exv10w1



 





EXECUTION COPY




 





$225,000,000




AMENDED AND RESTATED CREDIT AGREEMENT




among




NEWPARK RESOURCES, INC.,

as Borrower,




THE LENDERS FROM TIME TO TIME PARTIES HERETO,




JPMORGAN CHASE BANK, N.A.,

as Administrative Agent




CALYON NEW YORK BRANCH,

as Syndication Agent,




and




BANK OF AMERICA, N.A.,

as Documentation Agent,




Dated as of December 21, 2007





 

J.P. MORGAN SECURITIES INC., as Lead Arranger and Bookrunner













 



 


TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1. DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 
	1.1
	 	Defined Terms	 	 	1	 
	1.2
	 	Other Definitional Provisions	 	 	19	 
	 
	 	 	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF COMMITMENTS	 	 	20	 
	 
	 	 	 	 	 	 
	2.1
	 	Term Commitments	 	 	20	 
	2.2
	 	Procedure for Term Loan Borrowing	 	 	20	 
	2.3
	 	Repayment of Term Loans	 	 	20	 
	2.4
	 	Revolving Commitments	 	 	21	 
	2.5
	 	Procedure for Revolving Loan Borrowing	 	 	22	 
	2.6
	 	Commitment Fees, etc.	 	 	22	 
	2.7
	 	Termination or Reduction of Revolving Commitments	 	 	23	 
	2.8
	 	Optional Prepayments	 	 	23	 
	2.9
	 	Mandatory Prepayments	 	 	23	 
	2.10
	 	Conversion and Continuation Options	 	 	24	 
	2.11
	 	Limitations on Eurodollar Tranches	 	 	24	 
	2.12
	 	Interest Rates and Payment Dates	 	 	24	 
	2.13
	 	Computation of Interest and Fees	 	 	25	 
	2.14
	 	Inability to Determine Interest Rate	 	 	25	 
	2.15
	 	Pro Rata Treatment and Payments	 	 	25	 
	2.16
	 	Requirements of Law	 	 	27	 
	2.17
	 	Taxes	 	 	28	 
	2.18
	 	Indemnity	 	 	29	 
	2.19
	 	Change of Lending Office	 	 	30	 
	2.20
	 	Replacement of Lenders	 	 	30	 
	2.21
	 	General	 	 	30	 
	 
	 	 	 	 	 	 
	SECTION 3. LETTERS OF CREDIT	 	 	31	 
	 
	 	 	 	 	 	 
	3.1
	 	L/C Commitment	 	 	31	 
	3.2
	 	Procedure for Issuance of Letter of Credit	 	 	31	 
	3.3
	 	Fees and Other Charges	 	 	31	 
	3.4
	 	L/C Participations	 	 	32	 
	3.5
	 	Reimbursement Obligation of the Borrower	 	 	32	 
	3.6
	 	Obligations Absolute	 	 	33	 
	3.7
	 	Letter of Credit Payments	 	 	33	 
	3.8
	 	Applications	 	 	33	 
	 
	 	 	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES	 	 	33	 
	 
	 	 	 	 	 	 
	4.1
	 	Financial Condition	 	 	33	 
	4.2
	 	No Change	 	 	34	 
	4.3
	 	Existence; Compliance with Law	 	 	34	 
	4.4
	 	Power; Authorization; Enforceable Obligations	 	 	34	 
	4.5
	 	No Legal Bar	 	 	35	 












 



 


	 	 	 	 	 	 	 
	 	 	 	 	Page
	4.6
	 	Litigation	 	 	35	 
	4.7
	 	No Default	 	 	35	 
	4.8
	 	Ownership of Property; Liens	 	 	35	 
	4.9
	 	Intellectual Property	 	 	35	 
	4.10
	 	Taxes	 	 	35	 
	4.11
	 	Federal Regulations	 	 	35	 
	4.12
	 	Labor Matters	 	 	36	 
	4.13
	 	ERISA	 	 	36	 
	4.14
	 	Investment Company Act; Other Regulations	 	 	36	 
	4.15
	 	Subsidiaries	 	 	36	 
	4.16
	 	Use of Proceeds	 	 	37	 
	4.17
	 	Environmental Matters	 	 	37	 
	4.18
	 	Accuracy of Information, etc	 	 	38	 
	4.19
	 	Security Documents	 	 	38	 
	 
	 	 	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT	 	 	38	 
	 
	 	 	 	 	 	 
	5.1
	 	Conditions to Closing Date	 	 	38	 
	5.2
	 	Conditions to Each Extension of Credit	 	 	41	 
	 
	 	 	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS	 	 	41	 
	 
	 	 	 	 	 	 
	6.1
	 	Financial Statements	 	 	41	 
	6.2
	 	Certificates; Other Information	 	 	42	 
	6.3
	 	Payment of Obligations	 	 	42	 
	6.4
	 	Maintenance of Existence; Compliance	 	 	42	 
	6.5
	 	Maintenance of Property; Insurance	 	 	42	 
	6.6
	 	Inspection of Property; Books and Records; Discussions	 	 	43	 
	6.7
	 	Notices	 	 	43	 
	6.8
	 	Environmental Laws	 	 	43	 
	6.9
	 	Additional Collateral, etc	 	 	43	 
	 
	 	 	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS	 	 	45	 
	 
	 	 	 	 	 	 
	7.1
	 	Financial Condition Covenants	 	 	45	 
	7.2
	 	Indebtedness	 	 	46	 
	7.3
	 	Liens	 	 	46	 
	7.4
	 	Fundamental Changes	 	 	47	 
	7.5
	 	Disposition of Property	 	 	48	 
	7.6
	 	Restricted Payments	 	 	48	 
	7.7
	 	Investments	 	 	48	 
	7.8
	 	Transactions with Affiliates	 	 	49	 
	7.9
	 	Sales and Leasebacks	 	 	49	 
	7.10
	 	Swap Agreements	 	 	49	 
	7.11
	 	Changes in Fiscal Periods	 	 	50	 
	7.12
	 	Negative Pledge Clauses	 	 	50	 
	7.13
	 	Clauses Restricting Subsidiary Distributions	 	 	50	 
	7.14
	 	Lines of Business	 	 	50	 
	 
	 	 	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT	 	 	50	 












 



 


	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 9. THE AGENTS	 	 	53	 
	 
	 	 	 	 	 	 
	9.1
	 	Appointment	 	 	53	 
	9.2
	 	Delegation of Duties	 	 	53	 
	9.3
	 	Exculpatory Provisions	 	 	53	 
	9.4
	 	Reliance by Administrative Agent	 	 	53	 
	9.5
	 	Notice of Default	 	 	54	 
	9.6
	 	Non-Reliance on Agents and Other Lenders	 	 	54	 
	9.7
	 	Indemnification	 	 	54	 
	9.8
	 	Agent in Its Individual Capacity	 	 	55	 
	9.9
	 	Successor Administrative Agent	 	 	55	 
	9.10
	 	Documentation Agent and Syndication Agent	 	 	55	 
	 
	 	 	 	 	 	 
	SECTION 10. MISCELLANEOUS	 	 	55	 
	 
	 	 	 	 	 	 
	10.1
	 	Amendments and Waivers	 	 	55	 
	10.2
	 	Notices	 	 	56	 
	10.3
	 	No Waiver; Cumulative Remedies	 	 	57	 
	10.4
	 	Survival of Representations and Warranties	 	 	57	 
	10.5
	 	Payment of Expenses and Taxes	 	 	57	 
	10.6
	 	Successors and Assigns; Participations and Assignments	 	 	58	 
	10.7
	 	Adjustments; Set-off	 	 	61	 
	10.8
	 	Counterparts	 	 	61	 
	10.9
	 	Severability	 	 	61	 
	10.10
	 	Integration	 	 	62	 
	10.11
	 	GOVERNING LAW	 	 	62	 
	10.12
	 	Submission To Jurisdiction; Waivers	 	 	62	 
	10.13
	 	Acknowledgements	 	 	62	 
	10.14
	 	Releases of Guarantees and Liens	 	 	63	 
	10.15
	 	Confidentiality	 	 	63	 
	10.16
	 	WAIVERS OF JURY TRIAL	 	 	64	 
	10.17
	 	PATRIOT Act	 	 	64	 













 



 




	 	 	 
	SCHEDULES:	 	 
	 
	1.1A

	 	Commitments
	1.1B

	 	Mortgaged Property
	1.1C

	 	Existing Letters of Credit
	4.4

	 	Consents, Authorizations, Filings and Notices
	4.15

	 	Subsidiaries
	4.19(a)

	 	UCC Filing Jurisdictions
	4.19(b)

	 	Mortgage Amendments Filing Jurisdictions
	6.9(e)

	 	Dissolution of Subsidiaries
	7.2(d)

	 	Existing Indebtedness
	7.3(f)

	 	Existing Liens






	 	 	 
	EXHIBITS:	 	 
	 
	A

	 	Form of Amended and Restated Guarantee and Collateral Agreement
	B

	 	Form of Compliance Certificate
	C

	 	Form of Closing Certificate
	D

	 	Form of Mortgage
	E

	 	Form of Assignment and Assumption
	F-1

	 	Form of Legal Opinion of Andrews Kurth LLP
	F-2

	 	Form of Legal Opinion of the Borrower’s General Counsel
	F-3

	 	Form of Legal Opinions of King, LeBlanc & Bland, P.L.L.C.
	G

	 	Form of Exemption Certificate
	H

	 	Form of Revolving Commitment Increase Supplement
	I

	 	Form of Augmenting Lender Supplement















 



 




          AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of December 21,
2007, among Newpark Resources, Inc., a Delaware corporation (the “Borrower”), the several
banks and other financial institutions or entities from time to time parties to this Agreement (the
“Lenders”), JPMorgan Chase Bank, N.A., as the administrative agent (in such capacity, the
“Administrative Agent”), Calyon New York Branch, as syndication agent (in such capacity,
the “Syndication Agent”) and Bank of America, N.A., as documentation agent (in such
capacity, the “Documentation Agent”).




RECITALS




          WHEREAS, the Borrower and certain subsidiaries of the Borrower entered into the Term Credit
Agreement, dated as of August 18, 2006 (the “Existing Term Credit Agreement”), with the
lenders from time to time parties thereto, JPMorgan Chase Bank, N.A., as administrative agent, and
Wilmington Trust Company, as collateral agent;




          WHEREAS, the Borrower desires to refinance (the “Refinancing”) all Indebtedness
outstanding under (a) the Existing Term Credit Agreement and (b) a certain Amended and Restated
Credit Agreement, dated as of December 29, 2006 (the “Existing ABL Credit Agreement”),
among the Borrower, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative
agent, and to pay related fees and expenses;




          WHEREAS, in connection with the Refinancing, the financing amendments under or pursuant to the
Existing ABL Credit Agreement will be terminated;




          WHEREAS, in connection with the Refinancing, the parties hereto have agreed to amend and
restate the Existing Term Credit Agreement as provided in this Agreement, which Agreement shall
become effective upon the satisfaction of certain conditions precedent set forth in Section 5.1
hereof;




          WHEREAS, it is the intent of the parties hereto that this Agreement amend and restate in its
entirety the Existing Term Credit Agreement and re-evidence the obligations of the Borrower
outstanding thereunder;




          NOW, THEREFORE, in consideration of these premises and the terms and conditions set forth in
this Agreement, and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:




SECTION 1. DEFINITIONS




          1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall
have the respective meanings set forth in this Section 1.1.




          “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the ABR due to a change in the
Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.




          “ABR Loans”: Loans the rate of interest applicable to which is based upon the ABR.




          “Acquisition”: any transaction, or any series of related transactions, consummated on
or after the Closing Date, by which any Loan Party (a) acquires any going business or all or
substantially all









 



2


of the assets of any Person, whether through purchase of assets, merger or otherwise or (b)
directly or indirectly acquires (in one transaction or as the most recent transaction in a series
of transactions) at least a majority (in number of votes) of the Capital Stock of a Person which
has ordinary voting power for the election of directors or other similar management personnel of a
Person (other than Capital Stock having such power only by reason of the happening of a
contingency) or a majority of the outstanding Capital Stock of a Person.




          “Adjustment Date”: as defined in the Applicable Pricing Grid.




          “Administrative Agent”: JPMorgan Chase Bank, N.A., together with its affiliates, as
the arranger of the Commitments and as the administrative agent for the Lenders under this
Agreement and the other Loan Documents, together with any of its successors.




          “Affiliate”: as to any Person, any other Person that, directly or indirectly, is in
control of, is controlled by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly, either to (a) vote 10%
or more of the securities having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the direction of the management
and policies of such Person, whether by contract or otherwise.




          “Agents”: the collective reference to the Syndication Agent, the Documentation Agent
and the Administrative Agent.




          “Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a)
until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b)
thereafter, the sum of (i) the aggregate then unpaid principal amount of such Lender’s Term Loans
and (ii) the amount of such Lender’s Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender’s Revolving Extensions of Credit then
outstanding.




          “Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio
(expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate
Exposure of all Lenders at such time.




          “Agreement”: as defined in the preamble hereto.




          “Amended Mortgages”: the Existing Mortgages, as amended by the Mortgage Amendments.




          “Amended and Restated Guarantee and Collateral Agreement”: the Amended and Restated
Guarantee and Collateral Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit A.




          “Applicable Margin”: for each Type of Loan, the rate per annum determined pursuant to
the Applicable Pricing Grid; provided that from the Closing Date until the first Adjustment
Date occurring after the completion of two full fiscal quarters of the Borrower after the Closing
Date, the Applicable Margin shall in no event be lower than 0.25% for ABR Loans and 1.75% for
Eurodollar Loans.




          “Applicable Pricing Grid”: the table set forth below:










 



3




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Applicable Margin	 	 	 	 
	 	 	for Eurodollar	 	Applicable Margin	 	Commitment Fee
	Consolidated Leverage Ratio	 	Loans	 	for ABR Loans	 	Rate
	Greater than or equal to 2.50 to 1.00
	 	 	2.50	%	 	 	1.00	%	 	 	0.45	%
	Greater than or equal to 2.00 to
1.00 but less than 2.50 to 1.00
	 	 	2.25	%	 	 	0.75	%	 	 	0.40	%
	Greater than or equal to 1.50 to
1.00 but less than 2.00 to 1.00
	 	 	2.00	%	 	 	0.50	%	 	 	0.375	%
	Greater than
or equal to 1.00 to 1.00 but less than 1.50 to 1.00
	 	 	1.75	%	 	 	0.25	%	 	 	0.375	%
	Less than 1.00 to 1.00
	 	 	1.50	%	 	 	0.00	%	 	 	0.35	%






For the purposes of the Applicable Pricing Grid, changes in the Applicable Margin resulting from
changes in the Consolidated Leverage Ratio shall become effective on the date (the “Adjustment
Date”) that is three Business Days after the date on which financial statements are delivered
to the Lenders pursuant to Section 6.1 and shall remain in effect until the next change to be
effected pursuant to this paragraph. If any financial statements referred to above are not
delivered within the time periods specified in Section 6.1, then, until the date that is three
Business Days after the date on which such financial statements are delivered, the highest rate set
forth in each column of the Applicable Pricing Grid shall apply. In addition, at all times while
an Event of Default shall have occurred and be continuing, the highest rate set forth in each
column of the Applicable Pricing Grid shall apply. Each determination of the Consolidated Leverage
Ratio pursuant to the Applicable Pricing Grid shall be made in a manner consistent with the
determination thereof pursuant to Section 7.1.




          “Application”: an application, in such form as the Issuing Lender may specify from
time to time, requesting the Issuing Lender to open a Letter of Credit.




          “Approved Fund”: as defined in Section 10.6(b).




          “Asset Sale”: any Disposition of property or series of related Dispositions of
property (excluding any such Disposition permitted by Section 7.5) that yields gross proceeds to
any Group Member (valued at the initial principal amount thereof in the case of non-cash proceeds
consisting of notes or other debt securities and valued at fair market value in the case of other
non-cash proceeds) in excess of $1,000,000.




          “Assignee”: as defined in Section 10.6(b).




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




          “Augmenting Lender”: as defined in Section 2.4(c).




          “Available Revolving Commitment”: as to any Revolving Lender at any time, an amount
equal to the excess, if any, of (a) such Lender’s Revolving Commitment then in effect over
(b) such Lender’s Revolving Extensions of Credit then outstanding.




          “Bear Sterns Warrant”: a warrant held by Bear Stearns or its affiliate that provides
for the right to purchase up to 1,928,972 shares of the Borrower.




          “Benefitted Lender”: as defined in Section 10.7(a).










 



4




          “Board”: the Board of Governors of the Federal Reserve System of the United States
(or any successor).




          “Borrower”: as defined in the preamble hereto.




          “Borrowing Date”: any Business Day specified by the Borrower as a date on which the
Borrower requests the relevant Lenders to make Loans hereunder.




          “Business”: as defined in Section 4.17(b).




          “Business Day”: a day other than a Saturday, Sunday or other day on which commercial
banks in New York City are authorized or required by law to close, provided, that with
respect to notices and determinations in connection with, and payments of principal and interest
on, Eurodollar Loans, such day is also a day for trading by and between banks in Dollar deposits in
the interbank eurodollar market.




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




          “Capital Lease Obligations”: as to any Person, the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.




          “Capital Stock”: any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation) and any and all warrants, rights or options to purchase any
of the foregoing.




          “Cash Equivalents”: (a) marketable direct obligations issued by, or unconditionally
guaranteed by, the United States Government or issued by any agency thereof and backed by the full
faith and credit of the United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, eurodollar time deposits or overnight bank
deposits having maturities of six months or less from the date of acquisition issued by any Lender
or by any commercial bank organized under the laws of the United States or any state thereof having
combined capital and surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at least A-1 by Standard & Poor’s Ratings Services (“S&P”) or P-1 by Moody’s Investors
Service, Inc. (“Moody’s”), or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease publishing ratings of commercial
paper issuers generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the requirements of
clause (b) of this definition, having a term of not more than 30 days, with respect to securities
issued or fully guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign government, the securities
of which state, commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by Moody’s; (f) securities with
maturities of six months or less from









 



5


the date of acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (b) of this definition; (g) money market
mutual or similar funds that invest exclusively in assets satisfying the requirements of clauses
(a) through (f) of this definition; or (h) money market funds that (i) comply with the criteria set
forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended, (ii) are rated AAA by
S&P and Aaa by Moody’s and (iii) have portfolio assets of at least $5,000,000,000.




          “Closing Date”: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied, which date is December 21, 2007.




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




          “Collateral”: all property of the Loan Parties, now owned or hereafter acquired, upon
which a Lien is purported to be created by any Security Document.




          “Commitment”: as to any Lender, the sum of the Term Commitment and the Revolving
Commitment of such Lender.




          “Commitment Fee Rate”: the rate per annum determined pursuant to the Applicable
Pricing Grid; provided that from the Closing Date until the first Adjustment Date occurring
after the completion of two full fiscal quarters of the Borrower after the Closing Date, the
Commitment Fee Rate shall in no event be lower than 0.375%.




          “Commonly Controlled Entity”: an entity, whether or not incorporated, that is under
common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group
that includes the Borrower and that is treated as a single employer under Section 414 of the Code.




          “Compliance Certificate”: a certificate duly executed by a Responsible Officer
substantially in the form of Exhibit B.




          “Conduit Lender”: any special purpose corporation organized and administered by any
Lender for the purpose of making Loans otherwise required to be made by such Lender and designated
by such Lender in a written instrument; provided, that the designation by any Lender of a
Conduit Lender shall not relieve the designating Lender of any of its obligations to fund a Loan
under this Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and responsibility to
deliver all consents and waivers required or requested under this Agreement with respect to its
Conduit Lender, and provided, further, that no Conduit Lender shall (a) be entitled
to receive any greater amount pursuant to Section 2.16, 2.17, 2.18 or 10.5 than the designating
Lender would have been entitled to receive in respect of the extensions of credit made by such
Conduit Lender or (b) be deemed to have any Commitment.




          “Confidential Information Memorandum”: the Confidential Information Memorandum dated
November 2007 and furnished to certain Lenders.




          “Consolidated EBITDA”: for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) income tax expense, (b) interest expense,
amortization or writeoff of debt discount and debt issuance costs and commissions, discounts and
other fees and charges associated with Indebtedness (including the Loans), (c) depreciation and
amortization expense, (d) amortization of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary or non-recurring non-cash expenses or losses (including,
whether or not otherwise









 



6


includable as a separate item in the statement of such Consolidated Net Income for such
period, non-cash losses on sales of assets outside of the ordinary course of business) and (f) any
non-cash Capital Stock based compensation expenses, and minus, (a) to the extent included
in the statement of such Consolidated Net Income for such period, the sum of (i) interest income,
(ii) any extraordinary, unusual or non-recurring income or gains (including, whether or not
otherwise includable as a separate item in the statement of such Consolidated Net Income for such
period, gains on the sales of assets outside of the ordinary course of business), (iii) income tax
credits (to the extent not netted from income tax expense) and (iv) any other non-cash income and
(b) any cash payments made during such period in respect of items described in clause (e) above
subsequent to the fiscal quarter in which the relevant non-cash expenses or losses were reflected
as a charge in the statement of Consolidated Net Income, all as determined on a consolidated basis.
For the purposes of calculating Consolidated EBITDA for any period of four consecutive fiscal
quarters (each, a “Reference Period”) pursuant to any determination of the Consolidated
Leverage Ratio, (i) if at any time during such Reference Period the Borrower or any Subsidiary
shall have made any Material Disposition, the Consolidated EBITDA for such Reference Period shall
be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the property
that is the subject of such Material Disposition for such Reference Period or increased by an
amount equal to the Consolidated EBITDA (if negative) attributable thereto for such Reference
Period and (ii) if during such Reference Period the Borrower or any Subsidiary shall have made a
Material Acquisition, Consolidated EBITDA for such Reference Period shall be calculated after
giving pro forma effect thereto as if such Material Acquisition occurred on the
first day of such Reference Period. As used in this definition, “Material Acquisition”
means any acquisition of property or series of related acquisitions of property that (a)
constitutes assets comprising all or substantially all of an operating unit of a business or
constitutes all or substantially all of the common stock of a Person and (b) involves the payment
of consideration by the Borrower and its Subsidiaries in excess of $5,000,000; and “Material
Disposition” means any Disposition of property or series of related Dispositions of property that
yields gross proceeds to the Borrower or any of its Subsidiaries in excess of $5,000,000.




          “Consolidated Fixed Charge Coverage Ratio”: for any period, the ratio of (a)
Consolidated EBITDA for such period less the aggregate amount actually paid by the Borrower and its
Subsidiaries during such period on account of Capital Expenditures (excluding the principal amount
of Indebtedness incurred in connection with such expenditures) to (b) Consolidated Fixed Charges
for such period.




          “Consolidated Fixed Charges”: for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period, (b) Consolidated Lease Expense for such period, (c)
scheduled payments made during such period on account of principal of Indebtedness of the Borrower
or any of its Subsidiaries (including scheduled principal payments in respect of the Term Loans)
and (d) expense for taxes paid in cash during such period.




          “Consolidated Interest Expense”: for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Borrower and its Subsidiaries for
such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries
(including all commissions, discounts and other fees and charges owed with respect to letters of
credit and bankers’ acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance with GAAP).




          “Consolidated Lease Expense”: for any period, the aggregate amount of Capital Lease
Obligations payable by the Borrower and its Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.










 



7




          “Consolidated Leverage Ratio”: as at the last day of any period, the ratio of (a)
Consolidated Total Debt on such day to (b) Consolidated EBITDA for such period.




          “Consolidated Net Income”: for any period, the consolidated net income (or loss) of
the Borrower and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded (a) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary of the Borrower or is merged into or consolidated with
the Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person (other than a
Subsidiary of the Borrower) in which the Borrower or any of its Subsidiaries has an ownership
interest, except to the extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the undistributed earnings of
any Subsidiary of the Borrower to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to
such Subsidiary.




          “Consolidated Net Worth”: at any date, all amounts that would, in conformity with
GAAP, be included on a consolidated balance sheet of the Borrower and its Subsidiaries under
stockholders’ equity at such date.




          “Consolidated Tangible Assets”: at any date, the total assets of the Borrower and its
Subsidiaries at such date, as determined on a consolidated basis in accordance with GAAP, less
their consolidated Intangible Assets. For purposes of this definition, “Intangible Assets” means
the amount of (i) all write-ups in the book value of any asset owned by the Borrower or a
Subsidiary and (ii) all unamortized debt discount and expense, unamortized deferred charges,
goodwill, patents, trademarks, service marks, trade names, copyrights and other intangible assets,
determined on a consolidated basis in accordance with GAAP.




          “Consolidated Total Debt”: at any date, the aggregate principal amount of all
Indebtedness of the Borrower and its Subsidiaries at such date, determined on a consolidated basis
in accordance with GAAP.




          “Contractual Obligation”: 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.




          “Default”: any of the events specified in Section 8, whether or not any requirement
for the giving of notice, the lapse of time, or both, has been satisfied.




          “Disposition”: with respect to any property, any sale, lease, sale and leaseback,
assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and
“Disposed of” shall have correlative meanings.




          “Documentation Agent”: as defined in the preamble hereto.




          “Dollars” and “$”: dollars in lawful currency of the United States.




          “Domestic Investment”: any Investment in a Domestic Subsidiary or any other Person
organized under the laws of any jurisdiction within the United States.




          “Domestic Permitted Acquisition”: any Permitted Acquisition pursuant to which (a) any
acquired or newly formed Subsidiary is a Domestic Subsidiary or (b) the assets that are the subject
of









 



8


such Permitted Acquisition are acquired by a Domestic Subsidiary and are located in the United
States. If the acquired or newly formed Subsidiaries in a Permitted Acquisition are in part
Domestic Subsidiaries and in part Foreign Subsidiaries or the assets acquired in a Permitted
Acquisition are in part located in the United States and in part outside of the United States, such
Permitted Acquisition shall be treated for all purposes of this Agreement as Domestic Permitted
Acquisition to the extent of the domestic component (as determined by the Borrower in good faith)
and as Foreign Permitted Business Acquisition to the extent of the foreign component (as determined
by the Borrower in good faith).




          “Domestic Subsidiary”: any Subsidiary of the Borrower organized under the laws of any
jurisdiction within the United States.




          “Environmental Laws”: any and all foreign, Federal, state, local or municipal laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or other Requirements of Law (including common law) regulating, relating to or imposing
liability or standards of conduct concerning protection of human health or the environment, as now
or may at any time hereafter be in effect.




          “Environmental Sale”: the sale of the United States environmental services business
of the Borrower and its Subsidiaries as further described in the Form 8-K submitted by the Borrower
to the SEC on October 11, 2007.




          “ERISA”: the Employee Retirement Income Security Act of 1974, as amended from time to
time.




          “ERISA Event”: (a) any Reportable Event; (b) the existence with respect to any Plan
of a Prohibited Transaction; (c) any failure by any Pension Plan to satisfy the minimum funding
standards (within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to
such Pension Plan, including any “accumulated funding deficiency” (as defined in Section 412 of the
Code or Section 302 of ERISA), whether or not waived; (d) the filing pursuant to Section 412 of the
Code or Section 303 of ERISA of an application for a waiver of the minimum funding standard with
respect to any Pension Plan, the failure to make by its due date a required installment under
Section 412(m) of the Code with respect to any Pension Plan or the failure by any Group Member or
any Commonly Controlled Entity to make any required contribution to a Multiemployer Plan; (d) the
incurrence by any Group Member or any Commonly Controlled Entity of any liability under Title IV of
ERISA with respect to the termination of any Pension Plan, including but not limited to the
imposition of any Lien in favor of the PBGC or any Pension Plan; (f) a determination that any
Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Title IV of
ERISA); (g) the receipt by any Group Member or any Commonly Controlled Entity from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Pension Plan or to
appoint a trustee to administer any Pension Plan under Section 4042 of ERISA; (h) the incurrence by
any Group Member or any Commonly Controlled Entity of any liability with respect to the withdrawal
or partial withdrawal from any Pension Plan or Multiemployer Plan; or (i) the receipt by any Group
Member or any Commonly Controlled Entity of any notice, or the receipt by any Multiemployer Plan
from a Group Member of any Commonly Controlled Entity of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be,
insolvent, in reorganization or in endangered or critical status, within the meaning of Section 432
of the Code or Section 305 or Title IV of ERISA.




          “Eurocurrency Reserve Requirements”: for any day as applied to a Eurodollar Loan, the
aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and emergency reserves)
under any regulations of the Board or other Governmental Authority having jurisdiction with respect









 



9


thereto dealing with reserve requirements prescribed for eurocurrency funding (currently
referred to as “Eurocurrency Liabilities” in Regulation D of the Board) maintained by a member bank
of the Federal Reserve System.




          “Eurodollar Base Rate”: with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, the rate per annum determined on the basis of the rate for
deposits in Dollars for a period equal to such Interest Period commencing on the first day of such
Interest Period appearing on the Reuters Screen LIBOR01 Page as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period. In the event that such rate does not
appear on such page (or otherwise on such screen), the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the absence of such
availability, by reference to the rate at which the Administrative Agent is offered Dollar deposits
at or about 11:00 A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of such Interest Period
for the number of days comprised therein.




          “Eurodollar Loans”: Loans the rate of interest applicable to which is based upon the
Eurodollar Rate.




          “Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/100th of 1%):




Eurodollar Base Rate



 



1.00 — Eurocurrency Reserve Requirements




          “Eurodollar Tranche”: the collective reference to Eurodollar Loans under a particular
Facility the then current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally have been made on the same
day).




          “Event of Default”: any of the events specified in Section 8, provided that
any requirement for the giving of notice, the lapse of time, or both, has been satisfied.




          “Excluded Foreign Subsidiary”: any Foreign Subsidiary in respect of which either (a)
the pledge of all of the Capital Stock of such Subsidiary as Collateral or (b) the guaranteeing by
such Subsidiary of the Obligations, would, in the good faith judgment of the Borrower, result in
adverse tax consequences to the Borrower.




          “Existing ABL Credit Agreement”: as defined in the recitals hereto.




          “Existing Letters of Credit”: the letters of credit outstanding as of the Closing
Date which are listed on Schedule 1.1C.




          “Existing Mortgages”: each of the mortgages and deeds of trust made pursuant to the
Existing Term Credit Agreement by any Loan Party in favor of, or for the benefit of, the
Administrative Agent for the benefit of the Lenders.




          “Existing Mortgaged Property”: as defined in Section 5.1(1).




          “Existing Term Credit Agreement”: as defined in the recitals hereto.










 



10




          “Facility”: each of (a) the Term Commitments and the Term Loans made thereunder (the
“Term Facility”) and (b) the Revolving Commitments and the extensions of credit made
thereunder (the “Revolving Facility”).




          “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a Business Day, the average of
the quotations for the day of such transactions received by JPMorgan Chase Bank, N.A. from three
federal funds brokers of recognized standing selected by it.




          “Fee Payment Date”: (a) the third Business Day following the last day of each March,
June, September and December and (b) the last day of the Revolving Commitment Period.




          “Foreign Investment”: any Investment in a Foreign Subsidiary or any other Person
organized under the laws of a jurisdiction other than any jurisdiction within the United States.




          “Foreign Permitted Acquisition”: any Permitted Acquisition that is not a Domestic
Permitted Acquisition. If the acquired or newly formed Subsidiaries in a Permitted Acquisition are
in part Domestic Subsidiaries and in part Foreign Subsidiaries or the assets acquired in a
Permitted Acquisition are in part located in the United States and in part outside of the United
States, such Permitted Acquisition shall be treated for all purposes of this Agreement as Domestic
Permitted Acquisition to the extent of the domestic component (as determined by the Borrower in
good faith) and as Foreign Permitted Acquisition to the extent of the foreign component (as
determined by the Borrower in good faith).




          “Foreign Benefit Arrangement”: any employee benefit arrangement mandated by non-US
law that is maintained or contributed to by any Group Member or any Commonly Controlled Entity.




          “Foreign Plan”: each employee benefit plan (within the meaning of Section 3(3) of
ERISA, whether or not subject to ERISA) that is not subject to US law and is maintained or
contributed to by any Group member or any Commonly Controlled Entity.




          “Foreign Subsidiary”: any Subsidiary of the Borrower that is not a Domestic
Subsidiary.




          “Funded Debt”: as to any Person, all Indebtedness of such Person that matures more
than one year from the date of its creation or matures within one year from such date but is
renewable or extendible, at the option of such Person, to a date more than one year from such date
or arises under a revolving credit or similar agreement that obligates the lender or lenders to
extend credit during a period of more than one year from such date, including all current
maturities and current sinking fund payments in respect of such Indebtedness whether or not
required to be paid within one year from the date of its creation and, in the case of the Borrower,
Indebtedness in respect of the Loans.




          “Funding Office”: the office of the Administrative Agent specified in Section 10.2 or
such other office as may be specified from time to time by the Administrative Agent as its funding
office by written notice to the Borrower and the Lenders.




          “GAAP”: generally accepted accounting principles in the United States as in effect
from time to time, except that for purposes of Section 7.1, GAAP shall be determined on the basis
of such principles in effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements referred to in Section 4.1(b). In the event that
any “Accounting Change” (as defined below) shall occur and such change results in a change in the
method of calculation of financial









 



11


covenants, standards or terms in this Agreement, then the Borrower and the Administrative
Agent agree to enter into negotiations in order to amend such provisions of this Agreement so as to
reflect equitably such Accounting Changes with the desired result that the criteria for evaluating
the Borrower’s financial condition shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agent and the Required Lenders, all
financial covenants, standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. “Accounting Changes” refers to changes
in accounting principles required by the promulgation of any rule, regulation, pronouncement or
opinion by the Financial Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.




          “Governmental Authority”: any nation or government, any state or other political
subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank
or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative
functions of or pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).




          “Group Members”: the collective reference to the Borrower and its Subsidiaries.




          “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
Person that guarantees or in effect guarantees, or which is given to induce the creation of a
separate obligation by another Person (including any bank under any letter of credit) that
guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the
“primary obligations”) of any other third Person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring the owner of any
such primary obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof; provided, however, that the term Guarantee
Obligation shall not include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for
which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability
in respect thereof as determined by the Borrower in good faith.




          “Increasing Lender”: as defined in Section 2.4(c).




          “Indebtedness”: of any Person at any date, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for the deferred purchase
price of property or services (other than current trade payables incurred in the ordinary course of
such Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all indebtedness created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such Person (even though the
rights and remedies of the seller or lender under such agreement in the event of default are
limited to repossession or sale of such









 



12


property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such
Person, contingent or otherwise, as an account party or applicant under or in respect of
acceptances, letters of credit, surety bonds or similar arrangements, (g) the liquidation value of
all mandatorily redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations of
such Person in respect of obligations of the kind referred to in clauses (a) through (g) above, (i)
all obligations of the kind referred to in clauses (a) through (h) above secured by (or for which
the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including accounts and contract rights) owned by such Person, whether or not such
Person has assumed or become liable for the payment of such obligation, and (j) for the purposes of
Section 8(e) only, all obligations of such Person in respect of Swap Agreements. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any partnership in
which such Person is a general partner) to the extent such Person is liable therefor as a result of
such Person’s ownership interest in or other relationship with such entity, except to the extent
the terms of such Indebtedness expressly provide that such Person is not liable therefor.




          “Insolvency”: with respect to any Multiemployer Plan, the condition that such Plan is
insolvent within the meaning of Section 4245 of ERISA.




          “Insolvent”: pertaining to a condition of Insolvency.




          “Intellectual Property”: the collective reference to all rights, priorities and
privileges relating to intellectual property, whether arising under United States, multinational or
foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses,
trademarks, trademark licenses, technology, know-how and processes, and all rights to sue at law or
in equity for any infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.




          “Interest Payment Date”: (a) as to any ABR Loan, the last day of each March, June,
September and December (or, if an Event of Default is in existence, the last day of each calendar
month) to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to
any Eurodollar Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months,
each day that is three months, or a whole multiple thereof, after the first day of such Interest
Period and the last day of such Interest Period, and (d) as to any Loan (other than any Revolving
Loan that is an ABR Loan), the date of any repayment or prepayment made in respect thereof.




          “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six months thereafter, as selected by the Borrower in its notice of
borrowing or notice of conversion, as the case may be, given with respect thereto; and (b)
thereafter, each period commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the
Borrower by irrevocable notice to the Administrative Agent not later than 11:00 A.M., New York City
time, on the date that is three Business Days prior to the last day of the then current Interest
Period with respect thereto; provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:





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









 



13



     (ii) the Borrower may not select an Interest Period under a particular Facility that
would extend beyond the Revolving Termination Date or beyond the date final payment is due
on the Term Loans; and




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



          “Investments”: as defined in Section 7.7.




          “Issuing Lender”: any Lender in its capacity as issuer of any Letter of Credit. In
the event that there is more than one Issuing Lender at any time, references herein and in the
other Loan Documents to the Issuing Lender shall be deemed to refer to the Issuing Lender in
respect of the applicable Letter of Credit or to all Issuing Lenders, as the context requires.




          “L/C Commitment”: $50,000,000.




          “L/C Obligations”: at any time, an amount equal to the sum of (a) the aggregate then
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit that have not then been reimbursed pursuant to Section 3.5.




          “L/C Participants”: the collective reference to all the Revolving Lenders other than
the Issuing Lender.




          “Lenders”: as defined in the preamble hereto; provided, that unless the
context otherwise requires, each reference herein to the Lenders shall be deemed to include any
Conduit Lender.




          “Letters of Credit”: as defined in Section 3.1(a).




          “Lien”: any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge or other security interest or any preference,
priority or other security agreement or preferential arrangement of any kind or nature whatsoever
(including any conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).




          “Loan”: any loan made by any Lender pursuant to this Agreement.




          “Loan Documents”: this Agreement, the Security Documents, the Notes and any
amendment, waiver, supplement or other modification to any of the foregoing.




          “Loan Parties”: each Group Member that is a party to a Loan Document.




          “Majority Facility Lenders”: with respect to any Facility, the holders of more than
50% of the aggregate unpaid principal amount of the Term Loans or the Total Revolving Extensions of
Credit, as the case may be, outstanding under such Facility (or, in the case of the Revolving
Facility, prior to any termination of the Revolving Commitments, the holders of more than 50% of
the Total Revolving Commitments).




          “Material Adverse Effect”: a material adverse effect on (a) the business, property,
operations, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a









 



14


whole or (b) the validity or enforceability of this Agreement or any of the other Loan
Documents or the rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.




          “Materials of Environmental Concern”: any gasoline or petroleum (including crude oil
or any fraction thereof) or petroleum products or any hazardous or toxic substances, materials or
wastes, defined or regulated as such in or under any Environmental Law, including asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.




          “Mortgage Amendments”: as defined in Section 5.1(l).




          “Mortgaged Properties”: the real properties listed on Schedule 1.1B, as to
which the Administrative Agent for the benefit of the Lenders has been granted a Lien pursuant to
the Mortgages, and any other real property with respect to which a mortgage or deed of trust has
been delivered pursuant to Section 6.9(b).




          “Mortgages”: the Existing Mortgages, the Amended Mortgages and any mortgages or deeds
of trust made pursuant to Section 6.9(b).




          “Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.




          “Net Cash Proceeds”: (a) in connection with any Asset Sale or any Recovery Event, the
proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by
way of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise or escrowed amounts, but only, in either case, if, as and when
received), net of reasonable and customary attorneys’ fees, accountants’ fees, investment banking
fees, amounts required to be applied to the repayment of Indebtedness secured by a Lien expressly
permitted hereunder on any asset that is the subject of such Asset Sale or Recovery Event (other
than any Lien pursuant to a Security Document) and other customary fees and expenses actually
incurred in connection therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or deductions and any tax
sharing arrangements) and (b) in connection with any incurrence of Indebtedness, the cash proceeds
received from such issuance or incurrence, net of attorneys’ fees, investment banking fees,
accountants’ fees, underwriting discounts and commissions and other customary fees and expenses
actually incurred in connection therewith.




          “Non-Excluded Taxes”: as defined in Section 2.17(a).




          “Non-U.S. Lender”: as defined in Section 2.17(d).




          “Notes”: the collective reference to any promissory note evidencing Loans.




          “Obligations”: the unpaid principal of and interest on (including interest accruing
after the maturity of the Loans and Reimbursement Obligations and interest accruing after the
filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the
Borrower to the Administrative Agent or to any Lender (or, in the case of Specified Swap
Agreements, any affiliate of any Lender), whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Loan Document, the Letters of Credit, any Specified Swap
Agreement or any other document made, delivered or given in connection herewith or therewith,
whether on account of principal, interest, reimbursement









 



15


obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements
of counsel to the Administrative Agent or to any Lender that are required to be paid by the
Borrower pursuant hereto) or otherwise.




          “Other Taxes”: any and 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 from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.




          “Participant”: as defined in Section 10.6(c).




          “PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of Title IV of ERISA (or any successor).




          “Pension Plan”: any Plan (other than a Multiemployer Plan) subject to the provisions
of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which
any Group Member or any Commonly Controlled Entity is (or, if such Plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in section 3(5) of ERISA.




          “Permitted Acquisitions”: Acquisitions, in each case, to the extent (a) the
cumulative aggregate cash consideration (defined as total net cash to be paid, plus Indebtedness to
be assumed in connection with such Acquisition, plus the Acquisition costs associated with such
Acquisitions), together with the aggregate amount of Investments under Section 7.7(h) (without
duplication) is less than (i) in the case of Domestic Permitted Acquisitions and Domestic
Investments, 20% of the book value of Consolidated Tangible Assets of the Borrower as of the last
day of the immediately preceding fiscal quarter for which financial statements have been delivered
pursuant to Section 6.1 and (ii) in the case of Foreign Permitted Acquisitions and Foreign
Investments, $50,000,000, in each case during the term of this Agreement and (b) (i) the acquired
company or assets are in the same or similar line of business as the Borrower and its Subsidiaries;
(ii) the Borrower or a Subsidiary is the surviving entity holding one hundred percent (100%) of the
Capital Stock in the Acquisition target; (iii) no Event of Default or Default shall exist before or
after such Acquisition; (iv) such Acquisition shall be completed in accordance with applicable
laws; (v) the Administrative Agent shall be provided with reasonably satisfactory opinions with
regard to such Acquisition as it may reasonably request; (vi) the terms of Section 6.9 are
satisfied; (vii) the board of directors or similar governing body of the acquired company approves
the Acquisition; and (viii) after giving effect to the Acquisition, on a pro forma basis, the
Borrower is in compliance with Section 7.1 as of the last day of the immediately preceding fiscal
quarter for which financial statements have been delivered pursuant to Section 6.1.




          “Permitted Capital Stock Repurchase”: as defined in Section 7.6(b).




          “Person”: an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.




          “Plan”: any employee benefit plan as defined in Section 3(3) of ERISA, including any
employee welfare benefit plan (as defined in Section 3(1) of ERISA), any employee pension benefit
plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit
plan and an employee pension benefit plan, and in respect of which any Group Member or any Commonly
Controlled Entity is an “employer” as defined in Section 3(5) of ERISA.










 



16




          “Prime Rate”: the rate of interest per annum publicly announced from time to time by
JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City (the
Prime Rate not being intended to be the lowest rate of interest charged by JPMorgan Chase Bank,
N.A. in connection with extensions of credit to debtors).




          “Pro Forma Balance Sheet”: as defined in Section 4.1(a).




          “Prohibited Transaction”: has the meaning assigned to such term in Section 406 of
ERISA and Section 4975(f)(3) of the Code.




          “Projections”: as defined in Section 6.2(b).




          “Properties”: as defined in Section 4.17(a).




          “Recovery Event”: any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of any Group Member.




          “Refinancing”: as defined in the recitals hereto.




          “Register”: as defined in Section 10.6(b).




          “Regulation U”: Regulation U of the Board as in effect from time to time.




          “Reimbursement Obligation”: the obligation of the Borrower to reimburse the Issuing
Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.




          “Reinvestment Deferred Amount”: with respect to any Reinvestment Event, the aggregate
Net Cash Proceeds received by any Group Member in connection therewith that are not applied to
prepay the Term Loans pursuant to Section 2.9(b) as a result of the delivery of a Reinvestment
Notice.




          “Reinvestment Event”: any Asset Sale or Recovery Event in respect of which the
Borrower has delivered a Reinvestment Notice.




          “Reinvestment Notice”: a written notice executed by a Responsible Officer stating
that no Event of Default has occurred and is continuing and that the Borrower (directly or
indirectly through a Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Sale or Recovery Event to acquire or repair assets useful in its
business.




          “Reinvestment Prepayment Amount”: with respect to any Reinvestment Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire or repair assets useful in the Borrower’s business.




          “Reinvestment Prepayment Date”: with respect to any Reinvestment Event, the earlier
of (a) the date occurring 270 days after such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to, or shall have otherwise ceased to, acquire or repair assets
useful in the Borrower’s business with all or any portion of the relevant Reinvestment Deferred
Amount.




          “Reorganization”: with respect to any Multiemployer Plan, the condition that such
plan is in reorganization within the meaning of Section 4241 of ERISA.










 



17




          “Reportable Event”: any of the events set forth in Section 4043(c) of ERISA, other
than those events as to which the thirty day notice period is waived under subsections .27, .28,
..29, .30, .31, .32, .34 or .35 of PBGC Reg. § 4043.




          “Required Lenders”: at any time, the holders of more than 50% of (a) until the
Closing Date, the Commitments then in effect and (b) thereafter, the sum of (i) the aggregate
unpaid principal amount of the Term Loans then outstanding and (ii) the Total Revolving Commitments
then in effect or, if the Revolving Commitments have been terminated, the Total Revolving
Extensions of Credit then outstanding.




          “Requirement of Law”: as to any Person, the Certificate of Incorporation and By-Laws
or other organizational or governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental Authority, in each
case applicable to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.




          “Responsible Officer”: the chief executive officer, president or chief financial
officer of the Borrower, but in any event, with respect to financial matters, the chief financial
officer, treasurer or controller of the Borrower.




          “Restricted Payments”: as defined in Section 7.6.




          “Revolving Commitment”: as to any Lender, the obligation of such Lender, if any, to
make Revolving Loans and participate in Letters of Credit in an aggregate principal and/or face
amount not to exceed the amount set forth under the heading “Revolving Commitment” opposite such
Lender’s name on Schedule 1.1A or in the Assignment and Assumption pursuant to which such
Lender became a party hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original amount of the Total Revolving Commitments is $175,000,000.




          “Revolving Commitment Period”: the period from and including the Closing Date to the
earlier of (i) the Revolving Termination Date and (ii) the date of termination of the Revolving
Commitments pursuant to the terms hereof.




          “Revolving Extensions of Credit”: as to any Revolving Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Revolving Loans held by such Lender
then outstanding and (b) such Lender’s Revolving Percentage of the L/C Obligations then
outstanding.




          “Revolving Lender”: each Lender that has a Revolving Commitment or that holds
Revolving Loans.




          “Revolving Loans”: as defined in Section 2.4(a).




          “Revolving Percentage”: as to any Revolving Lender at any time, the percentage which
such Lender’s Revolving Commitment then constitutes of the Total Revolving Commitments or, at any
time after the Revolving Commitments shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender’s Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding, provided, that, in the
event that the Revolving Loans are paid in full prior to the reduction to zero of the Total
Revolving Extensions of Credit, the Revolving Percentages shall be determined in a manner designed
to ensure that the other outstanding Revolving Extensions of Credit shall be held by the Revolving
Lenders on a comparable basis.










 



18




          “Revolving Termination Date”: December 21, 2012.




          “SEC”: the Securities and Exchange Commission, any successor thereto and any
analogous Governmental Authority.




          “Security Documents”: the collective reference to the Amended and Restated Guarantee
and Collateral Agreement, the Mortgages and all other security documents hereafter delivered to the
Administrative Agent granting a Lien on any property of any Person to secure the obligations and
liabilities of any Loan Party under any Loan Document.




          “Solvent”: when used with respect to any Person, means that, as of any date of
determination, (a) the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured.




          “Specified Swap Agreement”: any Swap Agreement in respect of interest rates or
currency exchange rates entered into by the Borrower or any Subsidiary Guarantor and any Person
that is a Lender or an affiliate of a Lender at the time such Swap Agreement is entered into.




          “Subsidiary”: as to any Person, a corporation, partnership, limited liability company
or other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.




          “Subsidiary Guarantor”: each Subsidiary of the Borrower other than any Excluded
Foreign Subsidiary.




          “Swap Agreement”: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or any of its Subsidiaries
shall be a “Swap Agreement”.




          “Syndication Agent”: as defined in the preamble hereto.










 



19




          “Term Commitment”: as to any Lender, the obligation of such Lender, if any, to make a
Term Loan to the Borrower in a principal amount not to exceed the amount set forth under the
heading “Term Commitment” opposite such Lender’s name on Schedule 1.1A. The original
aggregate amount of the Term Commitments is $50,000,000.




          “Term Lenders”: each Lender that has a Term Commitment or that holds a Term Loan.




          “Term Loans”: as defined in Section 2.1.




          “Term Percentage”: as to any Term Lender at any time, the percentage which such
Lender’s Term Commitment then constitutes of the aggregate Term Commitments (or, at any time after
the Closing Date, the percentage which the aggregate principal amount of such Lender’s Term Loans
then outstanding constitutes of the aggregate principal amount of the Term Loans then outstanding).




          “Total Revolving Commitments”: at any time, the aggregate amount of the Revolving
Commitments then in effect.




          “Total Revolving Extensions of Credit”: at any time, the aggregate amount of the
Revolving Extensions of Credit of the Revolving Lenders outstanding at such time.




          “Transferee”: any Assignee or Participant.




          “Type”: as to any Loan, its nature as an ABR Loan or a Eurodollar Loan.




          “United States”: the United States of America.




          “Universal Sale”: the sale of certain assets of Newpark Drilling Fluids, LLC
(“DFI”) and Newpark Environmental Water Solutions, LLC (“NEWS”) to Universal
Systems, Inc. or any Affiliate thereof, in accordance with an Asset Purchase Agreement to be
executed among the parties pursuant to which (i) NEWS will sell certain of the assets owned by NEWS
relating to the oilfield water treatment and solid waste composting facilities operated by NEWS
located in Boulder, Wyoming and Riverton, Wyoming and (ii) DFI will sell (A) its rights under
permits held by DFI relating to the operations of NEWS at the Riverton, Wyoming facility, and (B)
the real property located in Boulder, Sublette County, Wyoming, and all buildings, plants, and
other structures and improvements located thereon.




          “Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital
Stock of which (other than directors’ qualifying shares required by law) is owned by such Person
directly and/or through other Wholly Owned Subsidiaries.




          “Wholly Owned Subsidiary Guarantor”: any Subsidiary Guarantor that is a Wholly Owned
Subsidiary of the Borrower.




          “Withdrawal Liability”: means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Title IV
of ERISA.




          1.2 Other Definitional Provisions. (a) Unless otherwise specified therein, all terms
defined in this Agreement shall have the defined meanings when used in the other Loan Documents or
any certificate or other document made or delivered pursuant hereto or thereto.




          (b) As used herein and in the other Loan Documents, and any certificate or other document
made or delivered pursuant hereto or thereto, (i) accounting terms relating to any Group









 




20


Member not defined in Section 1.1 and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them under GAAP, (ii) the words
“include”, “includes” and “including” shall be deemed to be followed by the phrase “without
limitation”, (iii) the word “incur” shall be construed to mean incur, create, issue, assume, become
liable in respect of or suffer to exist (and the words “incurred” and “incurrence” shall have
correlative meanings), (iv) 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, Capital Stock, securities, revenues, accounts, leasehold interests and contract
rights, and (v) references to agreements or other Contractual Obligations shall, unless otherwise
specified, be deemed to refer to such agreements or Contractual Obligations as amended,
supplemented, restated or otherwise modified from time to time (subject to any restrictions on such
amendments, supplements, restatements or modifications set forth herein).




          (c) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.




          (d) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




SECTION 2. AMOUNT AND TERMS OF COMMITMENTS




          2.1 Term Commitments. Subject to the terms and conditions hereof, each Term Lender
severally agrees to make a term loan (a “Term Loan”) to the Borrower on the Closing Date in
an amount not to exceed the amount of the Term Commitment of such Lender. The Term Loans may from
time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.10.




          2.2 Procedure for Term Loan Borrowing. The Borrower shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent prior to 10:00 A.M.,
New York City time, (a) three Business Days prior to the anticipated Closing Date, in the case of
Eurodollar Loans, or (b) on the day of the anticipated Closing Date, in the case of ABR Loans)
requesting that the Term Lenders make the Term Loans on the Closing Date and specifying the amount
to be borrowed. Unless otherwise specifically requested in the borrowing notice, the Term Loans
made on the Closing Date shall initially be ABR Loans. Upon receipt of such notice the
Administrative Agent shall promptly notify each Term Lender thereof. Not later than 12:00 Noon,
New York City time, on the Closing Date each Term Lender shall make available to the Administrative
Agent at the Funding Office an amount in immediately available funds equal to the Term Loan or Term
Loans to be made by such Lender. The Administrative Agent shall credit the account of the Borrower
on the books of such office of the Administrative Agent with the aggregate of the amounts made
available to the Administrative Agent by the Term Lenders in immediately available funds. Unless
previously terminated pursuant to Section 8, the unused Term Commitments shall terminate
immediately after the making of the Term Loans on the Closing Date.




          2.3 Repayment of Term Loans. The Term Loan of each Lender shall mature in 5 consecutive
annual installments, each of which shall be in an amount equal to such Lender’s Term Percentage
multiplied by the amount set forth below opposite such installment:





 











 





21




	 	 	 	 	 
	             Date 	 	Amount
	December 22, 2008
	 	$	10,000,000	 
	December 21, 2009
	 	$	10,000,000	 
	December 21, 2010
	 	$	10,000,000	 
	December 21, 2011
	 	$	10,000,000	 
	December 21, 2012
	 	$	10,000,000	 






          It being understood that the final principal installment shall be repaid on the final maturity
date of the Term Loans and in any event shall be in an amount equal to the aggregate principal
amount of the Term Loans outstanding on such date.




          2.4 Revolving Commitments. (a) Subject to the terms and conditions hereof, each
Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the
Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount
at any one time outstanding which, when added to such Lender’s Revolving Percentage of the L/C
Obligations then outstanding, does not exceed the amount of such Lender’s Revolving Commitment.
During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing,
prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the
terms and conditions hereof. The Revolving Loans may from time to time be Eurodollar Loans or ABR
Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with
Sections 2.5 and 2.10.




          (b) The Borrower shall repay all outstanding Revolving Loans on the Revolving Termination
Date.




          (c) The Borrower may from time to time on up to two occasions elect to increase the Revolving
Commitments in a minimum amount of $25,000,000 (or such lesser amount as the difference between
$50,000,000 and the amount of any previous increase of the Revolving Commitments hereunder) so long
as, after giving effect thereto, the Total Revolving Commitments do not exceed $225,000,000. The
Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so
agreeing to an increase in its Revolving Commitment, an “Increasing Lender”), or by one or
more banks, financial institutions or other entities (each such bank, financial institution or
other entity, an “Augmenting Lender”), to increase their existing Revolving Commitments, or
extend Revolving Commitments, as the case may be, provided that (i) each Augmenting Lender, shall
be subject to the approval of the Borrower and shall be reasonably acceptable to the Administrative
Agent, (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender
execute an agreement substantially in the form of Exhibit H hereto, and (y) in the case of an
Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in
the form of Exhibit I hereto and (iii) no Lender shall have any obligation to participate in any
such increase of the Revolving Commitments. Increases and new Revolving Commitments created
pursuant to this clause shall become effective on the date agreed by the Borrower, the
Administrative Agent and the relevant Increasing Lenders and/or Augmenting Lenders, as the case may
be, and the Administrative Agent shall notify each affected Lender thereof. Notwithstanding the
foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender), shall become effective under this paragraph unless, (i) on the
proposed date of the effectiveness of such increase, the conditions set forth in paragraphs (a) and
(b) of Section 5.2 shall be satisfied or waived by the Required Lenders and the Administrative
Agent shall have received a certificate to that effect dated such date and executed by a
Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received documents
consistent with those delivered on the Closing Date under Section 5.1(h) as to the corporate power
and authority of the Borrower to borrow hereunder after giving effect to such increase and, if
requested, a legal opinion of counsel to the Borrower and (iii) if Indebtedness is proposed to be
incurred under the Revolving Commitments on the proposed date of the









 



22


effectiveness of such increase, after giving effect to any Indebtedness incurred under the increased Revolving
Commitments, on a pro forma basis, the Borrower is in compliance with Section 7.1 as of the last
day of the immediately preceding fiscal quarter for which financial statements have been delivered
pursuant to Section 6.1. On the effective date of any increase in the Revolving Commitments, (i)
each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative
Agent such amounts in immediately available funds as the Administrative Agent shall determine, for
the benefit of the other relevant Revolving Lenders, as being required in order to cause, after
giving effect to such increase and the use of such amounts to make payments to such other relevant
Revolving Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the
Revolving Lenders to equal its Revolving Percentage of such outstanding Revolving Loans, (ii) the
Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the
date of any increase in the Revolving Commitments (with such reborrowing to consist of the Types of
Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by
the Borrower in accordance with the requirements of Section 2.5), (iii) the risk participations in
outstanding Letters of Credit shall be automatically adjusted such that each Revolving Lender shall
have a risk participation in each outstanding Letter of Credit equal to its Revolving Percentage
and (iv) the Borrower shall pay all outstanding accrued interest and fees through the effective
date. The deemed payments made pursuant to clause (ii) of the immediately preceding sentence in
respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the
provisions of Section 2.18 if the deemed payment occurs other than on the last day of the related
Interest Periods.




          2.5 Procedure for Revolving Loan Borrowing. (a) The Borrower may borrow under the
Revolving Commitments during the Revolving Commitment Period on any Business Day, provided
that the Borrower shall give the Administrative Agent irrevocable notice (which notice must be
received by the Administrative Agent prior to 11:00 A.M., New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b) on the day of
the requested Borrowing Date, in the case of ABR Loans) (provided that any such notice of a
borrowing of ABR Loans under the Revolving Facility to finance payments required by Section 3.5 may
be given not later than 10:00 A.M., New York City time, on the date of the proposed borrowing),
specifying (i) the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing
Date and (iii) in the case of Eurodollar Loans, the respective amounts of each such Type of Loan
and the respective lengths of the initial Interest Period therefor. Unless otherwise specifically
requested in the respective borrowing notice, any Revolving Loans made on the Closing Date shall
initially be ABR Loans. Each borrowing under the Revolving Commitments shall be in an amount equal
to (x) in the case of ABR Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available Revolving Commitments are less than $1,000,000, such lesser amount) and (y) in the case
of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Upon receipt
of any such notice from the Borrower, the Administrative Agent shall promptly notify each Revolving
Lender thereof. Each Revolving Lender will make the amount of its pro rata share
of each borrowing available to the Administrative Agent for the account of the Borrower at the
Funding Office prior to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such borrowing will then be
made available to the Borrower by the Administrative Agent crediting the account of the Borrower on the books of
such office with the aggregate of the amounts made available to the Administrative Agent by the
Revolving Lenders and in like funds as received by the Administrative Agent.




          (b) Notices under this Section 2.5 shall be made by a Responsible Officer on behalf of the
Borrower.




          2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the Administrative Agent for
the account of each Revolving Lender a commitment fee for the period from and including the









 



23


date hereof to the last day of the Revolving Commitment Period, computed at the Commitment Fee Rate on
the average daily amount of the Available Revolving Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on each Fee Payment Date, commencing on the
first such date to occur after the date hereof.




          (b) The Borrower agrees to pay to the Administrative Agent the fees in the amounts and on the
dates as set forth in any fee agreements with the Administrative Agent and to perform any other
obligations contained therein.




          2.7 Termination or Reduction of Revolving Commitments. (a) The Borrower shall have the
right, upon not less than three Business Days’ notice to the Administrative Agent, to terminate the
Revolving Commitments or, from time to time, to reduce the amount of the Revolving Commitments;
provided that no such termination or reduction of Revolving Commitments shall be permitted
if, after giving effect thereto and to any prepayments of the Revolving Loans made on the effective
date thereof, the Total Revolving Extensions of Credit would exceed the Total Revolving
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a whole multiple
thereof, and shall reduce permanently the Revolving Commitments then in effect.




          (b) Notices under this Section 2.7 shall be made by a Responsible Officer on behalf of the
Borrower.




          2.8 Optional Prepayments. The Borrower may at any time and from time to time prepay the
Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to the
Administrative Agent no later than 11:00 A.M., New York City time, three Business Days prior
thereto, in the case of Eurodollar Loans, and no later than 11:00 A.M., New York City time, one
Business Day prior thereto, in the case of ABR Loans, which notice shall specify the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans or ABR Loans;
provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to
Section 2.18. Upon receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be
due and payable on the date specified therein, together with (except in the case of Revolving Loans
that are ABR Loans) accrued interest to such date on the amount prepaid. Partial prepayments of
Term Loans and Revolving Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple thereof.




          2.9
Mandatory Prepayments. (a) If any Indebtedness shall be issued or incurred by any Group Member (excluding any
Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term
Loans as set forth in Section 2.9(c).




          (b) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or
Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net
Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in
Section 2.9(c); provided, that, notwithstanding the foregoing, on each Reinvestment
Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant
Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section
2.9(c).




          (c) Amounts to be applied in connection with prepayments made pursuant to this Section 2.9
shall be applied to the prepayment of the Term Loans in accordance with Section 2.15(b).









 



24



          2.10 Conversion and Continuation Options. (a) The Borrower may elect from time to time
to convert Eurodollar Loans to ABR Loans by giving the Administrative Agent prior irrevocable
notice of such election no later than 11:00 A.M., New York City time, on the Business Day preceding
the proposed conversion date, provided that any such conversion of Eurodollar Loans may
only be made on the last day of an Interest Period with respect thereto. The Borrower may elect
from time to time to convert ABR Loans to Eurodollar Loans by giving the Administrative Agent prior
irrevocable notice of such election no later than 11:00 A.M., New York City time, on the third
Business Day preceding the proposed conversion date (which notice shall specify the length of the
initial Interest Period therefor), provided that no ABR Loan under a particular Facility
may be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing
and the Administrative Agent or the Majority Facility Lenders in respect of such Facility have
determined in its or their sole discretion not to permit such conversions. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender thereof.




          (b) Any Eurodollar Loan may be continued as such upon the expiration of the then current
Interest Period with respect thereto by the Borrower giving irrevocable notice to the
Administrative Agent, in accordance with the applicable provisions of the term “Interest Period”
set forth in Section 1.1, of the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan under a particular Facility may be continued as such when
any Event of Default has occurred and is continuing and the Administrative Agent has or the
Majority Facility Lenders in respect of such Facility have determined in its or their sole
discretion not to permit such continuations, and provided, further, that if the
Borrower shall fail to give any required notice as described above in this paragraph or if such
continuation is not permitted pursuant to the preceding proviso such Loans shall be automatically
converted to ABR Loans on the last day of such then expiring Interest Period. Upon receipt of any
such notice the Administrative Agent shall promptly notify each relevant Lender thereof.




          (c) Notices under this Section 2.10 shall be made by a Responsible Officer on behalf of the
Borrower.




          2.11 Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions and continuations of Eurodollar Loans and all selections of
Interest Periods shall be in such amounts and be made pursuant to such elections so that, (a) after
giving effect thereto, the aggregate principal amount of the Eurodollar Loans comprising each
Eurodollar Tranche shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no more than ten
Eurodollar Tranches shall be outstanding at any one time.




          2.12 Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall bear interest for
each day during each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.




          (b) Each ABR Loan shall bear interest at a rate per annum equal to the ABR plus the
Applicable Margin.




          (c) (i) If all or a portion of the principal amount of any Loan or Reimbursement Obligation
shall not be paid when due (whether at the stated maturity, by acceleration or otherwise), all
outstanding Loans and Reimbursement Obligations (whether or not overdue) shall bear interest at a
rate per annum equal to (x) in the case of the Loans, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this Section plus 2% or (y) in the case of
Reimbursement Obligations, the rate applicable to ABR Loans under the Revolving Facility
plus 2%, and (ii) if all or a portion of any interest payable on any Loan or Reimbursement
Obligation or any commitment fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by









 




25


acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans under the relevant
Facility plus 2% (or, in the case of any such other amounts that do not relate to a
particular Facility, the rate then applicable to ABR Loans under the Revolving Facility
plus 2%), in each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (as well after as before judgment).



          (d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to paragraph (c) of this Section shall be payable from time to time on
demand.



          2.13 Computation of Interest and Fees. (a) Interest and fees payable pursuant hereto
shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with
respect to ABR Loans the rate of interest on which is calculated on the basis of the Prime Rate,
the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the
interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the Borrower and the
relevant Lenders of the effective date and the amount of each such change in interest rate.



          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and the Lenders in the
absence of manifest error. The Administrative Agent shall, at the request of the Borrower, deliver
to the Borrower a statement showing the quotations used by the Administrative Agent in determining
any interest rate pursuant to Section 2.12(a).



          2.14 Inability to Determine Interest Rate. If prior to the first day of any Interest
Period:



          (a) the Administrative Agent shall have determined (which determination shall be conclusive
and binding upon the Borrower) that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or



          (b) the Administrative Agent shall have received notice from the Majority Facility Lenders
in respect of the relevant Facility that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their affected Loans during such
Interest Period,



the Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
relevant Lenders as soon as practicable thereafter. If such notice is given (x) any Eurodollar
Loans under the relevant Facility requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be continued as ABR
Loans and (z) any outstanding Eurodollar Loans under the relevant Facility shall be converted, on
the last day of the then-current Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to convert Loans under
the relevant Facility to Eurodollar Loans.




          2.15 Pro Rata Treatment and Payments. (a) Each borrowing by the Borrower from the
Lenders hereunder, each payment by the Borrower on account of any commitment fee and any









 



26


reduction of the Commitments of the Lenders shall be made pro rata according to the
respective Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.




          (b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Term Loans shall be made pro rata according to the respective
outstanding principal amounts of the Term Loans then held by the Term Lenders. Amounts prepaid on
account of the Term Loans may not be reborrowed.




          (c) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders.




          (d) All payments (including prepayments) to be made by the Borrower hereunder, whether on
account of principal, interest, fees or otherwise, shall be made without setoff, deduction or
counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to
the Administrative Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds, except that payments pursuant to Sections 2.16, 2.17, 2.18 and 10.5
shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute
such payments to each relevant Lender promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and payable on a day
other than a Business Day, such payment shall be extended to the next succeeding Business Day. If
any payment on a Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which event such payment
shall be made on the immediately preceding Business Day. In the case of any extension of any
payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at
the then applicable rate during such extension.




          (e) Unless the Administrative Agent shall have been notified in writing by any Lender prior
to a borrowing that such Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent, the Administrative Agent may assume that such
Lender is making such amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If
such amount is not made available to the Administrative Agent by the required time on the Borrowing
Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a
rate determined by the Administrative Agent in accordance with banking industry rules on interbank
compensation, for the period until such Lender makes such amount immediately available to the
Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the Administrative Agent
by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall
also be entitled to recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower.




          (f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective pro rata
shares of a corresponding amount. If such payment is not made to the Administrative Agent by the
Borrower within three Business Days after such due date, the Administrative Agent shall be entitled
to recover, on demand, from each









 



27


Lender to which any amount which was made available pursuant to
the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.




          2.16 Requirements of Law. (a) If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:





          (i) shall subject any Lender to any tax of any kind whatsoever with respect to this
Agreement, any Letter of Credit, any Application or any Eurodollar Loan made by it, or
change the basis of taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.17 and changes in the rate of tax on the overall net
income of such Lender);




          (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
loan or similar requirement against assets held by, deposits or other liabilities in or for
the account of, advances, loans or other extensions of credit by, or any other acquisition
of funds by, any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or




          (iii) shall impose on such Lender any other condition;



          and the result of any of the foregoing is to increase the cost to such Lender, by an amount
that such Lender deems to be material, of making, converting into, continuing or maintaining
Eurodollar Loans or issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay
such Lender, upon its demand, any additional amounts necessary to compensate such Lender for such
increased cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so entitled.




          (b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of return on such Lender’s
or such corporation’s capital as a consequence of its obligations hereunder or under or in respect
of any Letter of Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration such Lender’s or
such corporation’s policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the Borrower (with a copy
to the Administrative Agent) of a written request therefor, the Borrower shall pay to such Lender
such additional amount or amounts as will compensate such Lender or such corporation for such
reduction.




          (c) A certificate as to any additional amounts payable pursuant to this Section submitted by
any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive in the
absence of manifest error. Notwithstanding anything to the contrary in this Section, the Borrower
shall not be required to compensate a Lender pursuant to this Section for any amounts incurred more
than nine months prior to the date that such Lender notifies the Borrower of such Lender’s
intention to claim









 



28


compensation therefor; provided that, if the circumstances giving rise
to such claim have a retroactive effect, then such nine-month period shall be extended to include
the period of such retroactive effect. The obligations of the Borrower pursuant to this Section
shall survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.




          2.17 Taxes. (a) All payments made by the Borrower under this Agreement shall be made free
and clear of, and without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or former connection between the
Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Administrative Agent or such Lender having executed, delivered
or performed its obligations or received a payment under, or enforced, this Agreement or any other
Loan Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions
or withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any
amounts payable to the Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary to yield to the
Administrative Agent or such Lender (after payment of all Non-Excluded Taxes and Other Taxes)
interest or any such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender’s failure to comply with the requirements of paragraph (d) or (e)
of this Section or (ii) that are United States withholding taxes imposed on amounts payable to such
Lender at the time such Lender becomes a party to this Agreement, except to the extent that such
Lender’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts
from the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.




          (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.




          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly
as possible thereafter the Borrower shall send to the Administrative Agent for its own account or
for the account of the relevant Lender, as the case may be, a certified copy of an original
official receipt received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required documentary evidence, the
Borrower shall indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any Lender as a result
of any such failure. The Borrower shall indemnify the Administrative Agent and each Lender, within
10 days after written demand thereof, for the full amount of any Non-Excluded Taxes or Other Taxes
(including Non-Excluded Taxes and Other Taxes imposed or asserted on or attributed to amounts
payable under this Section 2.17) paid by the Administrative Agent or such Lender, as the case may
be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Non-Excluded 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 by the Administrative Agent on its own behalf
or on behalf of a Lender, shall be conclusive absent manifest error.




          (d) Each Lender (or Transferee) that is not a “U.S. Person” as defined in Section
7701(a)(30) of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the
Administrative









 



29


Agent (or, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two copies of either U.S. Internal Revenue Service Form
W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio
interest”, a statement substantially in the form of Exhibit G and a Form W-8BEN, or any
subsequent versions thereof or successors thereto, properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S. federal withholding
tax on all payments by the Borrower under this Agreement and the other Loan Documents. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it becomes a party to this
Agreement (or, in the case of any Participant, on or before the date such Participant purchases the
related participation). In addition, each Non-U.S. Lender shall deliver such forms promptly upon
the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each
Non-U.S. Lender shall promptly notify the Borrower at any time it determines that it is no longer
in a position to provide any previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.




          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement 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, 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, provided that such Lender is legally entitled to complete, execute and deliver such
documentation and in such Lender’s judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.




          (f) If the Administrative Agent or any Lender determines, in its sole discretion, that it has
received a refund of any Non-Excluded 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 2.17, it shall pay over such refund to the Borrower (but only to the extent of indemnity
payments made, or additional amounts paid, by the Borrower under this Section 2.17 with respect to
the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender 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 or such Lender, 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 or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such Governmental
Authority. This paragraph shall not be construed to require the Administrative Agent or any Lender
to make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.




          (g) The agreements in this Section shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder.




          2.18 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a consequence of
(a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar
Loans after the Borrower has given a notice requesting the same in accordance with the provisions
of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from
Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of
this Agreement









 



30


or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last
day of an Interest Period with respect thereto. Such indemnification may include an amount equal
to the excess, if any, of (i) the amount of interest that would have accrued on the amount so
prepaid, or not so borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that would have
accrued to such Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank eurodollar market. A certificate as to any amounts payable
pursuant to this Section and including the basis therefor and a calculation of such amount, all in
reasonable detail, submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.




          2.19 Change of Lending Office. Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of Section 2.16 or 2.17(a) with respect to such Lender, it will, if
requested by the Borrower, use reasonable efforts (subject to overall policy considerations of such
Lender) to designate another lending office for any Loans affected by such event with the object of avoiding the consequences of
such event; provided, that such designation is made on terms that, in the sole judgment of
such Lender, cause such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect or
postpone any of the obligations of the Borrower or the rights of any Lender pursuant to Section
2.16 or 2.17(a).




          2.20 Replacement of Lenders. The Borrower shall be permitted to replace any Lender that
(a) requests reimbursement for amounts owing pursuant to Section 2.16 or 2.17(a), (b) defaults in
its obligation to make Loans hereunder, or (c) does not consent to any proposed amendment,
supplement, modification, consent or waiver of any provision of this Agreement or any other Loan
Document that requires the consent of each of the Lenders or each of the Lenders affected thereby
(so long as the consent of the Required Lenders (with the percentage in such definition being
deemed to be 66 2/3% for this purpose) has been obtained), with a replacement financial
institution; provided that (i) such replacement does not conflict with any Requirement of
Law, (ii) no Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) prior to any such replacement, such Lender shall have taken no action under
Section 2.19 so as to eliminate the continued need for payment of amounts owing pursuant to Section
2.16 or 2.17(a), (iv) the replacement financial institution shall purchase, at par, all Loans and
other amounts owing to such replaced Lender on or prior to the date of replacement, (v) the
Borrower shall be liable to such replaced Lender under Section 2.18 if any Eurodollar Loan owing to
such replaced Lender shall be purchased other than on the last day of the Interest Period relating
thereto, (vi) the replacement financial institution shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (provided that the Borrower shall be obligated to
pay the registration and processing fee referred to therein), (viii) until such time as such
replacement shall be consummated, the Borrower shall pay all additional amounts (if any) required
pursuant to Section 2.16 or 2.17(a), as the case may be, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any other Lender
shall have against the replaced Lender.




          2.21 General. When used in this Section 2, the term “certificate” shall mean a certificate
that includes (to the extent applicable), in reasonable detail, (i) a description of the reason(s)
substantiating the action being taken by a Lender and (ii) a calculation of any amounts payable by
the Borrower to such Lender. It is also agreed that at any time that any Lender exercises its
rights pursuant to









 



31


Sections 2.14, 2.16 or 2.17, it shall do so not only with respect to the
Borrower but in accordance with its policies or other requirements applicable to borrowers
similarly situated to the Borrower.




SECTION 3. LETTERS OF CREDIT




          3.1 L/C Commitment. (a) Subject to the terms and conditions hereof, the Issuing Lender,
in reliance on the agreements of the other Revolving Lenders set forth in Section 3.4(a), agrees to
issue letters of credit (“Letters of Credit”) for the account of the Borrower on any
Business Day during the Revolving Commitment Period in such form as may be approved from time to
time by the Issuing Lender; provided that the Issuing Lender shall have no obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would
exceed the L/C Commitment or (ii) the aggregate amount of the Available Revolving Commitments would
be less than zero. Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the earlier of (x) the first anniversary of its date of issuance and (y) the date that is five Business Days prior to the Revolving Termination Date,
provided that any Letter of Credit with a one-year term may provide for the renewal thereof
for additional one-year periods (which shall in no event extend beyond the date referred to in
clause (y) above).




          (b) The Issuing Lender shall not at any time be obligated to issue any Letter of Credit if
such issuance would conflict with, or cause the Issuing Lender or any L/C Participant to exceed any
limits imposed by, any applicable Requirement of Law.




          (c) The parties hereto agree that the Existing Letters of Credit will automatically, without
any further action on the part of any Person, be deemed to be Letters of Credit issued hereunder on
the Closing Date for the account of the Borrower.




          3.2 Procedure for Issuance of Letter of Credit. The Borrower may from time to time
request that the Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender at its
address for notices specified herein an Application therefor, completed to the satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and information as the
Issuing Lender may request. Upon receipt of any Application, the Issuing Lender will process such
Application and the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall promptly issue the
Letter of Credit requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than two Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as otherwise may be
agreed to by the Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof. The Issuing Lender shall
promptly furnish to the Administrative Agent, which shall in turn promptly furnish to the Lenders,
notice of the issuance of each Letter of Credit (including the amount thereof).




          3.3 Fees and Other Charges. (a) The Borrower will pay a fee on the face amount of all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin then in effect
with respect to Eurodollar Loans under the Revolving Facility, shared ratably among the Revolving
Lenders and payable quarterly in arrears on each Fee Payment Date after the issuance date. In
addition, the Borrower shall pay to the Issuing Lender for its own account a fronting fee of 0.125%
per annum on the undrawn and unexpired amount of each Letter of Credit, payable quarterly in
arrears on each Fee Payment Date after the issuance date.









 



32



          (b) In addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing
Lender for such normal and customary costs and expenses as are incurred or charged by the Issuing
Lender in issuing, negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.




          3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Lender to issue Letters of Credit, each
L/C Participant irrevocably agrees to accept and purchase and hereby accepts and purchases from the
Issuing Lender, on the terms and conditions set forth below, for such L/C Participant’s own account
and risk an undivided interest equal to such L/C Participant’s Revolving Percentage in the Issuing
Lender’s obligations and rights under and in respect of each Letter of Credit and the amount of
each draft paid by the Issuing Lender thereunder. Each L/C Participant agrees with the Issuing Lender that, if a draft is paid
under any Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C Participant shall pay to the Issuing
Lender upon demand at the Issuing Lender’s address for notices specified herein an amount equal to
such L/C Participant’s Revolving Percentage of the amount of such draft, or any part thereof, that
is not so reimbursed. Each L/C Participant’s obligation to pay such amount shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such L/C Participant may have against the
Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the
Borrower, any other Loan Party or any other L/C Participant or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing




          (b) If any amount required to be paid by any L/C Participant to the Issuing Lender pursuant
to Section 3.4(a) in respect of any unreimbursed portion of any payment made by the Issuing Lender
under any Letter of Credit is paid to the Issuing Lender within three Business Days after the date
such payment is due, such L/C Participant shall pay to the Issuing Lender on demand an amount equal
to the product of (i) such amount, times (ii) the daily average Federal Funds Effective Rate during
the period from and including the date such payment is required to the date on which such payment
is immediately available to the Issuing Lender, times (iii) a fraction the numerator of which is
the number of days that elapse during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to Section 3.4(a) is not made available
to the Issuing Lender by such L/C Participant within three Business Days after the date such
payment is due, the Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the rate per annum
applicable to ABR Loans under the Revolving Facility. A certificate of the Issuing Lender
submitted to any L/C Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.




          (c) Whenever, at any time after the Issuing Lender has made payment under any Letter of
Credit and has received from any L/C Participant its pro rata share of such payment
in accordance with Section 3.4(a), the Issuing Lender receives any payment related to such Letter
of Credit (whether directly from the Borrower or otherwise, including proceeds of collateral
applied thereto by the Issuing Lender), or any payment of interest on account thereof, the Issuing
Lender will distribute to such L/C Participant its pro rata share thereof;
provided, however, that in the event that any such payment received by the Issuing
Lender shall be required to be returned by the Issuing Lender, such L/C Participant shall return to
the Issuing Lender the portion thereof previously distributed by the Issuing Lender to it.




          3.5
Reimbursement Obligation of the Borrower. If any draft is paid under any Letter of
Credit, the Borrower shall reimburse the Issuing Lender for the amount of (a) the draft so paid and
(b)









 



33


any taxes, fees, charges or other costs or expenses incurred by the Issuing Lender in
connection with such payment, not later than 12:00 Noon, New York City time, on (i) the Business
Day that the Borrower receives notice of such draft, if such notice is received on such day prior
to 10:00 A.M., New York City time, or (ii) if clause (i) above does not apply, the Business Day
immediately following the day that the Borrower receives such notice. Each such payment shall be
made to the Issuing Lender at its address for notices referred to herein in Dollars and in
immediately available funds. Interest shall be payable on any such amounts from the date on which
the relevant draft is paid until payment in full at the rate set forth in (x) until the Business
Day next succeeding the date of the relevant notice, Section 2.12(b) and (y) thereafter, Section
2.12(c).




          3.6 Obligations Absolute. The Borrower’s obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower may have or have had against the Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower also agrees with
the Issuing Lender that the Issuing Lender shall not be responsible for, and the Borrower’s
Reimbursement Obligations under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit, except for errors or omissions found
by a final and nonappealable decision of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of the Issuing Lender. The Borrower agrees that any
action taken or omitted by the Issuing Lender under or in connection with any Letter of Credit or
the related drafts or documents, if done in the absence of gross negligence or willful misconduct,
shall be binding on the Borrower and shall not result in any liability of the Issuing Lender to the
Borrower.




          3.7 Letter of Credit Payments. If any draft shall be presented for payment under any
Letter of Credit, the Issuing Lender shall promptly notify the Borrower of the date and amount
thereof. The responsibility of the Issuing Lender to the Borrower in connection with any draft
presented for payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that the documents
(including each draft) delivered under such Letter of Credit in connection with such presentment
are substantially in conformity with such Letter of Credit.




          3.8 Applications. To the extent that any provision of any Application related to any
Letter of Credit is inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply.




SECTION 4. REPRESENTATIONS AND WARRANTIES




          To induce the Administrative Agent and the Lenders to enter into this Agreement and to make
the Loans and issue or participate in the Letters of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and each Lender that:



          4.1 Financial Condition. (a) The unaudited pro forma consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at September 30, 2007 (including the
notes thereto) (the “Pro Forma Balance Sheet”), copies of which have heretofore been
furnished to each Lender, has been prepared giving effect (as if such events had occurred on such
date) to (i) the consummation of the Refinancing, (ii) the Loans to be made on the Closing Date and
the use of proceeds thereof and (iii) the









 



34


payment of fees and expenses in connection with the
foregoing. The Pro Forma Balance Sheet has been prepared in good faith based on reasonable
estimates available to the Borrower as of the date of delivery thereof, and presents fairly on a
pro forma basis the estimated financial position of Borrower and its consolidated
Subsidiaries as at September 30, 2007, assuming that the events specified in the preceding sentence had actually
occurred at such date.




          (b) (b) The audited consolidated balance sheets of the Borrower as at December 31, 2004,
December 31, 2005 and December 31, 2006, and the related consolidated statements of income and of
cash flows for the fiscal years ended on such dates, reported on by and accompanied by an
unqualified report from Ernst & Young LLP, present fairly the consolidated financial condition of
the Borrower as at such dates, and the consolidated results of its operations and its consolidated
cash flows for the respective fiscal years then ended. The unaudited consolidated balance sheet of
the Borrower as at September 30, 2007, and the related unaudited consolidated statements of income
and cash flows for the nine-month period ended on such date, present fairly the consolidated
financial condition of the Borrower as at such date, and the consolidated results of its operations
and its consolidated cash flows for the nine-month period then ended (subject to normal year end
audit adjustments). All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently throughout the periods
involved (subject to normal year-end audit adjustments and except as approved by the aforementioned
firm of accountants and disclosed therein). No Group Member has any material Guarantee
Obligations, contingent liabilities of material liabilities for taxes, or any long term leases or
unusual forward or long term commitments, including any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not reflected in the
most recent financial statements referred to in this paragraph. During the period from December
31, 2006 to and including the date hereof there has been no Disposition by any Group Member of any
material part of its business or property that has not been disclosed by Borrower to the
Administrative Agent.




          4.2 No Change. Since December 31, 2006, there has been no development or event that has
had or could reasonably be expected to have a Material Adverse Effect.




          4.3 Existence; Compliance with Law. Each Group Member (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its property, to lease the property it
operates as lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation or other organization and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or the conduct of its
business requires such qualification, except to the extent failure to so qualify or be in good
standing could not reasonably be expected to have a Material Adverse Effect and (d) is in
compliance with all Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse Effect.




          4.4 Power; Authorization; Enforceable Obligations. Each Loan Party has the power and
authority, and the legal right, to make, deliver and perform the Loan Documents to which it is a
party and, in the case of the Borrower, to obtain extensions of credit hereunder. Each Loan Party
has taken all necessary organizational action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower, to authorize the
extensions of credit on the terms and conditions of this Agreement. No consent or authorization
of, filing with, notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with Refinancing and the extensions of credit hereunder or
with the execution, delivery, performance, validity or enforceability of this Agreement or any of
the Loan Documents, except (i) consents, authorizations, filings and notices described in
Schedule  4.4, which consents, authorizations, filings and notices have been obtained or made
and are in full force and effect and (ii) the filings referred to in Section 4.19. Each









 



35


Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will constitute, a legal, valid
and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party
in accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is sought by proceedings
in equity or at law).




          4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the other
Loan Documents, the issuance of Letters of Credit, the borrowings hereunder and the use of the
proceeds thereof will not violate any Requirement of Law or any Contractual Obligation of any Group
Member and will not result in, or require, the creation or imposition of any Lien on any of their
respective properties or revenues pursuant to any Requirement of Law or any such Contractual
Obligation (other than the Liens created by the Security Documents). No Requirement of Law or
Contractual Obligation applicable to the Borrower or any of its Subsidiaries could reasonably be
expected to have a Material Adverse Effect.




          4.6 Litigation. No litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or against
any Group Member or against any of their respective properties or revenues (a) with respect to any
of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could
reasonably be expected to have a Material Adverse Effect.




          4.7 No Default. No Group Member is in default under or with respect to any of its
Contractual Obligations in any respect that could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.




          4.8 Ownership of Property; Liens. Each Group Member has title in fee simple to, or a
valid leasehold interest in, all its real property, and good title to, or a valid leasehold
interest in, all its other property, and none of such property is subject to any Lien except (i) as
set forth in the title policies and/or endorsements delivered in connection with the Existing Term
Credit Agreement and (ii) as permitted by Section 7.3.




          4.9 Intellectual Property. Each Group Member owns, or is licensed to use, all
Intellectual Property necessary for the conduct of its business as currently conducted. No
material claim has been asserted and is pending by any Person challenging or questioning the use of
any Intellectual Property or the validity or effectiveness of any Intellectual Property, nor does
the Borrower know of any valid basis for any such claim. The use of Intellectual Property by each
Group Member does not infringe on the rights of any Person in any material respect.




          4.10
Taxes. Each Group Member has filed or caused to be filed all Federal, state and other material tax
returns that are required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority (other than any
the amount or validity of which are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been provided on the
books of the relevant Group Member); to the Borrower’s knowledge, no tax Lien has been filed and no
claim is being asserted, with respect to any such tax, fee or other charge.




          4.11 Federal Regulations. No part of the proceeds of any Loans, and no other extensions of
credit hereunder, will be used (a) for “buying” or “carrying” any “margin stock” (within the
respective meanings of each of the quoted terms under Regulation U) in violation of Regulation U.
If





 











 





36



requested by any Lender or the Administrative Agent, the Borrower will furnish to
the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U 1, as applicable, referred to in Regulation U.




          4.12 Labor Matters. Except as, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group
Member pending or, to the knowledge of the Borrower, threatened; (b) hours worked by and payment
made to employees of each Group Member have not been in violation of the Fair Labor Standards Act
or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from
any Group Member on account of employee health and welfare insurance have been paid or accrued as a
liability on the books of the relevant Group Member.




          4.13 ERISA. (a) Except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect: (i) each Group Member and each Commonly Controlled
Entity is in compliance with the applicable provisions of ERISA and the provisions of the Code
relating to Plans and the regulations and published interpretations thereunder; (ii) no ERISA Event
has occurred or is reasonably expected to occur; and (iii) all amounts required by applicable law
with respect to, or by the terms of, any retiree welfare benefit arrangement maintained by any
Group Member or any Commonly Controlled Entity or to which any Group Member or any Commonly
Controlled Entity has an obligation to contribute have been accrued in accordance with Statement of
Financial Accounting Standards No. 106. The present value of all accumulated benefit obligations
under each Pension Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than a material amount the fair market value of the assets
of such Pension Plan allocable to such accrued benefits.




          (b) Except as, in the aggregate, could not reasonably be expected to have a Material Adverse
Effect, (i) all employer and employee contributions required by applicable law or by the terms of
any Foreign Benefit Arrangement or Foreign Plan have been made, or, if applicable, accrued in
accordance with normal accounting practices; (ii) the accrued benefit obligations of each Foreign
Plan required to be funded (based on those assumptions used to fund such Foreign Plan) with respect
to all current and former participants do not exceed by more than a material amount the fair market
value of the assets of such Foreign Plan allocable to such accrued benefits, and all amounts
required by applicable law to provide benefits with respect to all current and former participants
under each Foreign Plan not required to be funded (based on applicable assumptions) have been
accrued in accordance with applicable law and are reflected on the most recent financial statements
of the applicable Loan Party or any ERISA Affiliate; (iii) each Foreign Plan that is required to be
registered has been registered and has been
maintained in good standing with applicable regulatory authorities; and (iv) each such Foreign
Benefit Arrangement and Foreign Plan is in compliance (A) with all material provisions of
applicable law and all material applicable regulations and published interpretations thereunder
with respect to such Foreign Benefit Arrangement or Foreign Plan and (B) with the terms of such
plan or arrangement.




          4.14 Investment Company Act; Other Regulations. No Loan Party is an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.




          4.15 Subsidiaries. Except as disclosed to the Administrative Agent by the Borrower in
writing from time to time after the Closing Date, (a) Schedule 4.15 sets forth the name and
jurisdiction of incorporation of each Subsidiary and, as to each such Subsidiary, the percentage of
each class of Capital Stock owned by any Loan Party and (b) there are no outstanding subscriptions,
options, warrants




 









 





37



(other than the Bear Sterns Warrant), calls, rights or other agreements or
commitments (other than stock options granted to employees or directors and directors’ qualifying
shares) of any nature relating to any Capital Stock of the Borrower or any Subsidiary, except as
created by the Loan Documents and pursuant to the Environmental Sale and the Universal Sale.




          4.16 Use of Proceeds. The proceeds of the Term Loans shall be used to finance a
portion of the Refinancing and related fees and expenses. The proceeds of the Revolving Loans, and
the Letters of Credit, shall be used to finance a portion of the Refinancing and related fees and
expenses and the working capital needs and general corporate purposes of the Borrower and its
Subsidiaries, including but not limited to the Permitted Capital Stock Repurchase so long as no
violation of Regulation U results therefrom.




          4.17 Environmental Matters. Except as, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect:




          (a) the facilities and properties owned, leased or operated by any Group Member (the
“Properties”) do not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any Environmental Law;




          (b) no Group Member has received or is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Properties or the business operated by any Group
Member (the “Business”), nor does the Borrower have knowledge or reason to believe that any
such notice will be received or is being threatened;




          (c) Materials of Environmental Concern have not been transported or disposed of from the
Properties in violation of, or in a manner or to a location that could give rise to liability
under, any Environmental Law, nor have any Materials of Environmental Concern been generated,
treated, stored or
disposed of at, on or under any of the Properties in violation of, or in a manner that could
give rise to liability under, any applicable Environmental Law;




          (d) no judicial proceeding or governmental or administrative action is pending or, to the
knowledge of the Borrower, threatened, under any Environmental Law to which any Group Member is or
will be named as a party with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with respect to the
Properties or the Business;




          (e) there has been no release or threat of release of Materials of Environmental Concern at or
from the Properties, or arising from or related to the operations of any Group Member in connection
with the Properties or otherwise in connection with the Business, in violation of or in amounts or
in a manner that could give rise to liability under Environmental Laws;




          (f) the Properties and all operations at the Properties are in compliance, and have in the
last five years been in compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about the Properties or violation of any Environmental Law with respect
to the Properties or the Business; and




          (g) no Group Member has assumed any liability of any other Person under Environmental Laws.




 









 





38




          4.18 Accuracy of Information, etc. No statement or information contained in this
Agreement, any other Loan Document, the Confidential Information Memorandum or any other document,
certificate or statement furnished by or on behalf of any Loan Party to the Administrative Agent or
the Lenders, or any of them, for use in connection with the transactions contemplated by this
Agreement or the other Loan Documents, contained as of the date such statement, information,
document or certificate was so furnished (or, in the case of the Confidential Information
Memorandum, as of the date of this Agreement), any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements contained herein or therein not
misleading. The projections and pro forma financial information contained in the
materials referenced above are based upon good faith estimates and assumptions believed by
management of the Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be viewed as fact and that
actual results during the period or periods covered by such financial information may differ from
the projected results set forth therein by a material amount. There is no fact known to any Loan
Party that could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential Information Memorandum
or in any other documents, certificates and statements furnished to the Administrative Agent and
the Lenders for use in connection with the transactions contemplated hereby and by the other Loan
Documents.




          4.19 Security Documents. (a) The Amended and Restated Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral described therein and
proceeds thereof. In the case of the Pledged Stock described in the Amended and Restated Guarantee
and Collateral Agreement, when stock certificates representing such Pledged Stock are delivered to
the Administrative Agent, and in the case of the other Collateral described in the Amended and
Restated Guarantee and Collateral Agreement, when financing statements and other filings specified
on Schedule 4.19(a) in appropriate form are filed in the offices
specified on Schedule 4.19(a), the Amended and Restated Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Collateral and the proceeds thereof, as security for the
Obligations (as defined in the Amended and Restated Guarantee and Collateral Agreement), in each
case prior and superior in right to any other Person (except, in the case of Collateral other than
Pledged Stock, Liens permitted by Section 7.3).




          (b) Each of the Amended Mortgages is effective to create in favor of the Administrative Agent,
for the benefit of the Lenders, a legal, valid and enforceable Lien on the Mortgaged Properties
described therein and proceeds thereof, and when the Mortgage Amendments are filed in the offices
specified on Schedule 4.19(b), each of the Amended Mortgages shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of the Loan Parties in
the Existing Mortgaged Properties and the proceeds thereof, as security for the Obligations (as
defined in the relevant Mortgage), in each case prior and superior in right to any other Person.




SECTION 5. CONDITIONS PRECEDENT




          5.1 Conditions to Closing Date. The amendments to the Existing Term Credit Agreement
effected hereby and the obligations of the Lenders to make or maintain Loans and of the Issuing
Lender to issue Letters of Credit shall not become effective until the date on which each of the
following conditions is satisfied:





     (a) Amended and Restated Credit Agreement; Amended and Restated Guarantee and
Collateral Agreement. The Administrative Agent shall have received (i) this Agreement,
executed and delivered by the Administrative Agent, the Borrower and each Person listed on



 









 





39





Schedule 1.1A, (ii) the Amended and Restated Guarantee and Collateral Agreement,
executed and delivered by the Borrower and each Subsidiary Guarantor and (iii) an
Acknowledgement and Consent in the form attached to the Amended and Restated Guarantee and
Collateral Agreement, executed and delivered by each Issuer (as defined therein), if any,
that is not a Loan Party.




     (b) Refinancing. (i) The Administrative Agent shall have received satisfactory
evidence that the Existing ABL Credit Agreement will be terminated and all amounts
thereunder will be paid in full and (ii) satisfactory arrangements shall have been made for
the termination of all Liens granted in connection therewith concurrently with the initial
borrowing hereunder on the Closing Date.




     (c) Pro Forma Balance Sheet; Financial Statements. The Lenders shall have
received (i) the Pro Forma Balance Sheet, (ii) audited consolidated financial statements of
the Borrower for the 2004, 2005 and 2006 fiscal years and (iii) unaudited interim
consolidated financial statements of the Borrower for each fiscal quarter ended after
December 31, 2006 and filed with the SEC, and such financial statements shall not, in the
reasonable judgment of the Lenders, reflect any material adverse change in the consolidated
financial condition of the Borrower, as reflected in the financial statements or projections
contained in the Confidential Information Memorandum.




     (d) Projections. The Lenders shall have received satisfactory projections
through 2012.




     (e) Approvals. All material governmental and third party approvals necessary
in connection with the continuing operations of the Group Members and the transactions
contemplated hereby, if any, shall have been obtained on satisfactory terms and be in full
force and effect. There shall not exist any action, investigation, litigation or proceeding
pending or threatened in any court or before any arbitrator or governmental authority that
could reasonably
be expected to have a Material Adverse Effect on the Borrower or a material adverse
effect on any of the transactions contemplated hereby.




     (f) Lien Searches. The Administrative Agent shall have received the results of
a recent lien search in each of the jurisdictions where the Loan Parties are organized and
where their chief executive offices are located, and such search shall reveal no liens on
any of the assets of the Loan Parties except for liens permitted by Section 7.3 or
discharged on or prior to the Closing Date pursuant to documentation satisfactory to the
Administrative Agent.




     (g) Fees. The Lenders and the Administrative Agent shall have received all
fees required to be paid on the Closing Date, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on or before the
Closing Date. All such amounts will be paid with proceeds of Loans made on the Closing Date
and will be reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.




     (h) Closing Certificate; Certified Certificate of Incorporation; Good Standing
Certificates. The Administrative Agent shall have received (i) a certificate of each
Loan Party, dated the Closing Date, substantially in the form of Exhibit C, with appropriate
insertions and attachments, including the certificate of incorporation of each Loan Party
that is a corporation certified by the relevant authority of the jurisdiction of
organization of such Loan Party, and (ii) a long form good standing certificate for each
Loan Party from its jurisdiction of organization.




     (i) Legal Opinions. The Administrative Agent shall have received an executed
legal opinion of (i) Andrews Kurth LLP, counsel to the Borrower and its Subsidiaries,
substantially in



 









 





40





the form of Exhibit F-1, (ii) Mark Airola, Esq., Borrower’s General
Counsel, substantially in the form of Exhibit F-2, respectively and (iii) King, LeBlanc &
Bland, P.L.L.C., special Louisiana and Texas counsel to the Borrower and its Subsidiaries,
substantially in the form of Exhibit F-3.




     (j) Pledged Stock; Stock Powers; Pledged Notes. The Administrative Agent shall
have received (i) the certificates representing the shares of Capital Stock pledged pursuant
to the Amended and Restated Guarantee and Collateral Agreement, together with an undated
stock power for each such certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory note (if any) pledged to the Administrative Agent
pursuant to the Amended and Restated Guarantee and Collateral Agreement endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor
thereof.




     (k) Filings, Registrations and Recordings. Each document (including any
Uniform Commercial Code financing statement) required by the Security Documents or under law
and reasonably requested by the Administrative Agent to be filed, registered or recorded in
order to create in favor of the Administrative Agent, for the benefit of the Lenders, a
perfected Lien on the Collateral described therein, prior and superior in right to any other
Person (other than with respect to Liens expressly permitted by Section 7.3), shall be in
proper form for filing, registration or recordation.




     (l) Mortgages, etc. (i) With respect to each Mortgaged Property listed on
Schedule 1.1(b), (each an “Existing Mortgaged Property”), the Administrative
Agent shall have received an amendment (each a “Mortgage Amendment”), to each
Existing Mortgage in form and substance reasonably satisfactory to the Administrative Agent.




     (ii) The Administrative Agent shall have received (x) in respect of each Existing
Mortgaged Property located in Texas with a value in excess of $2,500,000, a mortgagee’s
title insurance policy (or policies) or marked up unconditional binder for such insurance
and (y) in respect of each other Existing Mortgaged Property, a date down endorsement of the
title insurance policy (to the extent available) issued under the Existing Term Credit
Agreement, in each case in form and substance satisfactory to the Administrative Agent. The
Administrative Agent shall have received evidence satisfactory to it that all premiums in
respect of each such policy, all charges for mortgage recording tax, and all related
expenses, if any, have been paid.




     (iii) If requested by the Administrative Agent, the Administrative Agent shall have
received (A) a policy of flood insurance that (1) covers any parcel of improved real
property that is encumbered by any Mortgage, (2) is written in an amount not less than the
outstanding principal amount of the indebtedness secured by such Mortgage that is reasonably
allocable to such real property or the maximum limit of coverage made available with respect
to the particular type of property under the National Flood Insurance Act of 1968, whichever
is less, and (3) has a term ending not later than the maturity of the Indebtedness secured
by such Mortgage and (B) confirmation that the Borrower has received the notice required
pursuant to Section 208(e)(3) of Regulation H of the Board.




     (iv) The Administrative Agent shall have received a copy of all recorded documents
referred to, or listed as exceptions to title in, the title policy or policies referred to
in clause (ii) above and a copy of all other material documents affecting the Mortgaged
Properties.




     (m) Insurance. The Administrative Agent shall have received insurance
certificates satisfying the requirements of Section 5.2(b) of the Amended and Restated
Guarantee and Collateral Agreement.



 









 





41



For the purpose of determining compliance with the conditions specified in this Section 5.1, each
Lender that has signed this Agreement shall be deemed to have accepted, and to be satisfied with,
each document or other matter required under this Section 5.1 unless the Administrative Agent shall
have received written notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.




          5.2 Conditions to Each Extension of Credit. The agreement of each Lender to make any
extension of credit requested to be made by it on any date (including its initial extension of
credit) is subject to the satisfaction of the following conditions precedent:





     (a) Representations and Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of such date.




     (b) No Default. No Default or Event of Default shall have occurred and be
continuing on such date or after giving effect to the extensions of credit requested to be
made on such date.


Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower hereunder shall
constitute a representation and warranty by the Borrower as of the date of such extension of credit
that the conditions contained in this Section 5.2 have been satisfied.




SECTION 6. AFFIRMATIVE COVENANTS




          The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall and shall cause each of its Subsidiaries to:




          6.1 Financial Statements. Furnish to the Administrative Agent and each Lender:





     (a) as soon as available, but in any event within 90 days after the end of each fiscal
year of the Borrower, a copy of (i) the audited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting forth in each
case in comparative form the figures for the previous year, reported on without a “going
concern” or like qualification or exception, or qualification arising out of the scope of
the audit, by Ernst & Young LLP or other independent certified public accountants of
nationally recognized standing and (ii) the unaudited consolidating balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such year and the related
unaudited consolidating statements of income and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year; and




     (b) as soon as available, but in any event not later than 45 days after the end of each
of the first three quarterly periods of each fiscal year of the Borrower, the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end
of such quarter and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end of such quarter,
setting forth in each case in comparative form the figures for the previous year, certified
by a Responsible Officer as being fairly stated in all material respects (subject to normal
year-end audit adjustments).


All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied (except as approved by such
accountants or officer, as the case may be, and disclosed in reasonable detail therein)
consistently throughout the periods reflected therein and with prior periods.




 









 





42




          6.2 Certificates; Other Information. Furnish to the Administrative Agent and each
Lender (or, in the case of clause (e), to the relevant Lender):





     (a) concurrently with the delivery of any financial statements pursuant to Section 6.1,
(i) a certificate of a Responsible Officer stating that, to the best of each such
Responsible Officer’s knowledge, each Loan Party during such period has observed or
performed all of its covenants and other agreements, and satisfied every condition contained
in this Agreement and the other Loan Documents to which it is a party to be observed,
performed or satisfied by it, and that such Responsible Officer has obtained no knowledge of
any Default or Event of Default except as specified in such certificate and (ii) in the case
of quarterly or annual financial statements, (x) a Compliance Certificate containing all
information and calculations necessary for determining compliance by each Group Member with
the provisions of this Agreement referred to therein as of the last day of the fiscal
quarter or fiscal year of the Borrower, as the case may be, and (y) to the extent not
previously disclosed to the Administrative Agent, (1) a description of any change in the
jurisdiction of organization of any Loan Party, (2) a list of any material Intellectual
Property
acquired by any Loan Party which has been registered with the U.S. Patent and Trademark
Office or the U.S. Copyright Office as of the date of such certificate and (3) a description
of any Person that has become a Group Member, in each case since the date of the most recent
report delivered pursuant to this clause (y) (or, in the case of the first such report so
delivered, since the Closing Date);




     (b) promptly following receipt thereof, copies of (i) any documents described in
Section 101(k) of ERISA that any Group Member or any Commonly Controlled Entity may request
with respect to any Multiemployer Plan and (ii) any notices described in Section 101(l) of
ERISA that any Group Member of any Commonly Controlled Entity may request with respect to
any Multiemployer Plan; provided, that if the Group Members or any Commonly Controlled
Entity has not requested such documents or notices from the administrator or sponsor of the
applicable Multiemployer Plan, then, upon reasonable request of the Administrative Agent,
the Group Members and/or their Commonly Controlled Entities shall promptly make a request
for such documents or notices from such administrator or sponsor and the Borrower shall
provide copies of such documents and notices promptly after receipt thereof; and




     (c) promptly, such additional financial and other information as any Lender may from
time to time reasonably request.



          6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or before maturity
or before they become delinquent, as the case may be, all its material obligations of whatever
nature, except where the amount or validity thereof is currently being contested in good faith by
appropriate proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the relevant Group Member.




          6.4 Maintenance of Existence; Compliance. (a)(i) Preserve, renew and keep in full
force and effect its organizational existence and (ii) take all reasonable action to maintain all
rights, privileges and franchises necessary or desirable in the normal conduct of its business,
except, (A) in each case, as otherwise permitted by Section 7.4 and (B) in the case of clause (ii)
above, to the extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements of Law, except to
the extent that failure to comply therewith could not, in the aggregate, reasonably be expected to
have a Material Adverse Effect.




          6.5 Maintenance of Property; Insurance. (a)  Keep all property useful and necessary
in its business in good working order and condition, ordinary wear and tear excepted and
(b) maintain




 









 





43



with financially sound and reputable insurance companies insurance on all such
property in at least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually insured against in
the same general area by companies engaged in the same or a similar business.




          6.6 Inspection of Property; Books and Records; Discussions. (a) Keep proper books of
records and account in which full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions in relation to its business and
activities and (b) permit representatives of the Administrative Agent or any
Lender to visit and inspect any of its properties and examine and make abstracts from any of
its books and records at any reasonable time and as often as may reasonably be desired and to
discuss the business, operations, properties and financial and other condition of the Group Members
with officers and employees of the Group Members and with their independent certified public
accountants.




          6.7 Notices. Promptly give notice to the Administrative Agent and each Lender of:





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




     (b) any (i) default or event of default under any Contractual Obligation of any Group
Member or (ii) litigation, investigation or proceeding that may exist at any time between
any Group Member and any Governmental Authority, that in either case, if not cured or if
adversely determined, as the case may be, could reasonably be expected to have a Material
Adverse Effect;




     (c) any litigation or proceeding affecting any Group Member (i) that, if adversely
determined, could reasonably be expected to have a Material Adverse Effect or (ii) which
relates to any Loan Document;




     (d) the occurrence of any ERISA Event, as soon as possible and in any event within ten
days after the Borrower knows or has reason to know thereof; and




     (e) any development or event that has had or could reasonably be expected to have a
Material Adverse Effect.


Each notice pursuant to this Section 6.7 shall be accompanied by a statement of a Responsible
Officer setting forth details of the occurrence referred to therein and stating what action the
relevant Group Member proposes to take with respect thereto.




          6.8 Environmental Laws. (a) Comply in all material respects with, and ensure
compliance in all material respects by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply in all material respects with and maintain, and ensure
that all tenants and subtenants obtain and comply in all material respects with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by applicable
Environmental Laws.




          (b) Conduct and complete all investigations, studies, sampling and testing, and all remedial,
removal and other actions required under Environmental Laws and promptly comply in all material
respects with all lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.




          6.9 Additional Collateral, etc. (a) With respect to any property acquired after the
Closing Date by any Group Member (other than (x) any property described in paragraph (b), (c) or
(d) below, (y) any property subject to a Lien expressly permitted by Section 7.3(g) and (z)
property acquired




 









 





44



by any Excluded Foreign Subsidiary) as to which the Administrative Agent, for the
benefit of the Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the
Administrative Agent such amendments to the Amended and Restated Guarantee and Collateral Agreement
or such other documents as the
Administrative Agent deems necessary or advisable to grant to the Administrative Agent, for
the benefit of the Lenders, a security interest in such property and (ii) take all actions
necessary or advisable to grant to the Administrative Agent, for the benefit of the Lenders, a
perfected first priority security interest in such property, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by the Amended and
Restated Guarantee and Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent.




          (b) With respect to any fee interest in any real property having a value (together with
improvements thereof) of at least $1,000,000 acquired after the Closing Date by any Group Member
(other than (x) any such real property subject to a Lien expressly permitted by Section 7.3(g) and
(z) real property acquired by any Excluded Foreign Subsidiary), promptly (i) execute and deliver a
first priority Mortgage, in favor of the Administrative Agent, for the benefit of the Lenders,
covering such real property, (ii) if requested by the Administrative Agent, provide the Lenders
with (x) title and extended coverage insurance covering such real property in an amount at least
equal to the purchase price of such real property (or such lesser amount as shall be reasonably
specified by the Administrative Agent) as well as a current ALTA survey thereof, together with a
surveyor’s certificate, (y) any consents or estoppels reasonably deemed necessary or advisable by
the Administrative Agent in connection with such Mortgage and (z) if such real property is located
in an area that has been identified by the Secretary of Housing and Urban Development as an area
having special flood hazards, (A) a policy of flood insurance that covers such real property and is
written in an amount not less than the outstanding principal amount of the indebtedness secured by
the Mortgage on such real property that is reasonably allocable to such real property or the
maximum limit of coverage made available with respect to such real property under the National
Flood Insurance Act of 1968, whichever is less and (B) confirmation that the Borrower has received
the notice required pursuant to Section 208(e)(3) of Regulation H of the Board, each of the
foregoing in form and substance reasonably satisfactory to the Administrative Agent and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal opinions relating
to the matters described above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.




          (c) With respect to any new Subsidiary (other than an Excluded Foreign Subsidiary) created or
acquired after the Closing Date by any Group Member (which, for the purposes of this paragraph (c),
shall include any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary), promptly
(i) execute and deliver to the Administrative Agent such amendments to the Amended and Restated
Guarantee and Collateral Agreement as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such new Subsidiary that is owned by any Group Member,
(ii) deliver to the Administrative Agent the certificates representing such Capital Stock, together
with undated stock powers, in blank, executed and delivered by a duly authorized officer of the
relevant Group Member, (iii) cause such new Subsidiary (A) to become a party to the Amended and
Restated Guarantee and Collateral Agreement, (B) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected first priority
security interest in the Collateral described in the Amended and Restated Guarantee and Collateral
Agreement with respect to such new Subsidiary, including the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Amended and Restated Guarantee
and Collateral Agreement or by law or as may be requested by the Administrative Agent and (C) to
deliver to the Administrative Agent a certificate of such Subsidiary, substantially in the form of
Exhibit C, with appropriate insertions and attachments, and (iv) if requested by the Administrative
Agent, deliver to the Administrative Agent legal opinions relating to the




 









 





45



matters described above,
which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.




          (d) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing
Date by any Group Member (other than by any Group Member that is an Excluded Foreign Subsidiary),
promptly (i) execute and deliver to the Administrative Agent such amendments to the Amended and
Restated Guarantee and Collateral Agreement as the Administrative Agent deems necessary or
advisable to grant to the Administrative Agent, for the benefit of the Lenders, a perfected first
priority security interest in the Capital Stock of such new Subsidiary that is owned by any such
Group Member (provided that in no event shall more than 66% of the total outstanding voting Capital
Stock of any such new Subsidiary be required to be so pledged), (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated stock powers, in
blank, executed and delivered by a duly authorized officer of the relevant Group Member, and take
such other action as may be necessary or, in the opinion of the Administrative Agent, desirable to
perfect the Administrative Agent’s security interest therein, and (iii) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.




          (e) With respect to any Subsidiary listed on Schedule 6.9(e), if such Subsidiary has
not been dissolved on or prior to March 31, 2008, promptly cause such Subsidiary (A) to become a
party to the Amended and Restated Guarantee and Collateral Agreement, (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of the Lenders a
perfected first priority security interest in the Collateral described in the Amended and Restated
Guarantee and Collateral Agreement with respect to such Subsidiary, including the filing of Uniform
Commercial Code financing statements in such jurisdictions as may be required by the Amended and
Restated Guarantee and Collateral Agreement or by law or as may be requested by the Administrative
Agent, (C) to deliver to the Administrative Agent a certificate of such Subsidiary, substantially
in the form of Exhibit C, with appropriate insertions and attachments, and (D) if requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions relating to the matters
described above, which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.




     SECTION 7. NEGATIVE COVENANTS



          The Borrower hereby agrees that, so long as the Commitments remain in effect, any Letter of
Credit remains outstanding or any Loan or other amount is owing to any Lender or the Administrative
Agent hereunder, the Borrower shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly:




          7.1 Financial Condition Covenants.




          (a) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as at the
last day of any period of four consecutive fiscal quarters of the Borrower to exceed 3.00 to 1.00.




          (b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated Fixed Charge
Coverage Ratio for any period of four consecutive fiscal quarters of the Borrower to be less than
1.20 to 1.00.




          (c) Funded Debt to Total Capitalization Ratio. Permit Funded Debt of the Borrower and
its Subsidiaries to exceed 45% of the sum of (i) Funded Debt of the Borrower and its Subsidiaries
plus (ii)
the consolidated minority interest obligations shown on the consolidated balance sheet of the
Borrower and its Subsidiaries plus (iii) the Consolidated Net Worth of the Borrower and its
Subsidiaries.




 









 





46




          7.2 Indebtedness. Create, issue, incur, assume, become liable in respect of or suffer
to exist any Indebtedness, except:





     (a) Indebtedness of any Loan Party pursuant to any Loan Document (including after any
increase of the Revolving Commitments pursuant to Section 2.4(c));




     (b) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary Guarantor to
the Borrower or any other Subsidiary;




     (c) Guarantee Obligations incurred in the ordinary course of business by the Borrower
or any of its Subsidiaries of obligations of any Subsidiary Guarantor to the extent such
obligations are permitted to be incurred hereunder;




     (d) Indebtedness outstanding on the date hereof and listed on Schedule 7.2(d)
and any refinancings, refundings, renewals or extensions thereof (without increasing, or
shortening the maturity of, the principal amount thereof);




     (e) Indebtedness (including, without limitation, Capital Lease Obligations) secured by
Liens permitted by Section 7.3(g) in an aggregate principal amount not to exceed $10,000,000
at any one time outstanding;




     (f) Indebtedness of any Foreign Subsidiary (i) to any Loan Party, provided that the
loan or advance is permitted by Section 7.7 or (ii) to any other Foreign Subsidiary;




     (g) unsecured Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount (for the Borrower and all Subsidiaries) not to exceed $200,000,000 at any
one time outstanding; provided that (i) after giving effect to such Indebtedness, on
a pro forma basis, the Borrower is in compliance with Section 7.1 as of the last day of the
immediately preceding fiscal quarter for which financial statements have been delivered
pursuant to Section 6.1 and (ii) such Indebtedness has a final maturity date that is at
least 91 days after the later of the Revolving Termination Date and the final maturity date
of the Term Loans;




     (h) Indebtedness of any Foreign Subsidiary to any Person other than the Borrower or any
Subsidiary in an aggregate principal amount not to exceed $10,000,000 at any time
outstanding; provided that such Indebtedness is not guaranteed by the Borrower or
any other Loan Party; and




     (i) additional Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount (for the Borrower and all Subsidiaries) not to exceed $10,000,000 at any
one time outstanding.



          7.3 Liens. Create, incur, assume or suffer to exist any Lien upon any of its property
(other than treasury stock of the Borrower to the extent Regulation U would be violated by
restrictions under this Section 7.3), whether now owned or hereafter acquired, except:





     (a) Liens for taxes not yet due or that are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect thereto are
maintained on the books of the Borrower or its Subsidiaries, as the case may be, in
conformity with GAAP;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business that are not overdue for a period of more
than 30 days or that are being contested in good faith by appropriate proceedings;



 









 





47





     (c) pledges or deposits in connection with workers’ compensation, unemployment
insurance and other social security legislation;




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




     (e) easements, rights-of-way, restrictions and other similar encumbrances incurred in
the ordinary course of business that, in the aggregate, are not substantial in amount and
that 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 Borrower or any of its
Subsidiaries;




     (f) Liens in existence on the date hereof listed on Schedule 7.3(f), securing
Indebtedness permitted by Section 7.2(d), provided that no such Lien is spread to
cover any additional property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;




     (g) Liens securing Indebtedness of the Borrower or any other Subsidiary incurred
pursuant to Section 7.2(e) to finance the acquisition of fixed or capital assets,
provided that (i) such Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;




     (h) Liens created pursuant to the Security Documents;




     (i) any interest or title of a lessor under any lease entered into by the Borrower or
any other Subsidiary in the ordinary course of its business and covering only the assets so
leased;




     (j) Lien securing Indebtedness permitted by Section 7.2(h); provided that such
Liens only attach to the property of Foreign Subsidiaries; and




     (k) Liens not otherwise permitted by this Section so long as neither (i) the aggregate
outstanding principal amount of the obligations secured thereby nor (ii) the aggregate fair
market value (determined as of the date such Lien is incurred) of the assets subject thereto
exceeds (as to the Borrower and all Subsidiaries) $10,000,000 at any one time.



          7.4 Fundamental Changes. Enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution), or Dispose of all
or substantially all of its property or business, except that:





     (a) any Subsidiary of the Borrower may be merged or consolidated with or into the
Borrower (provided that the Borrower shall be the continuing or surviving
corporation) or with or into any Subsidiary Guarantor (provided that the Subsidiary
Guarantor shall be the continuing or surviving corporation);




     (b) any Subsidiary of the Borrower may Dispose of any or all of its assets (i) to the
Borrower or any Subsidiary Guarantor (upon voluntary liquidation or otherwise) or (ii)
pursuant to a Disposition permitted by Section 7.5;




     (c) any Investment expressly permitted by Section 7.7 may be structured as a merger,
consolidation or amalgamation; and



 









 





48





     (d) any Loan Party (other than the Borrower) may liquidate (i) if the Board of
Directors of the Borrower determines in good faith that such liquidation is in the best
interest of the Borrower and is not materially disadvantageous to the Lenders and if any
material assets of such Loan Party are transferred to another Loan Party or (ii) if such
Loan Party’s material assets have been Disposed of prior to Closing Date or are Disposed of
in a Disposition permitted hereunder.



          7.5 Disposition of Property. Dispose of any of its property (other than treasury
stock of the Borrower to the extent Regulation U would be violated by restrictions under this
Section 7.5), whether now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary’s Capital Stock to any Person, except:





     (a) the Disposition of obsolete or worn out property or equipment no longer used or
useful in the business of the Group Members, in each case in the ordinary course of
business;




     (b) the sale of inventory (including wooden and composite mats removed from the
Company’s rental fleet and sold as used mats) in the ordinary course of business;




     (c) Dispositions permitted by clause (i) of Section 7.4(b);




     (d) the sale or issuance of any Subsidiary’s Capital Stock to the Borrower or any
Subsidiary Guarantor;




     (e) the Environmental Sale and the Universal Sale; and




     (f) the Disposition of other property (including, but not limited to, the Capital Stock
of any Subsidiary) having a book value not to exceed $5,000,000 in the aggregate for any
fiscal year of the Borrower.



          7.6 Restricted Payments. Declare or pay any dividend (other than dividends payable
solely in common stock of the Person making such dividend) on, or make any payment on account of,
or set apart assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of any Group Member, whether now
or hereafter outstanding, or make any other distribution in respect thereof, either directly or
indirectly, whether in cash or property or in obligations of any Group Member (collectively,
“Restricted Payments”), except that:





     (a) any Subsidiary may make Restricted Payments to the Borrower or any Wholly Owned
Subsidiary Guarantor; and




     (b) the Borrower may repurchase or redeem its Capital Stock in an aggregate amount not
in excess of $50,000,000 (“Permitted Capital Stock Repurchase”); provided
that (i) after giving effect to such Permitted Capital Stock Repurchase, on a pro forma
basis, the Borrower is in compliance with Section 7.1 as of the last day of the immediately
preceding fiscal quarter for which financial statements have been delivered pursuant to
Section 6.1 and (ii) no Default or Event of Default has occurred and is continuing or would
result from such Permitted Capital Stock Repurchase.



          7.7 Investments. Make any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or
other debt securities of, or any assets constituting a business unit of, or make any other
investment in, any Person (all of the foregoing, “Investments”), except:




 









 





49





     (a) extensions of trade credit in the ordinary course of business;




     (b) investments in Cash Equivalents;




     (c) Guarantee Obligations permitted by Section 7.2;




     (d) loans and advances to employees of any Group Member in the ordinary course of
business (including for travel, entertainment and relocation expenses) in an aggregate
amount for all Group Members not to exceed $2,500,000 at any one time outstanding;




     (e) Investments in assets useful in the business of the Borrower and its Subsidiaries
made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment
Deferred Amount;




     (f) intercompany Investments by any Group Member in the Borrower or any Person that,
prior to such investment, is a Wholly Owned Subsidiary Guarantor;




     (g) Permitted Acquisitions and the formation of Wholly Owned Subsidiaries of the
Borrower in connection with Permitted Acquisitions; and




     (h) in addition to Investments otherwise expressly permitted by this Section,
Investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at
cost) together with the aggregate consideration for Permitted Acquisitions (without
duplication) not to exceed (i) in the case of Domestic Investments and Domestic Permitted
Acquisitions, 20% of the book value of Consolidated Tangible Assets of the Borrower as of
the last day of the immediately preceding fiscal quarter for which financial statements have
been delivered pursuant to Section 6.1 and (ii) in the case of Foreign Investments and
Foreign Permitted Acquisitions, $50,000,000, in each case during the term of this Agreement.



          7.8 Transactions with Affiliates. Enter into any transaction, including any purchase,
sale, lease or exchange of property, the rendering of any service or the payment of any management,
advisory or similar fees, with any
Affiliate (other than the Borrower or any Subsidiary Guarantor) unless such transaction is
(a) otherwise permitted under this Agreement, (b) in the ordinary course of business of the
relevant Group Member, and (c) upon fair and reasonable terms no less favorable to the relevant
Group Member than it would obtain in a comparable arm’s length transaction with a Person that is
not an Affiliate; provided, however, that the foregoing limitations shall not apply
to transactions between or among Subsidiaries if none of such Subsidiaries are Subsidiary
Guarantors.




          7.9 Sales and Leasebacks. Enter into any arrangement with any Person providing for
the leasing by any Group Member of real or personal property that has been or is to be sold or
transferred by such Group Member to such Person or to any other Person to whom funds have been or
are to be advanced by such Person on the security of such property or rental obligations of such
Group Member except with respect to personal property Disposed of in a Disposition permitted by
Section 7.5.




          7.10 Swap Agreements.  Enter into any Swap Agreement, except (a) Swap Agreements
entered into to hedge or mitigate risks to which the Borrower or any Subsidiary has actual exposure
(other than those in respect of Capital Stock) and (b) Swap Agreements entered into in order to
effectively cap, collar or exchange interest rates (from fixed to floating rates, from floating
rates to fixed rates, from one floating rate to another floating rate or otherwise) with respect to
any interest-bearing liability or investment of the Borrower or any Subsidiary.




 









 





50




          7.11 Changes in Fiscal Periods. Permit the fiscal year of the Borrower to end on a
day other than December 31 or change the Borrower’s method of determining fiscal quarters.




          7.12 Negative Pledge Clauses. Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of any Group Member to create, incur, assume or
suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter
acquired, to secure its obligations under the Loan Documents to which it is a party other than (a)
this Agreement and the other Loan Documents and (b) any agreements governing any purchase money
Liens or Capital Lease Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby).




          7.13 Clauses Restricting Subsidiary Distributions. Enter into or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any Subsidiary of the
Borrower to (a) make Restricted Payments in respect of any Capital Stock of such Subsidiary held
by, or pay any Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b) make
loans or advances to, or other Investments in, the Borrower or any other Subsidiary of the Borrower
or (c) transfer any of its assets to the Borrower or any other Subsidiary of the Borrower, except
for such encumbrances or restrictions existing under or by reason of (i) any restrictions existing
under the Loan Documents and (ii) any restrictions with respect to a Subsidiary imposed pursuant to
an agreement that has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary.




          7.14 Lines of Business. Enter into any business, either directly or through any
Subsidiary, except for those businesses in which the Borrower and its Subsidiaries are engaged on
the date of this Agreement or that are reasonably related thereto.




SECTION 8. EVENTS OF DEFAULT




          If any of the following events shall occur and be continuing:





     (a) the Borrower shall fail to pay any principal of any Loan or Reimbursement
Obligation when due in accordance with the terms hereof; or the Borrower shall fail to pay
any interest on any Loan or Reimbursement Obligation, or any other amount payable hereunder
or under any other Loan Document, within five days after any such interest or other amount
becomes due in accordance with the terms hereof; or




     (b) any representation or warranty made or deemed made by any Loan Party herein or in
any other Loan Document or that is contained in any certificate, document or financial or
other statement furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been inaccurate in any material respect on
or as of the date made or deemed made; or




     (c) any Loan Party shall default in the observance or performance of any agreement
contained in clause (i) or (ii) of Section 6.4(a) (with respect to the Borrower only),
Section 6.7(a) or Section 7 of this Agreement or Sections 5.5 and 5.7(b) of the Amended and
Restated Guarantee and Collateral Agreement; or




     (d) any Loan Party shall default in the observance or performance of any other
agreement contained in this Agreement or any other Loan Document (other than as provided in
paragraphs (a) through (c) of this Section), and such default shall continue unremedied for
a




 












 



51




period of 30 days after notice to the Borrower from the Administrative Agent or the
Required Lenders; or




     (e) any Group Member shall (i) default in making any payment of any principal of any
Indebtedness (including any Guarantee Obligation, but excluding the Loans) on the scheduled
or original due date with respect thereto; or (ii) default in making any payment of any
interest on any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii) default in the
observance or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which default or
other event or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to its stated
maturity or (in the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (e) shall not at any time constitute an Event of
Default unless, at such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of which exceeds in
the aggregate $10,000,000 and any applicable grace periods, if any, shall have expired; or




     (f) (i) any Group Member shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment of a receiver,
trustee, custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Group Member shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against any Group Member any
case, proceeding or other action of a nature referred to in clause (i) above that (A)
results in the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed or undischarged for a period of 60 days; or (iii) there shall be
commenced against any Group Member any case, proceeding or other action seeking issuance of
a warrant of attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) any Group Member shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth
in clause (i), (ii), or (iii) above; or (v) any Group Member shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as they become due;
or




     (g) (i) an ERISA Event shall have occurred, (ii) a trustee shall be appointed by a
United States district court to administer any Pension Plan, (iii) the PBGC shall institute
proceedings to terminate any Pension Plan(s), or (iv) any Group member or any Commonly
Controlled Entity shall have been notified by the sponsor of a Multiemployer Plan that it
has incurred or will be assessed Withdrawal Liability to such Multiemployer Plan and such
entity does not have reasonable grounds for contesting such Withdrawal Liability or is not
contesting such Withdrawal Liability in a timely and appropriate manner; and in each case in
clauses (i) through (iv) above, such event or condition, in the opinion of the Lender, when
taken together with all other such events or conditions, if any, could, in the sole judgment
of the Required Lenders, reasonably be expected to result in a Material Adverse Effect; or









 



52



     (h) one or more judgments or decrees shall be entered against any Group Member
involving in the aggregate a liability (not paid or fully covered by insurance as to which
the relevant insurance company has acknowledged coverage) of $10,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or




     (i) any of the Security Documents shall cease, for any reason, to be in full force and
effect, or any Loan Party shall so assert, or any Lien on a material portion of the
Collateral created by any of the Security Documents shall cease to be enforceable and of the
same effect and priority purported to be created thereby; or




     (j) the guarantee contained in Section 2 of the Amended and Restated Guarantee and
Collateral Agreement shall cease, for any reason, to be in full force and effect or any Loan
Party shall so assert; or




     (k) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) shall become, or
obtain rights (whether by means or warrants, options or otherwise) to become, the
“beneficial owner” (as defined in Rules 13(d)-3 and 13(d) 5 under the Exchange Act),
directly or indirectly, of more than 30% of the outstanding common stock of the Borrower;


then, and in any such event, (A) if such event is an Event of Default specified in clause (i) or
(ii) of paragraph (f) above with respect to the Borrower, automatically the Commitments shall
immediately terminate and the Loans (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be taken: (i) with the
consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, the Administrative Agent shall, by notice to the Borrower declare the Revolving
Commitments to be terminated forthwith, whereupon the Revolving Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans (with accrued interest thereon) and all other amounts owing under this Agreement
and the other Loan Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall immediately become due and
payable. With respect to all Letters of Credit with respect to which presentment for honor shall
not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts held in such
cash collateral account shall be applied by the Administrative Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other obligations of the
Borrower hereunder and under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned to the Borrower (or
such other Person as may be lawfully entitled thereto). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are hereby expressly waived
by the Borrower.










 



53


SECTION 9. THE AGENTS




          9.1 Appointment. Each Lender hereby irrevocably designates and appoints the
Administrative Agent as the agent of such Lender under this Agreement and the other Loan Documents,
and each such Lender irrevocably authorizes the Administrative Agent, in such capacity, to take
such action on its behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to the Administrative
Agent by the terms of this Agreement and the other Loan Documents, together with such other powers
as are reasonably incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement, the Administrative Agent shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Administrative Agent.




          9.2 Delegation of Duties. The Administrative Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.




          9.3 Exculpatory Provisions. Neither any Agent nor any of their respective officers,
directors, employees, agents, advisors, attorneys-in-fact or affiliates shall be (i) liable for any
action lawfully taken or omitted to be taken by it or such Person under or in connection with this
Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a
final and nonappealable decision of a court of competent jurisdiction to have resulted from its or
such Person’s own gross negligence or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or warranties made by any Loan Party
or any officer thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in, or received by the
Agents under or in connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any Lender to ascertain
or to inquire as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.




          9.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to
rely, and shall be fully protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy or email message, statement, order or other
document or conversation believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrower), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for
all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may be incurred by it by
reason of taking or continuing to take any such action. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this Agreement and the
other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by
this










 



54

Agreement, all Lenders), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the Loans.




          9.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has
received notice from a Lender or the Borrower referring to this Agreement, describing such Default
or Event of Default and stating that such notice is a “notice of default”. In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to such Default or Event
of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interests of the Lenders.




          9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly acknowledges that
neither the Agents nor any of their respective officers, directors, employees, agents, advisors,
attorneys-in-fact or affiliates have made any representations or warranties to it and that no act
by any Agent hereafter taken, including any review of the affairs of a Loan Party or any affiliate
of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any
Lender. Each Lender represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their affiliates and
made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon any Agent or any other Lender, and
based on such documents and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking action under this
Agreement and the other Loan Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder,
the Administrative Agent shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party or any affiliate of a Loan Party that
may come into the possession of the Administrative Agent or any of its officers, directors,
employees, agents, advisors, attorneys-in-fact or affiliates.




          9.7 Indemnification. The Lenders agree to indemnify each Agent and its officers,
directors, employees, affiliates, agents, advisors and controlling persons (each, an “Agent
Indemnitee”) (to the extent not reimbursed by the Borrower and without limiting the obligation
of the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in
effect on the date on which indemnification is sought under this Section (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the Loans shall have
been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior
to such date), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted
against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or any action taken or omitted by
such Agent Indemnitee under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a










 



55

final and nonappealable decision of a court of competent jurisdiction to have resulted from such
Agent Indemnitee’s gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.




          9.8 Agent in Its Individual Capacity. Each Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of business with any Loan Party as though
such Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of Credit issued or
participated in by it, each Agent shall have the same rights and powers under this Agreement and
the other Loan Documents as any Lender and may exercise the same as though it were not an Agent,
and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.




          9.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Borrower. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(a) or Section 8(f) with respect
to the Borrower shall have occurred and be continuing) be subject to approval by the Borrower
(which approval shall not be unreasonably withheld or delayed), whereupon such successor agent
shall succeed to the rights, powers and duties of the Administrative Agent, and the term
“Administrative Agent” shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no
successor agent has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor agent as provided for above. After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 9 and of
Section 10.5 shall continue to inure to its benefit.




          9.10 Documentation Agent and Syndication Agent. Neither the Documentation Agent nor
the Syndication Agent shall have any duties or responsibilities hereunder in its capacity as such.




SECTION 10. MISCELLANEOUS




          10.1 Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time, (a) enter into
written amendments, supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on
such terms and conditions as the Required Lenders or the Administrative Agent, as the case may be,
may specify in such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such waiver and no such amendment, supplement or modification shall (i)
forgive the principal amount or extend the final scheduled date of maturity of any Loan, extend the
scheduled date of any amortization payment in respect of any Term Loan, reduce the stated rate of
any interest or fee payable hereunder (except (x) in connection with the waiver of applicability of
any post-default increase in interest rates (which waiver shall be effective with the consent of
the Majority Facility
Lenders of each adversely affected Facility) and (y) that any










 



56

amendment or modification of
defined terms used in the financial covenants in this Agreement shall not constitute a reduction in
the rate of interest or fees for purposes of this clause (i)) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any Lender’s Revolving
Commitment, in each case without the written consent of each Lender directly affected thereby; (ii)
eliminate or reduce the voting rights of any Lender under this Section 10.1 without the written
consent of such Lender; (iii) reduce any percentage specified in the definition of Required
Lenders, consent to the assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement and the other Loan Documents, release all or substantially all of the
Collateral or release all or substantially all of the Subsidiary Guarantors from their obligations
under the Amended and Restated Guarantee and Collateral Agreement, in each case without the written
consent of all Lenders; (iv) amend, modify or waive any provision of Section 2.15 without the
written consent of each of the Lenders directly affected thereby; (v) reduce the percentage
specified in the definition of Majority Facility Lenders with respect to any Facility without the
written consent of all Lenders under such Facility; (vi) amend, modify or waive any provision of
Section 9 or any other provision of any Loan Document that affects the Administrative Agent without
the written consent of the Administrative Agent; or (vii) amend, modify or waive any provision of
Section 3 without the written consent of the Issuing Lender. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders and shall be
binding upon the Loan Parties, the Lenders, the Administrative Agent and all future holders of the
Loans. In the case of any waiver, the Loan Parties, the Lenders and the Administrative Agent shall
be restored to their former position and rights hereunder and under the other Loan Documents, and
any Default or Event of Default waived shall be deemed to be cured and not continuing; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or impair any right
consequent thereon.




          In addition, notwithstanding the foregoing, this Agreement may be amended with the written
consent of the Administrative Agent, the Borrower and the Lenders providing the relevant
Replacement Term Loans (as defined below) to permit the refinancing, replacement or modification of
all outstanding Term Loans (“Replaced Term Loans”) with a replacement term loan tranche
hereunder (“Replacement Term Loans”), provided that (a) the aggregate principal
amount of such Replacement Term Loans shall not exceed the aggregate principal amount of such
Replaced Term Loans, (b) the Applicable Margin for such Replacement Term Loans shall not be higher
than the Applicable Margin for such Replaced Term Loans and (c) the weighted average life to
maturity of such Replacement Term Loans shall not be shorter than the weighted average life to
maturity of such Replaced Term Loans at the time of such refinancing.




          10.2 Notices. All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing (including by telecopy), and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered, or three Business
Days after being deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrower and the Administrative Agent, and as set
forth in an administrative questionnaire delivered to the Administrative Agent in the case of the
Lenders, or to such other address as may be hereafter notified by the respective parties hereto:




	 	 	 
	     Borrower:

	 	Newpark Resources, Inc.
	 

	 	2700 Research Forest Dr., Suite 100
	 

	 	The Woodlands, TX 77381
	 

	 	Attention: Treasurer
	 

	 	Telecopy: (281) 362-6801
	 

	 	Telephone: (281) 362-6800












 



57


	 	 	 
	     Administrative Agent:

	 	JPMorgan Chase Bank, N.A.
	 

	 	Loan and Agency Services
	 

	 	10 South Dearborn, 19th Floor
	 

	 	Chicago, IL 60603
	 

	 	Attention: Samantha Browley
	 

	 	Telecopy: (312) 732-4864
	 

	 	Telephone: (312) 732-2613
	 

	 	Email: samantha.x.allen.browley@jpmchase.com
	 
	 	 
	 

	 	with a copy to:
	 

	 	JPMorgan Chase Bank, N.A.
	 

	 	201 St. Charles Avenue, 28th Floor
	 

	 	New Orleans, LA 70170
	 

	 	Attention: Charlie Freel
	 

	 	Telecopy: (504) 623-1738
	 

	 	Telephone: (504) 623-1638
	 

	 	Email: charlie.freel@chase.com





provided that any notice, request or demand to or upon the Administrative Agent or the
Lenders shall not be effective until received.




          Notices and other communications to the Lenders hereunder may be delivered or furnished by
electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Section 2 unless
otherwise agreed by the Administrative Agent and the applicable Lender. 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.




          10.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents 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.




          10.4 Survival of Representations and Warranties. All representations and warranties
made hereunder, in the other Loan Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the execution and delivery of this
Agreement and the making of the Loans and other extensions of credit hereunder.




          10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the
Administrative Agent for all its reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation
and execution of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and thereby, including the
reasonable fees and disbursements of counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted to the Borrower at
least three (3) Business Days prior to the Closing Date (in the case of amounts to be paid on the
Closing Date) and from time to time thereafter on a quarterly basis or such other periodic basis as










 



58

the Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender and the
Administrative Agent for all its out-of-pocket costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan Documents and any
such other documents, including the fees and disbursements of counsel (including the allocated fees
and expenses of in-house counsel) to each Lender and of counsel to the Administrative Agent, (c) to
pay, indemnify, and hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or resulting from any delay
in paying, stamp, excise and other taxes, if any, that may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of, or any waiver or
consent under or in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender and the Administrative Agent and their
respective officers, directors, employees, affiliates, agents, advisors and controlling persons
(each, an “Indemnitee”) harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits or reasonable costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan Documents and any
such other documents, including any of the foregoing relating to the use of proceeds of the Loans,
the issuance of or participation in Letters of Credit or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of any Group Member or any of
the Properties and the reasonable fees and expenses of legal counsel in connection with claims,
actions or proceedings by any Indemnitee against any Loan Party under any Loan Document (all the
foregoing in this clause (d), collectively, the “Indemnified Liabilities”),
provided, that the Borrower shall have no obligation hereunder to any Indemnitee with
respect to Indemnified Liabilities to the extent such Indemnified Liabilities are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Indemnitee. Without limiting the foregoing, and to the
extent permitted by applicable law, the Borrower agrees not to assert and to cause its Subsidiaries
not to assert, and hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or nature, under or related
to Environmental Laws, that any of them might have by statute or otherwise against any Indemnitee.
All amounts due under this Section 10.5 shall be payable not later than 30 days after written
demand therefor. Statements payable by the Borrower pursuant to this Section 10.5 shall be
submitted to the Borrower in accordance with Section 10.2. The agreements in this Section 10.5
shall survive repayment of the Loans and all other amounts payable hereunder.




          10.6 Successors and Assigns; Participations and Assignments. (a) 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 (including any affiliate of the Issuing Lender that issues
any Letter of Credit), except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section.




          (b)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign
to one or more assignees (each, an “Assignee”) all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it) with the prior written consent of:





     (A) the Borrower (such consent not to be unreasonably withheld), provided that
no consent of the Borrower shall be required for an assignment to a Lender, an affiliate of
a Lender,









 



59



an Approved Fund (as defined below) or, if an Event of Default has occurred and is
continuing, any other Person; and




     (B) the Administrative Agent, provided that no consent of the Administrative
Agent shall be required for an assignment of all or any portion of a Term Loan to a Lender,
an affiliate of a Lender or an Approved Fund.




     (ii) Assignments shall be subject to the following additional conditions:




     (A) except in the case of an assignment to a Lender, an affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitments or Loans under any Facility, the amount of the Commitments or 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)
shall not be less than $5,000,000 (or, in the case of the Term Facility, $1,000,000) unless
each of the Borrower and the Administrative Agent otherwise consent, provided that
(1) no such consent of the Borrower shall be required if an Event of Default has occurred
and is continuing and (2) such amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;




     (B) (1) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500
and (2) the assigning Lender shall have paid in full any amounts owing by it to the
Administrative Agent; and




     (C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an administrative questionnaire in which the Assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their
respective securities) will be made available and who may receive such information in
accordance with the assignee’s compliance procedures and applicable laws, including Federal
and state securities laws.



          For the purposes of this Section 10.6, “Approved Fund” means any Person (other than a
natural person) that is engaged in making, purchasing, holding or investing in bank loans and
similar extensions of credit in the ordinary course of its business and 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.




          (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto 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 2.16, 2.17, 2.18 and
10.5). Any assignment or transfer by a Lender of rights or obligations under this Agreement that
does not comply with this Section 10.6 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 paragraph (c) of
this Section.










 



60




          (iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall
maintain at one of its offices 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 amount 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, the Issuing Lender and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.




          (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an Assignee, the Assignee’s completed administrative questionnaire (unless the Assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by paragraph (b) of this
Section, the Administrative Agent shall accept such Assignment and Assumption and record the
information contained therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in this paragraph.




          (c)(i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement 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 may provide that
such Lender will not, without the consent of the Participant, agree to any amendment, modification
or waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the
proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.16, 2.17 and 2.18 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided such Participant shall be subject to Section 10.7(a) as though it
were a Lender.




          (ii) A Participant shall not be entitled to receive any greater payment under Section 2.16 or
2.17 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. Any Participant that is a Non-U.S. Lender shall
not be entitled to the benefits of Section 2.17 unless such Participant complies with Section
2.17(d).




          (d) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or Assignee for such Lender as a party hereto.










 



61




          (e) The Borrower, upon receipt of written notice from the relevant Lender, agrees to issue
Notes to any Lender requiring Notes to facilitate transactions of the type described in paragraph
(d) above.




          (f) Notwithstanding the foregoing, any Conduit Lender may assign any or all of the Loans it
may have funded hereunder to its designating Lender without the consent of the Borrower or the
Administrative Agent and without regard to the limitations set forth in Section 10.6(b). The
Borrower, each Lender and the Administrative Agent hereby confirms that it will not institute
against a Conduit Lender or join any other Person in instituting against a Conduit Lender any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding under any state
bankruptcy or similar law, for one year and one day after the payment in full of the latest
maturing commercial paper note issued by such Conduit Lender; provided, however, that each
Lender designating any Conduit Lender hereby agrees to indemnify, save and hold harmless each other
party hereto for any loss, cost, damage or expense arising out of its inability to institute such a
proceeding against such Conduit Lender during such period of forbearance.




          10.7 Adjustments; Set-off. (a) Except to the extent that this Agreement, any other
Loan Document or a court order expressly provides for payments to be allocated to a particular
Lender or to the Lenders under a particular Facility, if any Lender (a “Benefitted Lender”)
shall receive any payment of all or part of the Obligations owing to it (other than in connection
with an assignment made pursuant to Section 10.6), or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of the Obligations owing to such other
Lender, such Benefitted Lender shall purchase for cash from the other Lenders a participating
interest in such portion of the Obligations owing to each such other Lender, or shall provide such
other Lenders with the benefits of any such collateral, as shall be necessary to cause such
Benefitted Lender to share the excess payment or benefits of such collateral ratably with each of
the Lenders; provided, however, that if all or any portion of such excess payment
or benefits is thereafter recovered from such Benefitted Lender, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such recovery, but without interest.




          (b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any Obligations becoming due and payable
by the Borrower (whether at the stated maturity, by acceleration or otherwise), to apply to the
payment of such Obligations, by setoff or otherwise, any and all deposits (general or special, time
or demand, provisional or final), in any currency, and any other credits, indebtedness or claims,
in any currency, in each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender, any affiliate thereof or any of their
respective branches or agencies to or for the credit or the account of the Borrower. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any such application made
by such Lender, provided that the failure to give such notice shall not affect the validity
of such application.




          10.8 Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any
number of separate counterparts, and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. Delivery of an executed signature page of this Agreement
by facsimile or email transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.




          10.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such










 



62

prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.




          10.10 Integration. This Agreement and the other Loan Documents represent the entire
agreement of the Borrower, the Administrative Agent and the Lenders with respect to the subject
matter hereof and thereof, and there are no promises, undertakings, representations or warranties
by the Administrative Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.




          10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK.




          10.12 Submission To Jurisdiction; Waivers. To the extent permitted by applicable law,
the Borrower hereby irrevocably and unconditionally:





     (a) submits for itself and its property in any legal action or proceeding relating to
this Agreement and the other Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of
the courts of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;




     (b) consents that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same;




     (c) agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of
mail), postage prepaid, to the Borrower, as the case may be at its address set forth in
Section 10.2 or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;




     (d) agrees that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to sue in any other jurisdiction;
and




     (e) waives, to the maximum extent not prohibited by law, any right it may have to claim
or recover in any legal action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.




     10.13 Acknowledgements. The Borrower hereby acknowledges that:




     (a) it has been advised by counsel in the negotiation, execution and delivery of this
Agreement and the other Loan Documents;




     (b) neither the Administrative Agent nor any Lender has any fiduciary relationship with
or duty to the Borrower arising out of or in connection with this Agreement or any of the
other Loan Documents, and the relationship between Administrative Agent and Lenders, on one
hand, and the Borrower, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and









 



63



     (c) no joint venture is created hereby or by the other Loan Documents or otherwise
exists by virtue of the transactions contemplated hereby among the Lenders or among the
Borrower and the Lenders.



          10.14 Releases of Guarantees and Liens. (a) Notwithstanding anything to the contrary
contained herein or in any other Loan Document, the Administrative Agent is hereby irrevocably
authorized by each Lender (without requirement of notice to or consent of any Lender except as
expressly required by Section 10.1) to take any action requested by the Borrower having the effect
of releasing any Collateral or guarantee obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has been consented to
in accordance with Section 10.1 or (ii) under the circumstances described in paragraph (b) below.




          (b) At such time as the Loans, the Reimbursement Obligations and the other obligations under
the Loan Documents (other than obligations under or in respect of Swap Agreements) shall have been
paid in full in cash, the Commitments have been terminated and no Letters of Credit shall be
outstanding, the Collateral shall be released from the Liens created by the Security Documents, and
the Security Documents and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Loan Party under the Security Documents shall
terminate, all without delivery of any instrument or performance of any act by any Person.




          10.15 Confidentiality. Each of the Administrative Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party, the Administrative Agent
or any Lender pursuant to or in connection with this Agreement that is designated by the provider
thereof as confidential; provided that nothing herein shall prevent the Administrative
Agent or any Lender from disclosing any such information (a) to the Administrative Agent, any other
Lender or any affiliate thereof, (b) subject to an agreement to comply with the provisions of this
Section, to any actual or prospective Transferee or any direct or indirect counterparty to any Swap
Agreement (or any professional advisor to such counterparty), (c) to its employees, directors,
agents, attorneys, accountants and other professional advisors or those of any of its affiliates,
(d) upon the request or demand of any Governmental Authority, (e) in response to any order of any
court or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any litigation or
similar proceeding, (g) that has been publicly disclosed, (h) to the National Association of
Insurance Commissioners or any similar organization or any nationally recognized rating agency that
requires access to information about a Lender’s investment portfolio in connection with ratings
issued with respect to such Lender, or (i) in connection with the exercise of any remedy hereunder
or under any other Loan Document.




          Each Lender acknowledges that information furnished to it pursuant to this Agreement or the
other Loan Documents may include material non-public information concerning the Borrower and its
Affiliates and their related parties or their respective securities, and confirms that it has
developed compliance procedures regarding the use of material non-public information and that it
will handle such material non-public information in accordance with those procedures and applicable
law, including Federal and state securities laws.




          All information, including requests for waivers and amendments, furnished by the Borrower or
the Administrative Agent pursuant to, or in the course of administering, this Agreement or the
other Loan Documents will be syndicate-level information, which may contain material non-public
information about the Borrower and its Affiliates and their related parties or their respective
securities. Accordingly, each Lender represents to the Borrower and the Administrative Agent that
it has identified in its administrative questionnaire a credit contact who may receive information
that may contain material










 



64

non-public information in accordance with its compliance procedures and
applicable law, including Federal and state securities laws.




          10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.




          10.17 PATRIOT Act. (a) The 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 “PATRIOT Act”), it may be 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 the Lender to identify the Borrower in accordance with the
Patriot Act.




          (b) If the addition of any new Loan Party obliges the Lender to comply with “know your
customer” or similar identification procedures in circumstances where the necessary information is
not already available to it, the Borrower shall promptly upon the request of the Lender supply, or
procure the supply of, such documentation and other evidence as is reasonably requested by the
Lender (for itself or on behalf of any prospective new Lender) in order for the Lender or any
prospective new Lender to carry out and be satisfied it has complied with all necessary “know your
customer” or other similar checks under all applicable Requirements of Law.




[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]










 




 


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




	 	 	 	 	 
	 	NEWPARK RESOURCES, INC.,

as Borrower

 	 
	 	By:  	/s/
James E. Braun
 	 
	 	 	Name:  	James E. Braun 	 
	 	 	Title:  	Chief Financial Officer and Vice President 	 
	 



[Signature Page to Amended and Restated Credit Agreement]











 




 

	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and as a Lender

 	 
	 	By:  	/s/ J. Charles Freel, Jr.
 	 
	 	 	Name:  	J. Charles Freel, Jr. 	 
	 	 	Title:  	Senior Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]











 




 

	 	 	 	 	 
	 	CALYON NEW YORK BRANCH,

as Syndication Agent and as a Lender

 	 
	 	By:  	/s/
Page Dillehunt
 	 
	 	 	Name:  	Page Dillehunt 	 
	 	 	Title:  	Managing Director 	 
	 
	 	 	 
	 	By:  	/s/ Michael D. Willis
 	 
	 	 	Name:  	Michael D. Willis 	 
	 	 	Title:  	Director 	 
	 




[Signature Page to Amended and Restated Credit Agreement]











 



 

	 	 	 	 	 
	 	BANK OF AMERICA, N.A.,

as Documentation Agent and as a Lender

 	 
	 	By:  	/s/ Julie C. Vincent
 	 
	 	 	Name:  	Julie C. Vincent 	 
	 	 	Title:  	Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]











 




 

	 	 	 	 	 
	 	Wells Fargo Bank, N.A.,


as a Lender

 	 
	 	By:  	/s/ Donald W. Herrick, Jr
 	 
	 	 	Name:  	Donald W. Herrick, Jr 	 
	 	 	Title:  	Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]





 











 



 

	 	 	 	 	 
	 	Sun Trust Bank

as a Lender

 	 
	 	By:  	/s/ Joe McCreery
 	 
	 	 	Name:  	Joe McCreery 	 
	 	 	Title:  	Director 	 
	 




[Signature Page to Amended and Restated Credit Agreement]












 



 

	 	 	 	 	 
	 	Capital One Bank, NA,

as a Lender

 	 
	 	By:  	/s/ Don Backer
 	 
	 	 	Name:  	Don Backer 	 
	 	 	Title:  	Senior Vice President 	 
	 














 



 

	 	 	 	 	 
	 	Whitney National Bank,

as a Lender
 	 
	 	By:  	/s/ Josh J. Jones
 	 
	 	 	Name:  	Josh J. Jones 	 
	 	 	Title:  	Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]












 



 

	 	 	 	 	 
	 	Comerica Bank

as a Lender

 	 
	 	By:  	/s/ Cyd Dillahunty
 	 
	 	 	Name:  	Cyd Dillahunty 	 
	 	 	Title:  	Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]












 



 

	 	 	 	 	 
	 	TRUST NATIONAL BANK

as a Lender

 	 
	 	By:  	/s/ L. J. Perenyi
 	 
	 	 	Name:  	L. J. Perenyi 	 
	 	 	Title:  	Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]












 



 

	 	 	 	 	 
	 	Mizuho Corporate Bank, Ltd.

as a Lender

 	 
	 	By:  	/s/ Leon Mo
 	 
	 	 	Name:  	Leon Mo 	 
	 	 	Title:  	Senior Vice President 	 
	 




[Signature Page to Amended and Restated Credit Agreement]