Borrower approving or consenting to such increase, and (ii) certifying that, before and after
giving effect to such increase, (A) the representations



41









 







and warranties contained in Article V and the other Loan Documents are true and correct on and
as of the Increase Effective Date, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct as of such earlier
date, and except that for purposes of this Section 2.15, the representations and warranties
contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent
statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (B) no
Default exists. The Borrower shall prepay any Revolving Credit Loans outstanding on the Increase
Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent
necessary to keep the outstanding Revolving Credit Loans ratable with any revised Applicable
Revolving Credit Percentages arising from any nonratable increase in the Revolving Credit
Commitments under this Section.



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



ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY




     3.01. Taxes.



     (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Borrower hereunder or under any other Loan Document shall be made free and clear of and
without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if
the Borrower shall be required by applicable law to deduct any Indemnified Taxes (including any
Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or L/C Issuer, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.



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



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



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



42









 





     (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



     Without limiting the generality of the foregoing, in the event that the Borrower is resident
for tax purposes in the United States, any Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior
to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to
time thereafter upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is applicable:




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




     (ii) duly completed copies of Internal Revenue Service Form W-8ECI,




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




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



     (f) Treatment of Certain Refunds. If the Administrative Agent, any Lender or the L/C
Issuer determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the L/C Issuer, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the L/C Issuer, agrees to repay the amount paid over to the
Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the L/C Issuer in the event the
Administrative Agent, such Lender or the L/C Issuer is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative
Agent, any Lender or the L/C Issuer to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrower or any other Person.



43









 





     3.02. Illegality. If any Lender reasonably determines that any Law has made it unlawful, or that
any Governmental Authority has asserted that it is unlawful, for such Lender or its applicable
Lending Office to make, maintain or fund Eurodollar Rate Loans, or to determine or charge interest
rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material
restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars
in the London interbank market, then, on notice thereof by such Lender to the Borrower through the
Administrative Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans or to
convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until such Lender notifies the
Administrative Agent and the Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, the Borrower shall, upon demand from such Lender (with
a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of
such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such
Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans. Upon any such
prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or
converted.



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



     3.04. Increased Costs; Reserves on Eurodollar Rate Loans.



     (a) Increased Costs Generally. If any Change in Law shall:




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




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




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



44









 





and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or
to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining
any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or
the L/C Issuer accompanied by a certificate described in the immediately following clause (c), the
Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or
amounts as are reasonably necessary to compensate such Lender or the L/C Issuer, as the case may
be, for such additional costs incurred or reduction suffered.



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



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



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



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



45









 







copy to the Administrative Agent) of such additional interest from such Lender. If a Lender
fails to give notice 10 days prior to the relevant Interest Payment Date, such additional interest
shall be due and payable 10 days from receipt of such notice.



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



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



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



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



including any loss of anticipated profits and any loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained. The Borrower shall also pay any customary
administrative fees reasonably charged by such Lender in connection with the foregoing.



For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar
Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodollar
market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate
Loan was in fact so funded. If requested by the Borrower, any Lender demanding payment under this
Section shall deliver to the Borrower a calculation of such Lender setting forth in reasonable
detail the amount believed by the Lender to be payable under this Section.



     3.06. Mitigation Obligations; Replacement of Lenders.



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



     (b) Replacement of Lenders. If any Lender requests compensation under Section 3.04,
or if the Borrower is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 3.01, or any Lender gives a notice
under Section 3.02, the Borrower may replace such Lender in accordance with Section 10.13.



46









 





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



ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS




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



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




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




     (ii) a Revolving Credit Note executed by the Borrower in favor of each Revolving Credit
Lender requesting a Revolving Credit Note; and a Term Note executed by the Borrower in favor
of each Term Loan Lender requesting a Term Note;




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




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




     (v) a favorable opinion of Alston & Bird LLP, counsel to the Borrower, addressed to the
Administrative Agent and each Lender, as to the matters set forth in Exhibit F and such
other matters concerning the Borrower and the Loan Documents as the Required Lenders may
reasonably request;




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




     (vii) a certificate signed by a Responsible Officer of the Borrower certifying (A) that
the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has
been no event or circumstance since the date of the Audited Financial Statements that has
had or could be reasonably expected to have, either individually or in the aggregate, a
Material Adverse Effect; and (C) the current Debt Ratings, which must not be lower than
BBB/Baa2;



47









 






     (viii) a certificate signed by a Responsible Officer of the Borrower, (x) certifying
that a true and correct copy of each of the Ancillary Agreements are available in the public
files of the SEC or have been delivered to the Administrative Agent; (y) confirming that any
material amendments or modifications to such agreements have been either filed with the SEC
or delivered to the Administrative Agent; and (z) confirming that such agreements remain in
full force and effect as of the Closing Date; and




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



     (b) Any fees required to be paid to the Administrative Agent, the Arrangers, or the Lenders on
or before the Closing Date shall have been paid.



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



     (d) The Closing Date shall have occurred on or before December 31, 2007.



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



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



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



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



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



48









 





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



ARTICLE V.

REPRESENTATIONS AND WARRANTIES




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



     5.01. Existence, Qualification and Power. The Borrower (a) is duly organized or formed, validly
existing and, as applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) subject to Section 5.14 of the
Distribution Agreement and the Assignment and Assumption Agreement, own or lease its assets and
carry on its business and (ii) execute, deliver and perform its obligations under the Loan
Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or license; except in each
case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably
be expected to have a Material Adverse Effect.



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



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



     5.04. Binding Effect. This Agreement has been, and each other Loan Document to which the Borrower
is a party, when delivered hereunder, will have been, duly executed and delivered by the Borrower.
This Agreement constitutes, and each other Loan Document to which the Borrower is a party when so
delivered will constitute, a legal, valid and binding obligation of the Borrower, enforceable
against the Borrower in accordance with its terms.



     5.05. Financial Statements; No Material Adverse Effect.



     (a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein;
(ii) fairly present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date thereof and their results of operations for the period covered thereby
in accordance with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of the Borrower and its Subsidiaries as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness to the extent required to be shown
under GAAP.



49









 





     (b) The unaudited consolidated balance sheet of the Borrower and its Subsidiaries dated
September 30, 2007, and the related consolidated statements of income or operations, shareholders’
equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly
noted therein, and (ii) fairly present in all material respects the financial condition of the
Borrower and its Subsidiaries as of the date thereof and their results of operations for the period
covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to
normal year-end audit adjustments.



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



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



     5.07. No Default. Neither the Borrower nor any Subsidiary thereof is in default under or with
respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.



     5.08. Ownership of Property; Liens. Subject to Section 5.14 of the Distribution Agreement and the
Assignment and Assumption Agreement, each of the Borrower and each Subsidiary has good record and
marketable title in fee simple to, or valid leasehold interests in, all real property necessary or
used in the ordinary conduct of its business, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
property of the Borrower and its Subsidiaries is subject to no Liens, other than Liens permitted by
Section 7.01.



     5.09. Insurance. The properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, in such amounts, with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or the applicable
Subsidiary operates.



     5.10. Environmental Compliance. The Borrower and its Subsidiaries are in compliance with all
Environmental Laws except for any such non-compliance which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.



     5.11. Taxes. The Borrower and its Subsidiaries have filed all Federal, state and other material
tax returns and reports required to be filed, and have paid all Federal, state and other material
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested as
permitted under Section 6.04. There is no proposed tax assessment against the Borrower or any
Subsidiary that would, if made, have a Material Adverse Effect. Neither the Borrower nor any
Subsidiary thereof is party to any tax sharing agreement, other than the Tax Sharing Agreement.



     5.12. ERISA Compliance.



50









 





     (a) Each Plan is in compliance in all material respects with the applicable provisions of
ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under
Section 401(a) of the Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with respect thereto and, to
the best knowledge of the Borrower, nothing has occurred which would prevent, or cause the loss of,
such qualification which could reasonably be expected to have a Material Adverse Effect. The
Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to
Section 412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.



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



     (c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan,
individually or in the aggregate with any other Pension Plan, has Unfunded Pension Liabilities in
excess of the Threshold Amount; (iii) neither the Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event
has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and
(v) neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject
to Section 4069 or 4212(c) of ERISA.



     5.13. Subsidiaries; Equity Interests. As of the Closing Date, the Borrower has no Subsidiaries
other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding
Equity Interests in such Subsidiaries have been validly issued, are, in the case of Equity
Interests in corporations, fully paid and nonassessable and are owned by the Borrower in the
amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens other than Liens
permitted pursuant to Section 7.01. As of the Closing Date, the Borrower has no equity investments
in any other corporation or entity other than those specifically disclosed in Part(b) of Schedule
5.13.



     5.14. Margin Regulations; Investment Company Act.



     (a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock. Following the application of the proceeds of each Borrowing or drawing under each
Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of
Section 7.01 or Section 7.04 or subject to any restriction contained in any agreement or instrument
between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and
within the scope of Section 8.01(e) will be margin stock.



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



51









 





     5.15. Solvency. On the Closing Date, at the time of each Borrowing hereunder, and after giving
effect to the use of the proceeds of each Loan, the Borrower, individually, and the Borrower and
its Subsidiaries, on a consolidated basis, are Solvent.



     5.16. Disclosure. All agreements, instruments and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to the Borrower, that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect, have been disclosed to the Administrative Agent and the Lenders or are disclosed in the
Borrower’s public filings with the SEC. No report, financial statement, certificate or other
information furnished in writing by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the transactions contemplated hereby and the negotiation of this
Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or
supplemented by other information so furnished) contains any misstatement of fact or omits to state
any fact necessary to make the statements therein, in the light of the circumstances under which
they were made, not materially misleading; provided that, with respect to projected
financial information and other forward-looking information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed by the Borrower to be
reasonable at the time.



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



     5.18. Use of Proceeds. The proceeds of the Term Loans will be used by the Borrower to finance, in
part, a one-time special cash dividend to the Borrower’s shareholders, in accordance with the
Distribution Agreement, and the proceeds of the Revolving Credit Facility will be used by the
Borrower for working capital and other lawful corporate purposes, including the financing of the
repurchase by the Borrower of the Borrower’s capital stock.



     5.19. Intellectual Property; Licenses, Etc. Subject to the immediately following sentence, the
Borrower and its Subsidiaries own, or possess the right to use, all of the material trademarks,
service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other
intellectual property rights (collectively, “IP Rights”) that are used in the operation of their
respective businesses, without material conflict with the rights of any other Person. To the best
knowledge of the Borrower, no slogan or other advertising device, product, process, method,
substance, part or other material now employed, or now contemplated to be employed, by the Borrower
or any Subsidiary infringes upon any rights held by any other Person other than infringements that
could not, either individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Borrower, threatened, which, either individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.



     5.20. Taxpayer Identification Number. The Borrower’s correct U.S. taxpayer identification number
is set forth on Schedule 10.02.



     5.21. Amendment to Material Documents. The Distribution Agreement, the Tax Sharing Agreement and
the other Ancillary Agreements have not been amended or modified in a manner that would adversely
impact the Loan Documents or the Lenders’ rights and the Borrower’s obligations under the Loan
Documents.



52









 





ARTICLE VI.

AFFIRMATIVE COVENANTS




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



     6.01. Financial Statements. Deliver to the Administrative Agent and each Lender, in form and
detail satisfactory to the Administrative Agent and the Required Lenders:



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



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



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



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



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



     (b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the board of directors
(or the audit committee of the board of directors) of the Borrower by independent accountants in
connection with any audit of the accounts or books of the Borrower or any Subsidiary;



     (c) promptly after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the stockholders of the Borrower, and copies of
all



53









 







annual, regular, periodic and special reports and registration statements which the Borrower
may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange
Act of 1934, and not otherwise required to be delivered to the Administrative Agent pursuant
hereto;



     (d) promptly after the furnishing thereof, copies of any statement or report furnished to any
holder of debt securities of the Borrower or any Subsidiary thereof pursuant to the terms of any
indenture, loan or credit or similar agreement and not otherwise required to be furnished to the
Lenders pursuant to Section 6.01 or any other clause of this Section 6.02;



     (e) promptly, and in any event within five Business Days after receipt thereof by the Borrower
or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or
comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible
investigation or other inquiry by such agency regarding financial or other operational results of
the Borrower or any Subsidiary thereof; and



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



     Documents required to be delivered pursuant to Section 6.01 and 6.02 (c), (d), or (e) (to the
extent any such documents, or information contained in such documents, are included in materials
otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed
to have been delivered on the date on which each of the following has occurred: (i) such documents
are filed with the SEC and are accessible electronically by the Lenders and the Administrative
Agent; and (ii) the Borrower notifies (or shall arrange for the notification of) the Administrative
Agent and each Lender (by telecopier or electronic mail) of the filing of such documents.
Documents required to be delivered pursuant to Section 6.01 and 6.02 (to the extent any such
documents are not included in materials otherwise filed with the SEC in accordance with the
preceding sentence) may be delivered electronically and if so delivered, shall be deemed to have
been delivered on the date (i) on which the Borrower posts such documents, or provides a link
thereto on the Borrower’s website on the Internet at the website address listed on Schedule 10.02;
or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet
website (which the Administrative Agent agrees to do promptly upon receipt thereof), if any, to
which each Lender and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); provided that: the Borrower
shall notify (or shall arrange for the notification of) the Administrative Agent and each Lender
(by telecopier or electronic mail) of the posting of any such documents. Notwithstanding anything
contained herein, in every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 6.02(a) to the Administrative Agent. Except for such
Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery
or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.



     The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will
make available to the Lenders and the L/C Issuer materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower
Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of
the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material
non-public information with respect to the Borrower or its Affiliates, or the respective securities
of any of the foregoing, and who may be engaged in investment and other market-related activities
with respect to such Persons’ securities. The Borrower hereby agrees that so long as the Borrower
is the issuer of any outstanding debt or equity



54









 







securities that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (w) all Borrower Materials that are to be made available
to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower Materials as not
containing any material non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided, however,
that to the extent such Borrower Materials constitute Information, they shall be treated as set
forth in Section 10.07); (y) all Borrower Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor;” and (z) the
Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are
not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated
“Public Investor.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark
any Borrower Materials “PUBLIC.”



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



     (a) of the occurrence of any Default;



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



     (c) of the occurrence of any ERISA Event;



     (d) of any material change in accounting policies or financial reporting practices by the
Borrower or any Subsidiary; and



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



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



     6.04. Payment of Obligations. Pay and discharge as the same shall become due and payable, all its
obligations and liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being contested in good
faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP
are being maintained by the Borrower or such Subsidiary; (b) all lawful claims which, if unpaid,
would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any instrument or agreement
evidencing such Indebtedness; provided, however, failure of the Borrower or any Subsidiary to
comply with the immediately preceding clause (c) shall not constitute a Default or Event of Default
unless such failure shall result in a Default or Event of Default under Section 8.01(e).



55









 





     6.05. Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force and effect
its legal existence and good standing under the Laws of the jurisdiction of its organization except
in a transaction permitted by Section 7.03 or 7.04; (b) take all reasonable action to maintain all
rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct
of its business, except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect; and (c) preserve or renew all of its registered patents,
trademarks, trade names and service marks, the non-preservation of which could reasonably be
expected to have a Material Adverse Effect.



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



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



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



     6.09. Books and Records. Maintain proper books of record and account, in which all financial
transactions and matters involving the assets and business of the Borrower or such Subsidiary, as
the case may be, have been made in accordance with, and to the extent required by, GAAP
consistently applied.



     6.10. Inspection Rights. Permit representatives and independent contractors of the Administrative
Agent (at the expense of the Borrower) and each Lender (at their sole cost and expense) to visit
and inspect any of its properties, to examine its corporate, financial and operating records, and
make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants, at such reasonable times during normal
business hours and upon reasonable advance notice to the Borrower; provided,
however, that (i) prior to the occurrence and continuance of an Event of Default, no more
than two such inspections will be conducted by the Administrative Agent in any calendar year; and
(ii) when an Event of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the foregoing at the expense
of the Borrower at any time during normal business hours, without advance notice, and without
limitation on the frequency of such inspections.



     6.11. Use of Proceeds. Use the proceeds of the Credit Extensions for the purposes specified in
Section 5.18 and not in contravention of any Law or of any Loan Document.



ARTICLE VII.

NEGATIVE COVENANTS




     So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the
Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:



56









 





     7.01. Liens.



     (a) Enter into or permit to exist any arrangement or agreement which directly or indirectly
prohibits the Borrower or any Subsidiary from creating or incurring Liens on any of its assets (any
such arrangement or agreement a “Negative Pledge”), other than the following:



          (i) a Negative Pledge contained in any of the Loan Documents;



          (ii) a Negative Pledge contained in any agreement (x) evidencing Indebtedness secured by a
Lien permitted to exist under Section 7.01(b)(ii) or (ix) and (y) which prohibits the creation of
any other Lien on only the property securing such Indebtedness as of the date such agreement was
entered into or assumed (together with replacement property and customary provisions in respect of
proceeds, accessions, and other after-acquired property);



          (iii) provisions contained in leases and other agreements restricting the assignment,
sublease, or pledge of such lease or agreement;



          (iv) Negative Pledges existing on the date of this Agreement contained in the organizational
documents or other agreements binding on any Subsidiary that is not a wholly-owned Subsidiary (but
only to the extent such Negative Pledge covers any Equity Interest in such Subsidiary or the
property or assets of such Subsidiary);



          (v) a Negative Pledge contained in any agreements governing an Investment made in a Person
other than a Subsidiary (but only to the extent such Negative Pledge covers any Equity Interest in
such Person); or



          (vi) a Negative Pledge contained in any agreement relating to the Disposition of a Subsidiary
or assets pending such Disposition, provided that in any such case such Negative Pledge applies
only to the Subsidiary or the assets that are the subject of such Disposition; and



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



          (vii) Liens pursuant to any Loan Document;



          (viii) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or
extensions thereof, provided that (x) the value of the property covered thereby is not
changed (unless reduced), (y) the amount secured or benefited thereby is not increased, and (z) the
direct or any contingent obligor with respect thereto is not changed;



          (ix) Liens for taxes not yet due or which are being contested in good faith and by appropriate
proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;



          (x) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business which are not overdue for a period of more than 60 days
or which are being contested in good faith and by appropriate proceedings diligently conducted, if
adequate reserves with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;



57









 





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



          (xii) deposits to secure the performance of bids, trade contracts and leases (other than
Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business, but expressly excluding
any liens in favor of the PBGC or otherwise under ERISA;



          (xiii) easements, rights-of-way, restrictions and other similar encumbrances affecting real
property which, in the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;



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



          (xv) Liens securing Indebtedness in respect of capital leases, Synthetic Lease Obligations and
purchase money obligations for fixed or capital assets; provided, that (x) on any date of
determination the aggregate amount of all such Indebtedness secured by such Liens does not exceed
15% of the Book Value of the assets of the Borrower and its Subsidiaries in the aggregate; (y) such
Liens do not at any time encumber any property other than the property financed by such
Indebtedness (and the proceeds thereof); and (z) the Indebtedness secured thereby does not on the
date of acquisition exceed the cost or fair market value, whichever is lower, of the property being
acquired;



          (xvi) any Lien (x) existing on property of a Person at the time of its consolidation with or
merger into the Borrower or a Subsidiary or at the time such Person becomes a Subsidiary or
(y) existing on any property acquired by the Borrower or any Subsidiary at the time such property
is so acquired (whether or not the Indebtedness secured thereby shall have been assumed); provided
that in each such case, (A) such Lien was not created or assumed in contemplation of such
consolidation or merger or such Person’s becoming a Subsidiary or such acquisition of property and
(B) such Lien shall extend solely to the property so acquired or in the case of an acquisition of a
Subsidiary, the assets of the Subsidiary, and in each case, proceeds thereof;



          (xvii) normal and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions;



          (xviii) leases or subleases granted to others not interfering in any material respect with the
business of the Borrower or any of its Subsidiaries;



          (xix) Liens on the assets of any Subsidiary securing Indebtedness or other obligations owing
to the Borrower;



          (xx) Liens in the nature of any interest or title of a lessor or sublessor under any
lease;



          (xxi) Liens solely on any cash earnest money deposits made by the Borrower or any of its
Subsidiaries in connection with any letter of intent or purchase agreement in connection with
Investments permitted under Section 7.02;



          (xxii) purported Liens evidenced by the filing of precautionary UCC financing statements; and



58









 





          (xxiii) Liens arising in connection with out-bound licenses of patents, copyrights, trademarks
and other IP Rights granted by the Borrower or any of its Subsidiaries in the ordinary course of
business and not interfering in any material respect with the ordinary conduct of the business of
the Borrower and its Subsidiaries.



     7.02. Investments. Make any Investments, if a Default then exists or arises as a result of such
Investment or if after giving effect to such Investment, (a) the Book Value of the assets of the
Borrower would be less than the greater of (i) 50% of the Book Value of the consolidated assets of
the Borrower and its Subsidiaries and (ii) $850,000,000 or (b) the representations and warranties
made by the Borrower in the Loan Documents to which it is a party would not be true and correct in
all material respects with the same force and effect as if made on and as of the date of such
Investment, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they were not true and correct in all material respects as of such
earlier date; provided that, prior to making any Material Investment, the Borrower shall deliver to
the Administrative Agent a Compliance Certificate, demonstrating that the Borrower is in
compliance, on a pro forma basis after giving effect to such Material Investment, as of the last
day of the most-recently ended fiscal quarter of the Borrower for which the Borrower has delivered
financial statements to the Lenders or for which financial statements of the Borrower are publicly
available, with the financial covenants set forth in Section 7.09 and demonstrating the Borrower’s
compliance with the requirements of Section 7.02(a); provided that, notwithstanding the foregoing,
Investments by Subsidiaries (including without limitation, intercompany loans and advances) in the
Borrower may not exceed $5,000,000 in the aggregate on any date of determination. For purposes
hereof, “Material Investment” shall mean any Investment of more than $75,000,000 in cash, cash
equivalents or assets (valued at such assets Book Value at the date of such Investment).



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



     (a) any Subsidiary may merge with the Borrower, provided that the Borrower shall be
the continuing or surviving Person;



     (b) any Subsidiary may merge with any other Subsidiary so long as no Default would exist
immediately after giving effect to such merger, including without limitation a Default resulting
from a breach of any other covenant contained in this Article VII;



     (c) the Borrower or any Subsidiary may Dispose of Subsidiaries and any Subsidiary may Dispose
of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the extent
each such Disposition constitutes a Permitted Disposition or is otherwise permitted by Section
7.04;



     (d) any Subsidiary may merge with another Person (other than the Borrower or another
Subsidiary), so long as no Default then exists or arises as a result of such merger or if after
giving effect to such merger, (i) the Book Value of the assets of the Borrower would not be less
than the greater of (x) 50% of the Book Value of the consolidated assets of the Borrower and its
Subsidiaries and (y) $850,000,000; and (ii) the representations and warranties made by the Borrower
in the Loan Documents to which it is a party are true and correct in all material respects with the
same force and effect as if made on and as of the date of such merger, except to the extent that
such representations and warranties specifically refer to an earlier date, in which case they are
true and correct in all material respects as of such earlier date; provided that if such Subsidiary
is a Material Subsidiary, the Borrower shall deliver to the Administrative Agent a Compliance
Certificate, demonstrating that the Borrower is in compliance, on a pro forma basis after giving
effect to the merger of such Material Subsidiary, as of the last day of the



59









 







most-recently ended fiscal quarter of the Borrower for which the Borrower has delivered
financial statements to the Lenders or for which financial statements of the Borrower are publicly
available, with the financial covenants set forth in Section 7.09, and demonstrating the Borrower’s
compliance with the requirements of Section 7.03(d)(i); and



     (e) the Borrower may merge or consolidate with any other Person, so long as in any merger or
consolidation involving the Borrower, the Borrower shall be the surviving or continuing entity.



     7.04. Dispositions(a) . Other than Permitted Dispositions, make any Disposition or enter into
any agreement to make any Disposition (including, without limitation, the Disposition of a
Subsidiary by the Borrower or a Subsidiary, or the Disposition by a Subsidiary of all or
substantially all of its assets, upon voluntary liquidation or otherwise), if a Default then exists
or arises as a result of such Disposition or if after giving effect to any such Disposition, (a)
the Book Value of the assets of the Borrower would be less than the greater of (i) 50% of the Book
Value of the consolidated assets of the Borrower and its Subsidiaries and (ii) $850,000,000; or (b)
the representations and warranties made by the Borrower in the Loan Documents to which it is a
party would not be true and correct in all material respects with the same force and effect as if
made on and as of the date of such Disposition, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they were not true and correct in
all material respects as of such earlier date; provided that, prior to making any Material
Disposition, the Borrower shall deliver to the Administrative Agent a Compliance Certificate,
demonstrating that the Borrower is in compliance, on a pro forma basis after giving effect to such
Material Disposition, as of the last day of the most-recently ended fiscal quarter of the Borrower
for which the Borrower has delivered financial statements to the Lenders or for which financial
statements of the Borrower are publicly available, with the financial covenants set forth in
Section 7.09 and demonstrating the Borrower’s compliance with the requirements of Section 7.04(a).
For purposes hereof, “Material Disposition” shall mean any Disposition of assets having a Book
Value at the time of such Disposition of more than $50,000,000.



     7.05. Restricted Payments. During the occurrence and continuance of an Event of Default, declare
or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or
otherwise) to do so, except that (a) each Subsidiary may make Restricted Payments to the Borrower
or any other Subsidiary and (b) any Subsidiary that is not a wholly-owned Subsidiary may make
distributions to the holders of its Equity Interests on a pro rata basis to the extent such
Subsidiary is contractually obligated to make such distribution or such Subsidiary has a fiduciary
obligation to make such distribution and such distribution is made in compliance with applicable
law.



     7.06. Change in Nature of Business. Engage in any material line of business substantially
different from those lines of business conducted by the Borrower and its Subsidiaries on the date
hereof or any business substantially related or incidental thereto.



     7.07. Transactions with Affiliates. Other than the transactions contemplated by the Distribution
Agreement and any Ancillary Agreement, enter into any transaction of any kind with any Affiliate of
the Borrower, whether or not in the ordinary course of business, other than on terms substantially
as favorable to the Borrower or such Subsidiary as would be obtainable by the Borrower or such
Subsidiary at the time in a comparable arm’s length transaction with a Person other than an
Affiliate.



     7.08. Use of Proceeds. Use the proceeds of any Credit Extension, whether directly or indirectly,
and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the
meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or
carrying margin stock or to refund indebtedness originally incurred for such purpose, except that
the Borrower may purchase shares of its stock with proceeds of the Loans as contemplated in
Section 5.18.



60









 





     7.09. Financial Covenants.



     (a) Minimum Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed
Charge Coverage Ratio as of the end of any fiscal quarter of the Borrower to be less than 2.5 to
1.0.



     (b) Maximum Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of
the end of any fiscal quarter of the Borrower to be greater than 3.0 to 1.0.



     7.10. Swap Contracts. Enter into any Swap Contract except in the ordinary course of business
pursuant to bona fide hedging transactions and not for speculation.



ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES




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



     (a) Non-Payment. The Borrower fails to pay (i) when and as required to be paid
herein, any amount of principal of any Loan or any L/C Obligation, or (ii) within two Business Days
after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due
hereunder as contemplated by Section 2.03(i), 2.03(j), or 2.09, or (iii) within three Business Days
after notice thereof, any other amount payable hereunder or under any other Loan Document; or



     (b) Specific Covenants. The Borrower fails to perform or observe any term, covenant
or agreement contained in any of Section 6.05, or 6.11 or Article VII; or



     (c) Other Defaults. The Borrower fails to perform or observe (i) any other covenant
or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its
part to be performed or observed and such failure continues for 30 days; or (ii) any term, covenant
or agreement contained in Section 6.01, 6.02, 6.03, or 6.10 and such failure continues for 2
Business Days; or



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



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



61









 







the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so
defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party
(as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than the Threshold Amount; or



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



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



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



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



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



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



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



62









 





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



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



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



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



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



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



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



     Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders
and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer and amounts payable under Article III), ratably among them in proportion to the
respective amounts described in this clause Second payable to them;



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



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



     Fifth, to the Administrative Agent for the account of the L/C Issuer, to Cash
Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters
of Credit; and



63









 





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



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



ARTICLE IX.

ADMINISTRATIVE AGENT




     9.01. Appointment and Authority. Each of the Lenders and the L/C Issuer hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the
other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and
to exercise such powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and
the L/C Issuer, and the Borrower shall not have rights as a third party beneficiary of any of such
provisions.



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



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



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



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



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



64









 





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



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



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



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



     9.06. Resignation of Administrative Agent. The Administrative Agent may at any time give notice of
its resignation to the Lenders, the L/C Issuer and the Borrower. Upon receipt of any such notice
of resignation, the Required Lenders shall have the right, with the consent of the Borrower (not to
be unreasonably withheld or delayed) so long as no Event of Default exists, to appoint a successor,
which shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuer, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the



65









 







Administrative Agent shall notify the Borrower and the Lenders that no qualifying Person has
accepted such appointment, then such resignation shall nonetheless become effective in accordance
with such notice and (1) the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent shall instead be made
by or to each Lender and the L/C Issuer directly, until such time as the Required Lenders appoint a
successor Administrative Agent as provided for above in this Section. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring (or retired)
Administrative Agent, and the retiring Administrative Agent shall be discharged from all of its
duties and obligations hereunder or under the other Loan Documents (if not already discharged
therefrom as provided above in this Section). The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Administrative Agent’s resignation
hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while the retiring Administrative Agent was acting as Administrative Agent.



     Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also
constitute its resignation as L/C Issuer and Swing Line Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swing Line Lender, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all
of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.



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



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



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




66












 





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



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


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such
payments to the Administrative Agent and, in the event that the Administrative Agent shall consent
to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.09 and 10.04.




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



ARTICLE X.

MISCELLANEOUS




     10.01. Amendments, Etc. No amendment or waiver of any provision of this Agreement or any other
Loan Document, and no consent to any departure by the Borrower therefrom, shall be effective unless
in writing signed by the Required Lenders and the Borrower and acknowledged by the Administrative
Agent (which the Administrative Agent agrees to do once such writing is signed by the Required
Lenders; provided, however, that such acknowledgment shall not negate the
Administrative Agent’s right to consent or
withhold its consent to any amendment, waiver, or consent affecting the rights or duties of the
Administrative Agent under the Loan Documents as provided below), and each such waiver or consent
shall be effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:



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



     (b) without limiting the generality of clause (a) above, waive any condition set forth in
Section 4.02 as to any Credit Extension under the Revolving Credit Facility without the written
consent of the Required Revolving Lenders;



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



     (d) postpone any date fixed by this Agreement or any other Loan Document for any payment or
mandatory prepayment of principal, interest, fees or other amounts due to the Lenders (or any of
them)



67









 







hereunder or under any other Loan Document without the written consent of each Lender
entitled to such payment;



     (e) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C
Borrowing, or (subject to clause (iv) of the proviso following clause (g) below) any fees or other
amounts payable hereunder or under any other Loan Document without the written consent of each
Lender entitled to such amount; provided, however, that only the consent of the
Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any
obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;



     (f) change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of
payments required thereby without the written consent of each Lender; or



     (g) change any provision of this Section or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder
without the written consent of each Lender


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




     10.02. Notices; Effectiveness; Electronic Communication.



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




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




     (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire (which information the
Administrative Agent will provide to the Borrower upon its request).


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to


68









 






have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).




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



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



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



     (d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, the L/C
Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for



69









 







such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States Federal and state
securities Laws, to make reference to Borrower Materials that are not made available through the
“Public Side Information” portion of the Platform and that may contain material non-public
information with respect to the Borrower or its securities for purposes of United States Federal or
state securities laws.



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



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



     10.04. Expenses; Indemnity; Damage Waiver.



     (a) Costs and Expenses. The Borrower shall pay (i) all reasonable out-of-pocket
expenses actually incurred by the Administrative Agent and its Affiliates (including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the Facilities, the preparation, negotiation, execution, delivery and administration
of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall
be consummated), (ii) all reasonable out-of-pocket expenses actually incurred by the L/C Issuer in
connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand
for payment thereunder and (iii) all reasonable out-of-pocket expenses actually incurred by the
Administrative Agent, any Lender or the L/C Issuer (including the fees, charges and disbursements
of any counsel for the Administrative Agent, any Lender or the L/C Issuer), in connection with the
enforcement or protection of its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses actually incurred
during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.



     (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), the Syndication Agent, each Lender and the L/C Issuer, and each
Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”)
against,



70









 







and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities
and related expenses (including the fees, charges and disbursements of any counsel for any
Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges
and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee
or asserted against any Indemnitee by any third party or by the Borrower arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder, the consummation of the
transactions contemplated hereby or thereby, or, in the case of the Administrative Agent (and any
sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other
Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment under a Letter of
Credit if the documents presented in connection with such demand do not strictly comply with the
terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or
any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or
(iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory, whether brought by a third
party or by the Borrower and regardless of whether any Indemnitee is a party thereto, IN ALL CASES,
WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR
SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related
expenses (x) are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the bad faith, gross negligence or willful misconduct of such
Indemnitee, (y) result from a claim brought by the Borrower against an Indemnitee for breach of
such Indemnitee’s obligations hereunder or under any other Loan Document, if the Borrower has
obtained a final and nonappealable judgment in its favor on such claim as determined by a court of
competent jurisdiction, or (z) arising out of, or in connection with, any proceeding that does not
involve an act or omission by the Borrower or any Affiliate of the Borrower and that is brought by
an Indemnitee against any other Indemnitee.



     (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it
to the Administrative Agent (or any sub-agent thereof), the L/C Issuer or any Related Party of any
of the foregoing, each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent (or any such sub-agent) or the L/C Issuer in its capacity as such,
or against any Related Party of any of the foregoing acting for the Administrative Agent (or any
such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders
under this subsection (c) are subject to the provisions of Section 2.12(d).



     (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof.
No Indemnitee referred to in subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications,



71









 







electronic or other information
transmission systems in connection with this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby other than for direct or actual damages resulting from
the gross negligence or willful misconduct of such Indemnitee as determined by a final and
nonappealable judgment of a court of competent jurisdiction.



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



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



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



     10.06. Successors and Assigns.



     (a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this
Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this
Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions
of subsection (f) of this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section
and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative
Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



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



72









 






     (i) Minimum Amounts.




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




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $10,000,000, in the case of any assignment in respect of the Revolving Credit
Facility, or $5,000,000, in the case of any assignment in respect of the Term Loan
Facility unless each of the Administrative Agent and, so long as no Event of Default
has occurred and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.




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




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




     (A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at the time of such assignment or (2) such assignment is to a Lender, an
Affiliate of a Lender or an Approved Fund;




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




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



73









 






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




     (iv) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount of $3,500; provided, however,
that the Administrative Agent may, in its sole discretion, elect to waive such processing
and recordation fee in the case of any assignment. The assignee, if it is not a Lender,
shall deliver to the Administrative Agent an Administrative Questionnaire.




     (v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.




     (vi) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.


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




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



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



74









 





     Any agreement or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described in the first proviso to
Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01, 3.04 and
3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant
to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.13 as though it were a Lender.



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



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



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



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



75









 







with all of the rights, powers, privileges and duties of the retiring
L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of
such succession or make other arrangements satisfactory to Bank of America to effectively assume
the obligations of Bank of America with respect to such Letters of Credit.



     10.07. Treatment of Certain Information; Confidentiality. Each of the Administrative Agent, the
Lenders and the L/C Issuer (each a “Lender Party”) agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to its Affiliates and
to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors
and representatives (collectively, “Representatives”) (it being understood that (i) Representatives
will be informed of the confidential nature of such Information and instructed to keep such
Information confidential and (ii) a party making such Information available to its Representatives
agrees to be responsible for any breach of this paragraph that results from the actions or
omissions of its Representatives), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, provided each Lender Party aggress that it
will notify the Borrower as soon as practical in the event of any such disclosure by such Lender
Party (other than at the request of a regulatory authority), unless such notification shall be
prohibited by applicable law or legal process, (d) to any other party hereto, (e) in connection
with the exercise of any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document or the enforcement of rights
hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same
as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of
or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee
invited to be a Lender pursuant to Section 2.14(c) or 2.15(c) or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and
its obligations, (g) with the consent of the Borrower or (h) to the extent such Information
(x) becomes publicly available other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective
Affiliates on a nonconfidential basis from a source other than the Borrower.



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



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



     10.08. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender,
the L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by applicable law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final, in whatever currency) at any
time held and other



76









 







obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and
all of the obligations of the Borrower now or hereafter existing under this Agreement or any other
Loan Document to such Lender or the L/C Issuer, irrespective of whether or not such Lender or the
L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although
such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office
of such Lender or the L/C Issuer different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender, the L/C Issuer and their respective
Affiliates under this Section are in addition to other rights and remedies (including other rights
of setoff) that such Lender, the L/C Issuer or their respective Affiliates may have. Each Lender
and the L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application.



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



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



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



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



77









 







illegal, invalid or unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.



     10.13. Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 3.01, or any Lender gives a notice under Section 3.02
or if any Lender is a Defaulting Lender, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 10.06), all of its interests, rights and obligations under this
Agreement and the related Loan Documents to an assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment), provided that:



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



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



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



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



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



     10.14. Governing Law; Jurisdiction; Etc.



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



     (b) SUBMISSION TO JURISDICTION. THE BORROWER IRREVOCABLY AND UNCONDITIONALLY SUBMITS,
FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK SITTING IN THE BOROUGH OF MANHATTAN COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE
SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY



78









 







LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT ANY PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY OTHER PARTY OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.



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



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



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



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



79









 







permitted by law,
the Borrower hereby waives and releases any claims that it may have against the Administrative
Agent and the Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.



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



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



80









 





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



	 	 	 	 	 
	 	 	TOTAL SYSTEM SERVICES, INC.
	 
	 	 	 	 
	 

	 	By:
	 	James B. Lipham
	 

	 	 	 	 
	 

	 	Name:
	 	James B. Lipham
	 

	 	Title:
	 	Senior Executive Vice President &
	 

	 	 	 	Chief Financial Officer






Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Administrative Agent
	 
	 	 	 	 
	 

	 	By:
	 	Anthea Del Bianco
	 

	 	 	 	 
	 

	 	Name:
	 	Anthea Del Bianco
	 

	 	Title:
	 	Vice President






Signature Page to Credit Agreement




 









 





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

 and
Swing Line Lender
	 
	 	 	 	 
	 

	 	By:
	 	Mary Pat Riggins
	 

	 	 	 	 
	 

	 	Name:
	 	Mary Pat Riggins
	 

	 	Title:
	 	Senior Vice President






Signature Page to Credit Agreement




 









 





	 	 	 	 	 
	 	 	THE ROYAL BANK OF SCOTLAND PLC, as 

Syndication Agent
and a Lender
	 
	 	 	 	 
	 

	 	By:
	 	L. Peter Yetman
	 

	 	 	 	 
	 

	 	Name:
	 	L. Peter Yetman
	 

	 	Title:
	 	Senior Vice President





Signature Page to Credit Agreement


 









 






[OTHER LENDERS]




Signature Page to Credit Agreement