exv10w1





Exhibit 10.1



 

 


FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




dated as of



October 21, 2011



among



LENNOX INTERNATIONAL INC.,

as the Borrower,



The Lenders Party Hereto







JPMORGAN CHASE BANK, NATIONAL ASSOCIATION

as Administrative Agent,




BANK OF AMERICA, N.A. and WELLS FARGO BANK, N.A.

as Syndication Agents,



PNC BANK, NATIONAL ASSOCIATION and THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

as Documentation Agents,



and



U.S. BANK NATIONAL ASSOCIATION,

as Managing Agent



 





J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and




WELLS FARGO SECURITIES, LLC

as Joint Lead Arrangers,




and



J.P. MORGAN SECURITIES LLC,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and



WELLS FARGO SECURITIES, LLC,

as Joint Bookrunners




 

 










 









 




Table of Contents





	 	 	 	 	 
	 
	 	Page #
	ARTICLE I. DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	Section 1.01. Defined Terms
	 	 	1	 
	Section 1.02. Classification of Loans and Borrowings
	 	 	19	 
	Section 1.03. Terms Generally
	 	 	19	 
	Section 1.04. Accounting Terms; GAAP
	 	 	19	 
	Section 1.05. Conversion of Foreign Currencies
	 	 	19	 
	(a) Dollar Equivalents
	 	 	19	 
	(b) Rounding-Off
	 	 	20	 
	 
	 	 	 	 
	ARTICLE II. THE CREDITS
	 	 	20	 
	 
	 	 	 	 
	Section 2.01. Commitments
	 	 	20	 
	Section 2.02. Loans and Borrowings
	 	 	20	 
	(a) Loans Made Ratably
	 	 	20	 
	(b) Loan Types
	 	 	20	 
	(c) Minimum Amounts; Limitation on Eurodollar Borrowings
	 	 	20	 
	(d) Limitation on Interest Periods
	 	 	20	 
	Section 2.03. Requests for Borrowings
	 	 	20	 
	Section 2.04. Swingline Loans
	 	 	21	 
	(a) Commitment
	 	 	21	 
	(b) Borrowing Procedure
	 	 	21	 
	(c) Revolving Lender Participation in Swingline Loans
	 	 	22	 
	Section 2.05. Letters of Credit
	 	 	22	 
	(a) General
	 	 	22	 
	(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions
	 	 	22	 
	(c) Expiration Date
	 	 	23	 
	(d) Participations
	 	 	23	 
	(e) Reimbursement
	 	 	23	 
	(f) Obligations Absolute
	 	 	24	 
	(g) Disbursement Procedures
	 	 	25	 
	(h) Interim Interest
	 	 	25	 
	(i) Replacement of the Issuing Bank
	 	 	25	 
	(j) Cash Collateralization
	 	 	25	 
	Section 2.06. Funding of Borrowings
	 	 	26	 
	(a) By Lenders
	 	 	26	 
	(b) Fundings Assumed Made
	 	 	26	 
	Section 2.07. Interest Elections
	 	 	26	 
	(a) Conversion and Continuation
	 	 	26	 
	(b) Delivery of Interest Election Request
	 	 	27	 
	(c) Contents of Interest Election Request
	 	 	27	 
	(d) Notice to the Lenders
	 	 	27	 
	(e) Automatic Conversion
	 	 	27	 
	(f) Limitations on Election
	 	 	27	 
	Section 2.08. Termination and Reduction of Commitments
	 	 	28	 
	(a) Termination Date
	 	 	28	 
	(b) Optional Termination or Reduction
	 	 	28	 
	(c) Notice of Termination or Reduction
	 	 	28	 
	Section 2.09. Repayment of Loans; Evidence of Debt
	 	 	28	 
	(a) Promise to Pay
	 	 	28	 
	(b) Lender Records
	 	 	28	 
	(c) Administrative Agent Records
	 	 	28	 
	(d) Prima Facie Evidence
	 	 	29	 






TABLE OF CONTENTS, Page i of v




 









 





	 	 	 	 	 

	(e) Request for a Note
	 	 	29	 
	Section 2.10. Prepayment of Loans
	 	 	29	 
	(a) Optional Prepayment
	 	 	29	 
	(b) Mandatory Prepayment of Revolving Loans
	 	 	29	 
	(c) Selection of Borrowing to be Prepaid
	 	 	29	 
	(d) Notice of Prepayment; Application of Prepayments
	 	 	29	 
	Section 2.11. Fees
	 	 	30	 
	Section 2.12. Interest
	 	 	31	 
	(a) ABR Borrowings
	 	 	31	 
	(b) Eurodollar Borrowings
	 	 	31	 
	(c) Swingline Borrowings
	 	 	31	 
	(d) Default Interest
	 	 	31	 
	(e) Payment of Interest
	 	 	31	 
	(f) Computation
	 	 	31	 
	Section 2.13. Alternate Rate of Interest
	 	 	31	 
	Section 2.14. Increased Costs
	 	 	32	 
	(a) Change In Law
	 	 	32	 
	(b) Capital Adequacy
	 	 	32	 
	(c) Delivery of Certificate
	 	 	32	 
	(d) Limitation on Compensation
	 	 	33	 
	Section 2.15. Break Funding Payments
	 	 	33	 
	Section 2.16. Taxes
	 	 	33	 
	(a) Gross Up
	 	 	33	 
	(b) Payment of Other Taxes
	 	 	33	 
	(c) Tax Indemnification
	 	 	33	 
	(d) Receipts
	 	 	34	 
	(e) Status of Lenders
	 	 	34	 
	Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-Offs; Proceeds
of Guaranty Agreement
	 	 	36	 
	(a) Payments Generally
	 	 	36	 
	(b) Pro Rata Application
	 	 	36	 
	(c) Sharing of Set-offs
	 	 	37	 
	(d) Payments from Borrower Assumed Made
	 	 	37	 
	(e) Set-Off Against Amounts Owed Lenders
	 	 	37	 
	(f) Application of Proceeds of Guaranty Agreement
	 	 	37	 
	(g) Noncash Proceeds
	 	 	38	 
	(h) Return of Proceeds
	 	 	38	 
	(i) Notice of Amount of Obligations
	 	 	38	 
	Section 2.18. Mitigation Obligations; Replacement of Lenders
	 	 	39	 
	(a) Mitigation
	 	 	39	 
	(b) Replacement
	 	 	39	 
	Section 2.19. Increase of Revolving Commitments
	 	 	39	 
	Section 2.20. Defaulting Lenders
	 	 	40	 
	(a) Suspension of Commitment Fees
	 	 	40	 
	(b) Suspension of Voting
	 	 	40	 
	(c) Participation Exposure
	 	 	40	 
	(d) Suspension of Swingline Loans
	 	 	41	 
	 
	 	 	 	 
	ARTICLE III. REPRESENTATIONS AND WARRANTIES
	 	 	41	 
	 
	 	 	 	 
	Section 3.01. Organization; Powers
	 	 	42	 
	Section 3.02. Authorization; Enforceability
	 	 	42	 
	Section 3.03. Governmental Approvals; No Conflicts
	 	 	42	 
	Section 3.04. Financial Condition; No Material Adverse Change
	 	 	42	 
	Section 3.05. Properties
	 	 	43	 
	Section 3.06. Litigation and Environmental Matters
	 	 	43	 
	Section 3.07. Compliance with Laws and Agreements
	 	 	43	 






TABLE OF CONTENTS, Page ii of v




 









 





	 	 	 	 	 

	Section 3.08. Investment Company Status
	 	 	43	 
	Section 3.09. Taxes
	 	 	43	 
	Section 3.10. ERISA
	 	 	44	 
	Section 3.11. Disclosure
	 	 	44	 
	Section 3.12. Material Subsidiaries
	 	 	44	 
	Section 3.13. Insurance
	 	 	44	 
	Section 3.14. Labor Matters
	 	 	44	 
	Section 3.15. Solvency
	 	 	45	 
	Section 3.16. Margin Securities
	 	 	45	 
	 
	 	 	 	 
	ARTICLE IV. CONDITIONS
	 	 	45	 
	 
	 	 	 	 
	Section 4.01. Conditions of Initial Credit Extension
	 	 	45	 
	(a) Execution and Delivery of This Agreement
	 	 	45	 
	(b) Guaranty Agreement
	 	 	45	 
	(c) Prior Credit Agreement
	 	 	46	 
	(d) Legal Opinion
	 	 	46	 
	(e) Corporate Authorization Documents
	 	 	46	 
	(f) Closing Certificate
	 	 	46	 
	(g) Fees
	 	 	46	 
	(h) Exiting Lenders
	 	 	46	 
	Section 4.02. Each Credit Event
	 	 	46	 
	(a) Representations and Warranties
	 	 	47	 
	(b) Revolving Commitments
	 	 	47	 
	(c) No Default
	 	 	47	 
	Section 4.03. Effective Date Advances and Adjustments
	 	 	47	 
	 
	 	 	 	 
	ARTICLE V. AFFIRMATIVE COVENANTS
	 	 	47	 
	 
	 	 	 	 
	Section 5.01. Financial Statements and Other Information
	 	 	47	 
	(a) Annual Audit
	 	 	47	 
	(b) Quarterly Financial Statements
	 	 	48	 
	(c) Compliance Certificate
	 	 	48	 
	(d) Debt Rating
	 	 	48	 
	(e) Senior Unsecured Notes
	 	 	48	 
	(f) Additional Information
	 	 	48	 
	Section 5.02. Notices of Material Events
	 	 	49	 
	(a) Default
	 	 	49	 
	(b) Notice of Proceedings
	 	 	49	 
	(c) ERISA Event
	 	 	49	 
	(d) Material Adverse Effect
	 	 	49	 
	Section 5.03. Existence; Conduct of Business
	 	 	49	 
	Section 5.04. Payment of Obligations
	 	 	49	 
	Section 5.05. Maintenance of Properties
	 	 	49	 
	Section 5.06. Insurance
	 	 	49	 
	Section 5.07. Guarantee and Secure Loans Equally
	 	 	49	 
	Section 5.08. Books and Records; Inspection and Audit Rights
	 	 	50	 
	Section 5.09. Compliance with Laws
	 	 	50	 
	Section 5.10. Use of Proceeds
	 	 	50	 
	Section 5.11. New Material Subsidiaries
	 	 	50	 
	Section 5.12. Further Assurances
	 	 	51	 
	 
	 	 	 	 
	ARTICLE VI. NEGATIVE COVENANTS
	 	 	51	 
	 
	 	 	 	 
	Section 6.01. Indebtedness; Certain Equity Securities
	 	 	51	 
	Section 6.02. Liens
	 	 	52	 
	Section 6.03. Fundamental Changes
	 	 	53	 
	Section 6.04. Investments, Loans, Advances and Acquisitions
	 	 	54	 
	Section 6.05. Asset Sales
	 	 	55	 






TABLE OF CONTENTS, Page iii of v




 









 





	 	 	 	 	 

	Section 6.06. Sale and Leaseback Transactions
	 	 	56	 
	Section 6.07. Swap Agreements
	 	 	57	 
	Section 6.08. Restricted Payments
	 	 	57	 
	Section 6.09. Transactions with Affiliates
	 	 	57	 
	Section 6.10. Restrictive Agreements
	 	 	57	 
	Section 6.11. Amendment of Material Documents
	 	 	58	 
	Section 6.12. Change in Fiscal Year
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VII. FINANCIAL COVENANTS
	 	 	58	 
	 
	 	 	 	 
	Section 7.01. Leverage Ratio
	 	 	58	 
	Section 7.02. Interest Coverage Ratio
	 	 	58	 
	 
	 	 	 	 
	ARTICLE VIII. EVENTS OF DEFAULT
	 	 	59	 
	 
	 	 	 	 
	Section 8.01. Events of Default; Remedies
	 	 	59	 
	(a) Principal Payments
	 	 	59	 
	(b) Interest, Fees, and other Payments
	 	 	59	 
	(c) Representations or Warranties
	 	 	59	 
	(d) Covenant Violation; Immediate Default
	 	 	59	 
	(e) Covenant Violation with Cure Period
	 	 	59	 
	(f) Cross Payment Default
	 	 	59	 
	(g) Cross Covenant Default
	 	 	60	 
	(h) Involuntary Bankruptcy
	 	 	60	 
	(i) Voluntary Bankruptcy
	 	 	60	 
	(j) Other Insolvency
	 	 	60	 
	(k) Judgments
	 	 	60	 
	(l) ERISA Event
	 	 	60	 
	(m) Invalidity of Loan Documents
	 	 	60	 
	(n) Change in Control
	 	 	60	 
	Section 8.02. Performance by the Administrative Agent
	 	 	61	 
	Section 8.03. Limitation on Separate Suit
	 	 	61	 
	 
	 	 	 	 
	ARTICLE IX. THE ADMINISTRATIVE AGENT
	 	 	61	 
	 
	 	 	 	 
	Section 9.01. Appointment
	 	 	61	 
	Section 9.02. Rights as a Lender
	 	 	61	 
	Section 9.03. Limitation of Duties and Immunities
	 	 	62	 
	Section 9.04. Reliance on Third Parties
	 	 	62	 
	Section 9.05. Sub-Agents
	 	 	62	 
	Section 9.06. Successor Agent
	 	 	62	 
	Section 9.07. Independent Credit Decisions
	 	 	63	 
	Section 9.08. Other Agents
	 	 	63	 
	Section 9.09. Powers and Immunities of Issuing Bank
	 	 	63	 
	Section 9.10. Authorized Release of Subsidiary Guarantor
	 	 	64	 
	Section 9.11. Lender Affiliates Rights
	 	 	64	 
	Section 9.12. Resignation of Bank of America, N.A
	 	 	64	 
	 
	 	 	 	 
	ARTICLE X. MISCELLANEOUS
	 	 	64	 
	 
	 	 	 	 
	Section 10.01. Notices
	 	 	64	 
	Section 10.02. Waivers; Amendments
	 	 	65	 
	(a) No Waiver; Rights Cumulative
	 	 	65	 
	(b) Amendments
	 	 	65	 
	Section 10.03. Expenses; Indemnity; Damage Waiver
	 	 	66	 
	(a) Expenses
	 	 	66	 
	(b) Indemnity
	 	 	66	 
	(c) Lender’s Agreement to Pay
	 	 	67	 
	(d) Waiver of Damages
	 	 	67	 
	(e) Payment
	 	 	68	 






TABLE OF CONTENTS, Page iv of v




 









 





	 	 	 	 	 

	Section 10.04. Successors and Assigns.
	 	 	68	 
	(a) Successors and Assigns
	 	 	68	 
	(b) Assignment
	 	 	68	 
	(c) Participations
	 	 	70	 
	(d) Pledge
	 	 	70	 
	Section 10.05. Survival
	 	 	70	 
	Section 10.06. Counterparts; Integration; Effectiveness; Amendment and Restatement
	 	 	70	 
	Section 10.07. Severability
	 	 	71	 
	Section 10.08. Right of Setoff
	 	 	71	 
	Section 10.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	71	 
	(a) Governing Law
	 	 	71	 
	(b) Jurisdiction
	 	 	71	 
	(c) Venue
	 	 	72	 
	(d) Service of Process
	 	 	72	 
	Section 10.10. WAIVER OF JURY TRIAL
	 	 	72	 
	Section 10.11. Headings
	 	 	72	 
	Section 10.12. Confidentiality
	 	 	72	 
	Section 10.13. Maximum Interest Rate
	 	 	73	 
	(a) Limitation to Maximum Rate; Recapture
	 	 	73	 
	(b) Cure Provisions
	 	 	74	 
	Section 10.14. No Duty
	 	 	74	 
	Section 10.15. No Fiduciary Relationship
	 	 	74	 
	Section 10.16. Equitable Relief
	 	 	74	 
	Section 10.17. Construction
	 	 	74	 
	Section 10.18. Independence of Covenants
	 	 	75	 
	Section 10.19. USA PATRIOT Act
	 	 	75	 
	Section 10.20. Judgment Currency
	 	 	75	 






TABLE OF CONTENTS, Page v of v




 









 





LIST OF SCHEDULES AND EXHIBITS




SCHEDULES:




	 	 	 	 	 

	Schedule 1.01

	 	—
	 	 Existing Letters of Credit
	Schedule 2.01

	 	—
	 	 Commitments
	Schedule 3.12

	 	—
	 	 Material Subsidiaries
	Schedule 6.01

	 	—
	 	 Existing Indebtedness
	Schedule 6.02

	 	—
	 	 Existing Liens
	Schedule 6.04

	 	—
	 	 Existing Investments
	Schedule 6.10

	 	—
	 	 Existing Restrictions






EXHIBITS:




	 	 	 	 	 

	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B

	 	—
	 	Form of Compliance Certificate
	Exhibit C

	 	—
	 	Form of Guaranty Agreement (Material Subsidiaries)
	Exhibit D

	 	—
	 	Form of Increased Commitment Supplement
	Exhibit E

	 	—
	 	Form of Borrowing Request
	Exhibit F

	 	—
	 	Form of Interest Election Request






LIST OF SCHEDULES AND EXHIBITS, Solo Page




 









 





     FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT dated as of October 21, 2011,
among LENNOX INTERNATIONAL INC., a Delaware corporation, the LENDERS party hereto, and JPMORGAN
CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent.



WITNESSETH




     A. The Borrower, Bank of America, N.A., as administrative agent, and certain lenders entered
into that certain Third Amended and Restated Revolving Credit Facility Agreement dated as of
October 12, 2007 (as amended by that certain First Amendment to Third Amended and Restated
Revolving Credit Facility Agreement dated as of February 22, 2010, the “Prior Credit
Agreement”).



     B. The Borrower and the other Loan Parties have requested that the Prior Credit Agreement be
amended to, among other things, extend the Revolving Maturity Date. The parties have agreed to
amend and restate the Prior Credit Agreement on the terms and conditions set forth herein.



     C. Contemporaneously with the execution of this Agreement, RBS Citizens, N.A. and UBS Loan
Finance LLC shall assign all of their interests as Lenders under the Prior Credit Agreement to
JPMorgan Chase Bank, National Association pursuant to those certain Assignment and Assumption
Agreements dated as of the date hereof.



     D. Pursuant to their execution of this Agreement, Branch Banking and Trust Company, Fifth
Third Bank, and Morgan Stanley Bank, N.A. are becoming Lenders hereunder.



     E. Bank of America, N.A. is hereby resigning as the administrative agent under the Prior
Credit Agreement. As a result, the Loan Parties have requested that Bank of America, N.A. assign
all of its right, title and interest as the “Administrative Agent” and “Swingline Lender” under the
Prior Credit Agreement and the “Loan Documents” (as defined in the Prior Credit Agreement) to
JPMorgan Chase Bank, National Association in connection with the execution of this Agreement.



     The parties hereto agree as follows:



ARTICLE I.




Definitions



     Section 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



     “ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.



     “Adjusted EBITDA” means, for any period (the “Subject Period”), the total of
the following calculated without duplication for such period: (a) Borrower’s EBITDA; plus
(b), on a pro forma basis, the pro forma EBITDA of each Prior Target or, as applicable, the EBITDA
of a Prior Target attributable to the assets acquired from such Prior Target, for any portion of
such Subject Period occurring prior to the date of the acquisition of such Prior Target or the
related assets but only to the extent such EBITDA for such Prior Target can be established in a
manner reasonably satisfactory to the Administrative Agent based on financial statements of the
Prior Target prepared in accordance with GAAP; minus (c) the EBITDA of each Prior Company
and, as applicable but without duplication, the EBITDA of Borrower



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 1




 









 




and each Subsidiary attributable to all Prior Assets, in each case for any portion of such
Subject Period occurring prior to the date of the disposal of such Prior Companies or Prior Assets.




     “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period or with respect to the determination of the Alternate Base Rate and the Eurodollar Daily
Floating Rate, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period or,
with respect to the determination of the Alternate Base Rate and the Eurodollar Daily Floating
Rate, for a one month interest period multiplied by (b) the Statutory Reserve Rate.



     “Administrative Agent” means JPMorgan Chase Bank, National Association, in its
capacity as administrative agent for the Lenders hereunder.



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



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



     “Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 0.5% and (c) the Adjusted LIBO Rate for a one month interest period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Adjusted LIBO Rate shall be effective from and including the effective date of such change in the
Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.



     “Applicable Percentage” means, with respect to any Revolving Lender, the percentage of
the total Revolving Commitments represented by such Lender’s Revolving Commitment; provided that,
in accordance with Section 2.20, so long as any Lender shall be a Defaulting Lender, such
Defaulting Lender’s Commitment shall be disregarded in the foregoing calculations. If the
Revolving Commitments have terminated or expired, the Applicable Percentages shall be determined
based upon the Revolving Commitments most recently in effect, giving effect to any assignments.



     “Applicable Rate” means, for any day, with respect to any ABR Loan (including any
Swingline Loan bearing interest at the Alternate Base Rate), any Eurodollar Loan, any Swingline
Loan bearing interest at the Eurodollar Daily Floating Rate, or with respect to the commitment fees
payable hereunder, as the case may be, the applicable rate per annum set forth below under the
caption “ABR Spread”, “Eurodollar Spread”, “Eurodollar Daily Swingline Spread” or “Commitment Fee
Rate”, as the case may be, based upon the Leverage Ratio as of the most recent determination date:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Eurodollar	 	 	 	 
	 	 	 	 	 	 	Eurodollar	 	 	Daily Swingline	 	 	Commitment	 
	Leverage Ratio	 	ABR Spread	 	 	Spread	 	 	Spread	 	 	Fee Rate	 
	Category 1

> 3.00 to 1.0
	 	 	1.00	%	 	 	2.00	%	 	 	2.00	%	 	 	0.35	%
	Category 2 

£ 3.00 to 1.0 but
> 2.50 to 1.0
	 	 	0.75	%	 	 	1.75	%	 	 	1.75	%	 	 	0.30	%
	Category 3

£ 2.50 to 1.0 but
> 2.00 to 1.0
	 	 	0.50	%	 	 	1.50	%	 	 	1.50	%	 	 	0.25	%





FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 2




 









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Eurodollar	 	 	 	 
	 	 	 	 	 	 	Eurodollar	 	 	Daily Swingline	 	 	Commitment	 
	Leverage Ratio	 	ABR Spread	 	 	Spread	 	 	Spread	 	 	Fee Rate	 
	Category 4

£ 2.00 to 1.0 but
> 1.50 to 1.0
	 	 	0.25	%	 	 	1.25	%	 	 	1.25	%	 	 	0.20	%
	Category 5

£ 1.50 to 1.0
	 	 	0.00	%	 	 	1.00	%	 	 	1.00	%	 	 	0.15	%





For purposes of the foregoing, (i) the Leverage Ratio shall be determined as of the end of each
fiscal quarter of the Borrower’s fiscal year based upon the Borrower’s consolidated financial
statements delivered pursuant to Section 5.01(a) or (b); provided that until the delivery
to the Administrative Agent of the Borrower’s consolidated financial statements for the fiscal
quarter ending September 30, 2011 pursuant to Section 5.01(b), the “Applicable Rate” shall be the
applicable rate per annum set forth in Category 3 and (ii) each change in the Applicable Rate
resulting from a change in the Leverage Ratio shall be effective during the period commencing on
and including the date of delivery to the Administrative Agent of such consolidated financial
statements indicating such change and ending on the date immediately preceding the effective date
of the next such change; provided that the Leverage Ratio shall be deemed to be in Category
1 (A) at any time that an Event of Default has occurred and is continuing or (B) at the option of
the Administrative Agent or at the request of the Required Lenders if the Borrower fails to deliver
the consolidated financial statements required to be delivered by it pursuant to Section 5.01(a) or
(b), during the period from the expiration of the time for delivery thereof until such consolidated
financial statements are delivered. If it is ever subsequently determined that such financial
statements did not accurately report as of the date of such financial statements the information
necessary to determine the Leverage Ratio and as a result thereof the Leverage Ratio utilized to
determine the Applicable Rate was not correct and resulted in (i) the Applicable Rate being
otherwise lower than it should have been if the Leverage Ratio was accurately determined, then the
Borrower shall pay to the Administrative Agent the amount that would have been due under the terms
hereof if the Leverage Ratio was calculated correctly or (ii) the Applicable Rate being otherwise
higher than it should have been if the Leverage Ratio was accurately determined, then the Borrower
shall receive a credit equal to the amount of the overpayment to be applied to future Obligations.
A certificate of the Administrative Agent setting forth the amount or amounts (including a
reasonably detailed calculation thereof) of any such difference shall be delivered to the Borrower
and the Borrower shall pay the Administrative Agent the amount shown as due on any such certificate
within 30 days after receipt thereof.




     “Approved Fund” has the meaning assigned to such term in Section 10.04.



     “Assignment and Assumption” means an Assignment and Assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 10.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.



     “Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with
reorganization or liquidation of its business, appointed for it, or, in the good faith
determination of the Administrative Agent, has taken any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that
a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition
of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such Person with
immunity from the jurisdiction of courts within the United States or from the enforcement of
judgments or writs of attachment on its assets or permit such Person (or such Governmental
Authority or



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 3



 









 




instrumentality), to reject, repudiate, disavow or disaffirm any contracts or agreements made
by such Person.




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



     “Borrower” means Lennox International Inc., a Delaware corporation.



     “Borrowing” means (a) Loans of the same Class and Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect, or (b) a Swingline Loan.



     “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.



     “Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City and Dallas, Texas are authorized or required by law to remain
closed; provided that, when used in connection with a Eurodollar Loan, the term
“Business Day” shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.



     “Capital Expenditures” means, for any period and a Person, the additions to property,
plant and equipment and other capital expenditures of such Person and its consolidated subsidiaries
that are (or would be) set forth in a consolidated statement of cash flows of such Person for such
period prepared in accordance with GAAP.



     “Capital Lease Obligations” of any Person means 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 the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.



     “Change in Control” means the acquisition by any New Owner of beneficial ownership of
40% or more of the outstanding shares of common stock of the Borrower entitled to vote for members
of the board of directors of the Borrower. As used in this definition,



          “Norris Family” means all Persons who are lineal descendants of D.W. Norris (by birth
or adoption), all spouses of such descendants, all estates of such descendants or spouses which are
in the course of administration, all trusts for the benefit of such descendants or spouses, and all
corporations or other entities in which, directly or indirectly, such descendants or spouses
(either alone or in conjunction with other such descendants or spouses) have the right, whether by
ownership of stock or other Equity Interests or otherwise, to direct the management and policies of
such corporations or other entities (each such person, spouse, estate, trust, corporation or entity
being referred to herein as a “member” of the Norris Family).



          “New Owner” means any Person (other than a member of the Norris Family), or any
syndicate or group of Persons (exclusive of all members of the Norris Family) which would be deemed
a Person or group (within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof), who directly or
indirectly acquires shares in the Borrower.



     “Change in Law” means (a) the adoption of any law, rule, regulation or treaty
(including any rules or regulations issued under or implementing any existing law) after the date
of this Agreement, (b) any



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 4




 









 




change in any law, rule, regulation or treaty or in the interpretation or application thereof
by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender or
the Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender or by
such Lender’s or the Issuing Bank’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued
after the date of this Agreement; provided that notwithstanding anything herein to the contrary,
(i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules,
guidelines or directives thereunder, issued in connection therewith or in implementation thereof,
and (ii) all requests, rules, guidelines and directives promulgated by the Bank for International
Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or
the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in
each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, issued or
implemented.




     “Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans and, when used in
reference to any Commitment, refers to whether such Commitment is a Revolving Commitment or
Swingline Commitment.



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



     “Commitments” means the Revolving Commitment and the commitment of the Swingline
Lender to make Swingline Loans.



     “Consolidated Net Income” means, for any period, the net income (or net loss) of the
Borrower and its Subsidiaries for such period, determined in accordance with GAAP.



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



     “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



     “Defaulting Lender” means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or Swingline Loans or (iii) pay over to any Loan Party
any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such
Lender notifies the Administrative Agent in writing that such failure is the result of such
Lender’s good faith determination that a condition precedent to funding (specifically identified
and including the particular Default, if any) has not been satisfied; (b) has notified the Borrower
or any Loan Party in writing, or has made a public statement, to the effect that it does not intend
or expect to comply with any of its funding obligations under this Agreement (unless such writing
or public statement indicates that such position is based on such Lender’s good faith determination
that a condition precedent to funding a Revolving Loan under this Agreement (specifically
identified and including the particular Default, if any) cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by a Loan Party, acting in good faith, to provide a certification in writing from an
authorized officer of such Lender that it will comply with its obligations to fund prospective
Loans and participations in then outstanding Letters of Credit and Swingline Loans under this
Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon such Loan Party’s receipt of such certification in form and substance satisfactory to it
and the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 5




 









 





     “Deposit Obligations” means all obligations, indebtedness, and liabilities of the
Borrower or any Subsidiaries, or any one of them, to any Lender or any Affiliate of any Lender
arising pursuant to any deposit, lock box, automated clearing house or cash management arrangements
entered into by any Lender or any Affiliate of any Lender with the Borrower or any Subsidiaries,
whether now existing or hereafter arising, whether direct, indirect, related, unrelated, fixed,
contingent, liquidated, unliquidated, joint, several, or joint and several, including the
obligation, indebtedness, and liabilities of the Borrower or any Subsidiaries, or any one of them,
to repay any credit extended in connection with such arrangements, interest thereon, and all fees,
costs, and expenses (including attorneys’ fees and expenses) provided for in the documentation
executed in connection therewith.



     “Disclosed Matters” means all the matters disclosed in the Borrower’s reports to the
Securities and Exchange Commission on Form 10-Q for the quarterly period ended June 30, 2011,
on any Form 8-K filed after the Form 10-Q for the quarterly period ended June 30, 2011 but before
the Effective Date, and on Form 10-K for the fiscal year ended December 31, 2010.



     “Dollars”, “dollars” or “$” refers to lawful money of the United
States of America.



     “Dollar Amount” means, as of any date of determination, (a) in the case of any amount
denominated in Dollars, such amount, and (b) in the case of any amount denominated in another
currency, the amount of Dollars which is equivalent to such amount of other currency as of such
date, determined by using the Spot Rate on the date two (2) Business Days prior to such date or on
such other date as may be requested by the Borrower and approved by the Administrative Agent.



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



     “EBITDA” means, for any period, the total of the following calculated for Borrower and
its Subsidiaries without duplication on a consolidated basis in accordance with GAAP consistently
applied for such period: (a) Consolidated Net Income; plus (b) without duplication and to the
extent deducted in determining Consolidated Net Income for such period, the sum of: (i) income and
franchise taxes, (ii) Interest Expense, (iii) amortization and depreciation expense, (iv) non-cash
charges resulting from the application of GAAP that requires a charge against earnings for the
impairment of assets (including goodwill), (v) any non-cash expenses that arose in connection with
the grant of stock options or other equity based awards to officers, directors, consultants, and
employees of the Borrower and its Subsidiaries, (vi) any non-recurring charges which relate to the
discontinuance of Subsidiary operations, (vii) any non-recurring charges which relate to
restructuring and severance activities; provided, that the total cash amount of such charges shall
not exceed $15,000,000 during any four fiscal quarter period (not taking into account any cash
charges under (viii) below), (viii) any non-recurring charges which relate to the refinance of the
lease of the Borrower’s headquarters building located at 2140 Lake Park Blvd., Richardson, Texas
(the “Synthetic Lease”); provided, that the total cash amount of such charges shall not
exceed $15,000,000 during the term of this Agreement, (ix) any non-cash loss (or minus any gain)
associated with the sale of assets not in the ordinary course of business, (x) extraordinary loss
or other items (or minus any extraordinary gain or income), (xii) any non-cash loss (or minus any
non-cash gain) related to financial instrument hedges (other than foreign currency hedges), and
(xiii) the cumulative non-cash effects of changes in accounting policies; minus (c) cash payments
made in such period related to a non-cash expense (other than with respect to restructuring
activities) added to Consolidated Net Income in a previous period.



     “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 10.02).



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 6




 









 





     “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into
by any Governmental Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



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



     “Equity Interests” means shares of the capital stock, partnership interests,
membership interest in a limited liability company, beneficial interests in a trust or other equity
interests or any warrants, options or other rights to acquire such interests.



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



     “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.



     “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the failure of any Plan to satisfy the “minimum funding standards” in
any respect (as described in Sections 412 or 430 of the Code or Section 302 of ERISA), determined
without regard to whether any such contribution required under the Code or ERISA has or has not
been waived by the Internal Revenue Service; (c) 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 Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under
Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Borrower or
any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by
the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the
meaning of Title IV of ERISA.



     “euro” or “Euro” means the single currency of the Participating Member States.



     “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate but not including any Loan or Borrowing bearing interest at a
rate determined by reference to (a) clause (c) of the definition of the term “Alternate Base Rate”
or (b) the term “Eurodollar Daily Floating Rate”.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 7




 









 





     “Eurodollar Daily Floating Rate” means, for any day, the daily fluctuating rate per
annum equal to the Adjusted LIBO Rate for a one month interest period. Any change in the
Eurodollar Daily Floating Rate due to a change in the LIBO Rate shall be effective from and
including the effective date of such change in the LIBO Rate.



     “Event of Default” has the meaning assigned to such term in Article VIII.



     “Excluded Foreign Subsidiary” means any Foreign Subsidiary in respect of which the
guaranteeing of the Obligations would result in an adverse tax consequence to the Borrower.



     “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) taxes imposed on (or measured by) its net overall income (however
denominated) and franchise taxes imposed on such Lender or other recipient by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located or by any other jurisdiction as a result of any other present or former connection
between such recipient and such jurisdiction (other than any connection arising from the
execution, delivery or performance of any Loan Documents), (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other jurisdiction in which the
Borrower is located, (c) in the case of a Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.18(b)), any United States federal withholding tax that is imposed on
amounts payable to such Lender at the time such Lender becomes a party to this Agreement or
designates a new lending office, except to the extent that the Lender (or its assignor, in the case
of assignment) was entitled at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.16(a), (d) any United States federal withholding tax that would not have been imposed but
for the Recipient’s failure to comply with Section 2.16(e); and (e) any United States federal
withholding tax that would not have been imposed but for a failure by such Recipient to comply
with the applicable requirements of FATCA.



     “Existing Letters of Credit” means the letters of credit issued for the account of the
Borrower or a Subsidiary outstanding on the Effective Date and described on Schedule 1.01.



     “FATCA” means Section 1471 through 1474 of the Code, as of the date of this Agreement
(or any amended or successor version that is substantively comparable and not materially more
onerous to comply with) and any current or future regulations or official interpretations thereof.



     “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.



     “Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.



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



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 8




 









 





     “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than the United States of America or any State thereof or the District of
Columbia.



     “Fully Satisfied” or “Full Satisfaction” means, as of any date, that on or
before such date:




     (a) with respect to the Loan Obligations: (i) the principal of and interest
accrued to such date on the Loan Obligations (other than the contingent LC Exposure)
shall have been paid in full in cash, (ii) all fees, expenses and other amounts then
due and payable which constitute Loan Obligations (other than the contingent LC
Exposure and other contingent amounts not then liquidated) shall have been paid in
full in cash, (iii) the Commitments shall have expired or irrevocably been
terminated, and (iv) the contingent LC Exposure shall have been secured by: (A) the
grant of a first priority, perfected Lien on cash or cash equivalents in an amount
at least equal to 105% of the amount of such LC Exposure or other collateral which
is reasonably acceptable to the Issuing Bank or (B) the issuance of a letter of
credit in form and substance reasonably acceptable to the Issuing Bank with an
original face amount at least equal to 105% of the amount of such LC Exposure;




     (b) with respect to the Swap Obligations (i) all termination payments, fees,
expenses and other amounts then due and payable under the related Swap Agreements
which constitute Swap Obligations shall have been paid in full in cash; and (ii) all
contingent amounts which could be payable under the related Swap Agreements shall
have been secured by: (A) the grant of a first priority, perfected Lien on cash or
cash equivalents in an amount at least equal to 105% of the amount of such
contingent Swap Obligations or other collateral which is reasonably acceptable to
the Lender or Affiliate of a Lender holding the applicable Swap Obligations or (B)
the issuance of a letter of credit in form and substance reasonably acceptable to
the Lender or Affiliate of a Lender holding the applicable Swap Obligations and in
an amount at least equal to 105% of the amount of such contingent Swap Obligations;
and




     (c) with respect to the Deposit Obligations: (i) all fees, expenses and other
amounts then due and payable which constitute Deposit Obligations shall have been
paid in full in cash, (ii) any further commitments to extend credit in connection
with such Deposit Obligations shall have expired or irrevocably been terminated or
reasonably satisfactory arrangements to secure the same shall be made with the
depository bank, and (iii) all contingent amounts which could be payable in
connection with the Deposit Obligations shall have been secured by: (A) the grant
of a first priority, perfected Lien on cash or cash equivalents in an amount at
least equal to 105% of the amount of such contingent Deposit Obligations or other
collateral which is acceptable to the Lender or Affiliate of a Lender holding the
applicable Deposit Obligations or (B) the issuance of a letter of credit in form and
substance reasonably acceptable to the Lender or Affiliate of a Lender holding the
applicable Deposit Obligations and in an amount at least equal to 105% of the amount
of such contingent Deposit Obligations.




     “GAAP” means generally accepted accounting principles in the United States of America.



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



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 9




 









 




the Financial Accounting Standards Board, the Bank for International Settlements or the Basel
Committee on Banking Supervision or any successor or similar authority to any of the foregoing).




     “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation (including any obligations under an operating
lease) of any other Person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other
obligation or to purchase (or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation (including any obligations under an
operating lease) of the payment thereof, (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



     “Guaranty Agreement” means the Fourth Amended and Restated Subsidiary Guaranty
Agreement executed by the Subsidiary Guarantors dated as of the date hereof, substantially in the
form of Exhibit C hereto.



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



     “Increase Amount” has the meaning assigned to such term in Section 2.19.



     “Increased Commitment Supplement” has the meaning specified in Section 2.19.



     “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money or with respect to deposits or advances of any kind (including the
Receivable Securitization Outstandings); (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property acquired by such Person; (d) all
obligations of such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business); (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed; (f) all Guarantees by such Person; (g) all
Capital Lease Obligations of such Person; (h) all obligations, contingent or otherwise, of such
Person as an account party in respect of letters of credit and letters of guaranty (but excluding
obligations in respect of (1) trade or commercial letters of credit issued for the account of such
Person in the ordinary course of business and (2) stand-by letters of credit issued to support
obligations of such Person that are not of the type described in any of clauses (a) through (g) and
(i) through (k) of this definition); (i) all obligations, contingent or otherwise, of such Person
in respect of bankers’ acceptances; (j) all obligations of such Person under any Swap Agreement;
and (k) all 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
lease is required or is permitted to be classified and accounted for as an operating lease under
GAAP but which is intended by the parties thereto for tax, bankruptcy, regulatory, commercial law,
real estate law and all other purposes as a financing arrangement. 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



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 10





 












 




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 provide that such Person is not
liable therefor. The amount of the obligations of the Borrower or any Subsidiary in respect of any
Swap Agreement shall, at any time of determination and for all purposes under this Agreement, be
the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such
Subsidiary would be required to pay if such Swap Agreement were terminated at such time giving
effect to current market conditions notwithstanding any contrary treatment in accordance with GAAP.




     “Indemnified Taxes” means Taxes other than Excluded Taxes.



     “Information Memorandum” means the Confidential Information Memorandum dated September
28, 2011 relating to the Borrower and the Transactions.



     “Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.07.



     “Interest Expense” means the sum of the following calculated on a consolidated basis
without duplication in accordance with GAAP: (a) total interest expense (excluding interest expense
derived from amortization of fees and including any interest expense attributable to any Receivable
Securitization Facility); plus (b) that portion of amounts paid under synthetic lease obligations
that is representative of the interest expense that would have been paid if such transaction were
accounted for as a capital lease or otherwise as a financing.



     “Interest Payment Date” means (a) with respect to any ABR Loan and any Swingline Loan,
the last day of each March, June, September and December, and (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period.



     “Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending seven days or one, two, three or six months
thereafter, in each case, as the Borrower may elect, provided, that (y) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next preceding Business Day and
(z) any Interest Period (other than a seven day Interest Period) that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically corresponding day
in the last calendar month of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Borrowing.



     “Issuing Bank” means, collectively, each of JPMorgan Chase Bank, National Association,
Bank of America, N.A. and Wells Fargo Bank, N.A., in its capacity as the issuer of Letters of
Credit hereunder, and its successors in such capacity as provided in Section 2.05(i), and each bank
which has issued an Existing Letter of Credit solely with respect to such Existing Letter of
Credit. The Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term “Issuing Bank” shall include any
such Affiliate with respect to Letters of Credit issued by such Affiliate. Neither Bank of
America, N.A. nor Wells Fargo Bank, N.A. has any obligation to issue any Letter of Credit
hereunder.



     “LC Disbursement” means a payment made by the Issuing Bank pursuant to a Letter of
Credit.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 11




 









 





     “LC Exposure” means, at any time, without duplication, the sum of (a) the aggregate
undrawn Dollar Amount of all outstanding Letters of Credit at such time plus (b) the aggregate
Dollar amount of all LC Disbursements that have not yet been reimbursed by or on behalf of the
Borrower at such time. The LC Exposure of any Revolving Lender at any time shall be its Applicable
Percentage of the total LC Exposure at such time.



     “Lenders” means (a) for all purposes, the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Increased Commitment Supplement
or an Assignment and Assumption, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption or otherwise and (b) for purposes of the definitions of
“Swap Obligations” and “Secured Parties” only, shall include any Person who was a Lender at the
time a Swap Agreement was entered into by one or more of the Loan Parties, even though, at a later
time of determination, such Person no longer holds any Commitments or Loans hereunder. Unless the
context otherwise requires, the term “Lenders” includes the Swingline Lender. As a result of
clause (b) of this definition, the Swap Obligations owed to a Lender or its Affiliates shall
continue to be “Swap Obligations”, entitled to share in the benefits of the Guaranty Agreement as
herein provided, even though such Lender ceases to be a party hereto pursuant to an Assignment and
Assumption or otherwise.



     “Letter of Credit” means any letter of credit issued pursuant to this Agreement.



     “Leverage Ratio” means the ratio of Total Indebtedness to Adjusted EBITDA, as
calculated in accordance with Section 7.01.



     “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such
Service, or any successor to or substitute for such Service, providing rate quotations comparable
to those currently provided on such page of such Service, as determined by the Administrative Agent
from time to time for purposes of providing quotations of interest rates applicable to dollar
deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not available at such
time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest Period. For purposes of
determining the Alternate Base Rate or the Eurodollar Daily Floating Rate, the LIBO Rate for any
day shall be based on the rate appearing on the Reuters Screen LIBOR01 Page (or on any successor or
substitute page) at approximately 11:00 a.m. London time on such day (without any rounding) for a
one month interest period.



     “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.



     “Loan Documents” means this Agreement, the Guaranty Agreement, and all other
certificates, agreements and other documents or instruments now or hereafter executed and/or
delivered pursuant to or in connection with the foregoing.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 12




 









 








     “Loan Obligations” means all obligations, indebtedness, and liabilities of the
Borrower or any Subsidiaries, or any one of them, to the Administrative Agent and the Lenders
arising pursuant to any of the Loan Documents, whether now existing or hereafter arising, whether
direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several,
or joint and several, including the obligation of the Borrower or any Subsidiaries to repay the
Loans, the LC Disbursements, interest on the Loans and LC Disbursements, and all fees, costs, and
expenses (including attorneys’ fees and expenses) provided for in the Loan Documents.



     “Loan Parties” means the Borrower and the Subsidiary Guarantors.



     “Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.



     “Material Adverse Effect” means a material adverse effect on (a) the business,
operations, affairs, financial condition, assets or properties of the Borrower and the Subsidiaries
taken as a whole, (b) the ability of any Loan Party to perform its obligations under the Loan
Documents to which it is a party or (c) the rights of or benefits available to the Administrative
Agent, the Issuing Bank, or any Lender.



     “Material Indebtedness” means Indebtedness (other than the Loans and Letters of Credit
but including Receivable Securitization Outstandings and obligations in respect of one or more Swap
Agreements) of any one or more of the Borrower and its Subsidiaries in an aggregate principal
amount exceeding $75,000,000.



     “Material Subsidiary” means any Subsidiary of the Borrower (except LPAC Corp., Lake
Park Insurance, Ltd., and any Excluded Foreign Subsidiary), the book value (as determined in
accordance with GAAP) of whose total assets equals or exceeds ten percent (10%) of the book value
(determined in accordance with GAAP) of the consolidated total assets of the Borrower and all of
its Subsidiaries as determined as of the last day of each fiscal quarter of the Borrower.



     “Maximum Rate” has the meaning assigned to such term in Section 10.13(a).



     “Moody’s” means Moody’s Investors Service, Inc.



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



     “New Lender” has the meaning assigned to such term in Section 2.19.



     “Obligations” means all Loan Obligations, the Swap Obligations and all Deposit
Obligations.



     “Other Taxes” means 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 under any
Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any
Loan Document.



     “Participant” has the meaning set forth in Section 10.04.



     “Participating Member State” means any member state of the European Communities that
adopts or has adopted the euro as its lawful currency in accordance with legislation of the
European Community relating to Economic and Monetary Union.



     “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



     “Permitted Encumbrances” means:



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 13




 









 









     (a) Liens imposed by law for taxes that are not yet due or are being contested
in compliance with Section 5.04;




     (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other
like Liens imposed by law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 60 days or are being contested in
compliance with Section 5.04;




     (c) pledges and deposits made in the ordinary course of business in compliance
with workers’ compensation and other casualty-related insurance programs,
unemployment insurance, employer’s health tax, other social security laws or
regulations, or retirement benefits (including, pledges or deposits or similar Liens
securing liabilities to insurance carriers under insurance or self-insurance
arrangements in the ordinary course);




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




     (e) judgment Liens in respect of judgments that do not constitute an Event of
Default under clause (k) of Article VIII;




     (f) easements, zoning restrictions, leases or subleases granted to others in
the ordinary course of business and covering only the assets so leased,
rights-of-way, restrictive covenants, and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected
property or interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;




     (g) Liens arising from filing UCC financing statements regarding leases
permitted by this Agreement;




     (h) leases or subleases entered into by Borrower or a Subsidiary in good faith
with respect to its property not used in its business and which do not materially
interfere with the ordinary conduct of business of the Borrower or any Subsidiary;




     (i) statutory and common law landlords’ liens under leases to which Borrower or
one of the Subsidiaries is a party; and




     (j) customary Liens (including the right of set-off) in favor of banking
institutions encumbering deposits held by such banking institutions incurred in the
ordinary course of business.


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




     “Permitted Investments” means:




     (a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States of America (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States of America), in each case maturing within one year from
the date of acquisition thereof;



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 14




 









 









     (b) investments in commercial paper maturing within 270 days from the date of
acquisition thereof and having, at such date of acquisition, one of the two highest
credit ratings obtainable from S&P or from Moody’s;




     (c) investments in certificates of deposit, banker’s acceptances and time
deposits maturing within one year from the date of acquisition thereof issued or
guaranteed by or placed with, and money market deposit accounts issued or offered
by, any domestic office of any commercial bank organized under the laws of the
United States of America or any State thereof which has a combined capital and
surplus and undivided profits of not less than $500,000,000;




     (d) fully collateralized repurchase agreements with a term of not more than 30
days for securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above;




     (e) money market funds that (i) comply with the criteria set forth in
Securities and Exchange Commission Rule 2a—7 under the Investment Company Act of
1940, (ii) are rated AAA by S&P and Aaa by Moody’s and (iii) have portfolio assets
of at least $5,000,000,000; and




     (f) in the case of any Foreign Subsidiary, investments that are substantially
similar to those described above.



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



     “Plan” means any employee pension benefit 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 the Borrower or any ERISA Affiliate 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.



     “Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, National Association as its prime rate in effect at its principal office in
New York City; each change in the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.



     “Prior Assets” means assets that have been disposed of by a division or branch of
Borrower or a Subsidiary in a transaction with an unaffiliated third party approved in accordance
with this Agreement which would not make the seller a “Prior Company” but constitute all or
substantially all of the assets of such division or branch for which the total consideration to be
paid exceeds $25,000,000.



     “Prior Company” means any Subsidiary whose capital stock or other equity interests
have been disposed of, or all or substantially all of whose assets have been disposed of, in each
case, in a transaction with an unaffiliated third party approved in accordance with this Agreement
for which the total consideration to be paid exceeds $25,000,000.



     “Prior Credit Agreement” has the meaning assigned to such term in the Recitals.



     “Prior Target” means all targets acquired or whose assets have been acquired in an
acquisition permitted by Section 6.04 for which the total consideration to be paid exceeds
$25,000,000.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 15






 









 








     “Receivable Securitization Facility” means, with respect to the Borrower or any
Subsidiary, a transaction or group of transactions typically referred to as a securitization in
which the Borrower or such Subsidiary sells its accounts receivable in a transaction accounted for
as a true sale to a special purpose bankruptcy remote entity that obtains debt financing to finance
the purchase price.



     “Receivable Securitization Outstandings” means the aggregate amount outstanding (i.e.,
advanced as the purchase price and not repaid from collections) under all Receivable Securitization
Facilities of the Borrower and its Subsidiaries that is representative of the principal amount that
would be outstanding if such Receivable Securitization Facilities were accounted for as financings.



     “Register” has the meaning set forth in Section 10.04.



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



     “Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) having
Revolving Exposures and unused Commitments representing more than 50.00% of the sum of the total
Revolving Exposures and unused Commitments at such time.



     “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity Interests in the Borrower or any Subsidiary.



     “Revolving Availability Period” means the period from and including the Effective Date
to but excluding the earlier of the Revolving Maturity Date and the date of termination of the
Revolving Commitments.



     “Revolving Commitment” means, with respect to each Lender, the commitment, if any, of
such Lender to make Revolving Loans and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum aggregate amount of such
Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.08, (b) increased from time to time pursuant to an Increased Commitment
Supplement, and (c) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 10.04. The initial amount of each Lender’s Revolving Commitment is set
forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Revolving Commitment or in the Increased Commitment Supplement pursuant to which
such Lender shall have become a Lender, as applicable. As of the Effective Date, the aggregate
amount of the Lenders’ Revolving Commitments is $650,000,000.



     “Revolving Exposure” means, with respect to any Lender at any time, the sum of the
outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.



     “Revolving Lender” means a Lender with a Revolving Commitment or, if the Revolving
Commitments have terminated or expired, a Lender with Revolving Exposure.



     “Revolving Loan” means a Loan made pursuant to Section 2.01 hereof or pursuant to
Section 2.01(a) of the Prior Credit Agreement that remains outstanding on the Effective Date.



     “Revolving Maturity Date” means October 21, 2016.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 16




 









 








     “S&P” means Standard & Poor’s Rating Services, a division of the McGraw Hill
Companies.



     “Secured Parties” means the Administrative Agent, the Lenders and each Affiliate of a
Lender who is owed any portion of the Obligations.



     “Senior Unsecured Notes” means those 4.90% notes due 2017 issued pursuant to that
certain First Supplemental Indenture dated as of May 6, 2010 among the Borrower, as issuer, certain
of the Subsidiaries, as guarantors, and U.S. Bank National Association, as trustee.



     “Spot Rate” means, with respect to any day, the rate determined on such date on the
basis of the offered exchange rates, as reflected in the foreign currency exchange rate display of
the Reuters Group (or on any successor or substitute page, or any successor to or substitute for
Reuters Group, providing exchange rate quotations comparable to those currently provided by the
Reuters Group on such page, as determined by the Administrative Agent from time to time) at or
about 10:00 a.m. (Dallas, Texas time), to purchase Dollars with the other applicable currency,
provided that, if at least two such offered rates appear on such display, the rate shall be the
arithmetic mean of such offered rates and, if no such offered rates are so displayed, the Spot Rate
shall be determined by the Administrative Agent on the basis of the arithmetic mean of such offered
rates as determined by the Administrative Agent in accordance with its normal practice.



     “Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentages (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to Regulation D of the Board. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
of the Board or any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve percentage.



     “subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.



     “Subsidiary” means any subsidiary of the Borrower.



     “Subsidiary Guarantor” means each Subsidiary of the Borrower (other than an Excluded
Foreign Subsidiary) that is party to the Guaranty Agreement.



     “Swap Agreement” means 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



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 17




 









 







only on account of services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement. For the avoidance of
doubt, agreements relating to accelerated share repurchase programs, and similar programs or
arrangements, shall not be considered Swap Agreements.




     “Swap Obligations” means all obligations, indebtedness, and liabilities of the
Borrower or any Subsidiaries, or any one of them, to any Lender or any Affiliate of any Lender,
arising pursuant to any Swap Agreements entered into by such Lender or Affiliate with the Borrower
or any Subsidiaries, or any one of them, whether now existing or hereafter arising, whether direct,
indirect, related, unrelated, fixed, contingent, liquidated, unliquidated, joint, several, or joint
and several, including all fees, costs, and expenses (including attorneys’ fees and expenses)
provided for in such Swap Agreements.



     “Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.



     “Swingline Lender” means JPMorgan Chase Bank, National Association, in its capacity as
lender of Swingline Loans hereunder.



     “Swingline Loan” means a Loan made pursuant to Section 2.04.



     “Synthetic Lease” has the meaning ascribed to such term in the definition of “EBITDA”
hereunder.



     “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.



     “Total Indebtedness” means, at the time of determination, the sum of the following
determined for Borrower and the Subsidiaries on a consolidated basis (without duplication): (a)
the outstanding principal amount of all obligations for borrowed money (including the Loan
Obligations and the Receivable Securitization Outstandings) including all such obligations
evidenced by bonds, notes, debentures, or other similar instruments; plus (b) all
obligations of such Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (c) all obligations of such Person in respect of the deferred
purchase price of property or services (excluding accounts payable incurred in the ordinary course
of business); plus (d) all obligations of others secured by (or for which the holder of
such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the obligations secured thereby have been
assumed (provided that for purposes of this clause (d) the amount of any such Indebtedness shall be
deemed not to exceed the higher of the market value or the book value of such assets), plus
(e) all Capital Lease Obligations; plus (f) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of guaranty (but
excluding obligations in respect of (1) trade or commercial letters of credit issued for the
account of such Person in the ordinary course of business and (2) stand-by letters of credit issued
to support obligations of such Person that are not of the type described in any of clauses (a)
through (c) and (e) of this definition); plus (h) all obligations, contingent or otherwise,
of such Person in respect of bankers’ acceptances.



     “Transactions” means the execution, delivery and performance by each Loan Party of the
Loan Documents to which it is to be a party, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 18






 









 








     “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate, the Alternate Base Rate, or the Eurodollar Daily Floating Rate.



     “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 Part I of
Subtitle E of Title IV of ERISA.



     Section 1.02. Classification of Loans and Borrowings. For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or by Type (e.g., a
“Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Revolving Loan”). Borrowings also may
be classified and referred to by Class (e.g., a “Revolving Borrowing”) or by Type (e.g., a
“Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Revolving Borrowing”).



     Section 1.03. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified (subject to any
restrictions on such amendments, restatements, supplements or other modifications set forth
herein), (b) any reference herein to any Person shall be construed to include such Person’s
successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and
(e) the words “asset” and “property” shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.



     Section 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that, if after the date hereof there occurs any change in GAAP
or in the application thereof on the operation of any provision hereof and the Borrower notifies
the Administrative Agent that the Borrower requests an amendment to any provision hereof to
eliminate the effect of such change in GAAP or in the application thereof (or if the
Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be interpreted on the
basis of GAAP as in effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in accordance herewith.



     Section 1.05. Conversion of Foreign Currencies.



          (a) Dollar Equivalents. The Administrative Agent may determine the Dollar Amount of
any amount as required hereby, and a determination thereof by the Administrative Agent shall be
conclusive absent manifest error. The Administrative Agent may, but shall not be obligated to,
rely on any determination of any Dollar Amount by the Borrower. The Administrative Agent may
determine or redetermine the Dollar Amount of any amount on any date either in its own discretion
or upon the request of any Lender, including the Dollar Amount of any Letter of Credit made or
issued in any foreign currency.




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 19






 









 








          (b) Rounding-Off. The Administrative Agent may set up appropriate rounding-off
mechanisms or otherwise round-off amounts hereunder to the nearest higher or lower amount in whole
Dollars, Australian Dollars, Euros, whole other currency or smaller denomination thereof to ensure
amounts owing by any party hereunder or that otherwise need to be calculated or converted hereunder
are expressed in whole Dollars, whole Australian Dollars, whole Euros, whole other currency or in
whole smaller denomination thereof, as may be necessary or appropriate.




ARTICLE II.




The Credits



     Section 2.01. Commitments. Subject to the terms and conditions set forth herein, each
Revolving Lender agrees to make advances in Dollars to the Borrower from time to time during the
Revolving Availability Period in an aggregate principal amount that will not result in such
Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay
and reborrow Revolving Loans.



     Section 2.02. Loans and Borrowings.



          (a) Loans Made Ratably. Each Loan (other than a Swingline Loan) shall be made as part
of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in
accordance with their respective Commitments of the applicable Class. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.




          (b) Loan Types. Subject to Section 2.13, each Revolving Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each
Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such option shall
not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this
Agreement.




          (c) Minimum Amounts; Limitation on Eurodollar Borrowings. At the commencement of each
Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that
is an integral multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR
Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral
multiple of $1,000,000 and not less than $5,000,000; provided that an ABR Revolving
Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total
Revolving Commitments or that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount that is an integral
multiple of $500,000 and not less than $1,000,000. Borrowings of more than one Type and Class may
be outstanding at the same time; provided that there shall not at any time be more than a
total of ten Eurodollar Borrowings outstanding.




          (d) Limitation on Interest Periods. Notwithstanding any other provision of this
Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after the Revolving
Maturity Date.




     Section 2.03. Requests for Borrowings. To request a Revolving Borrowing, the Borrower
shall notify the Administrative Agent of such request by telephone (a) in the case of a Eurodollar
Borrowing,



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not later than 12:00 noon, Dallas, Texas time, three Business Days before the date of the
proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 noon, Dallas, Texas
time on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Borrowing Request in the form attached hereto as Exhibit E or in such other form
as may be approved by the Administrative Agent and signed by the Borrower. Each such telephonic
and written Borrowing Request shall specify the following information in compliance with Section
2.02:




               (i) the aggregate amount of such Borrowing;



               (ii) the date of such Borrowing, which shall be a Business Day;



               (iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;



               (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the term “Interest Period”; and



               (v) the location and number of the Borrower’s account to which funds are to be disbursed,
which shall comply with the requirements of Section 2.06.


If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Revolving Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration. Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount
of such Lender’s Loan to be made as part of the requested Borrowing.




     Section 2.04. Swingline Loans.



          (a) Commitment. Subject to the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans denominated in Dollars to the Borrower from time to time
during the Revolving Availability Period, in an aggregate principal amount at any time outstanding
that will not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$65,000,000 or (ii) the sum of the total Revolving Exposures exceeding the total Revolving
Commitments; provided that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.




          (b) Borrowing Procedure. To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not later than 12:00
noon, Dallas, Texas time, on the day of a proposed Swingline Loan. Each such notice shall be
irrevocable and shall specify the requested date (which shall be a Business Day), amount of the
requested Swingline Loan, and whether such Swingline Loan will accrue interest based on the
Alternate Base Rate or the Eurodollar Daily Floating Rate. The Administrative Agent will promptly
advise the Swingline Lender of any such notice received from the Borrower. The Swingline Lender
shall make each Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender or by wire transfer, automated clearing
house debit or interbank transfer to such other account, accounts or Person designated by the
Borrower (or, in the case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the Issuing Bank) by 3:00 p.m.,
Dallas, Texas time, on the requested date of such Swingline Loan.




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          (c) Revolving Lender Participation in Swingline Loans. The Swingline Lender may by
written notice given to the Administrative Agent not later than 10:00 a.m., Dallas, Texas time, on
any Business Day require the Revolving Lenders to acquire participations on such Business Day in
all or a portion of the Swingline Loans outstanding. Such notice shall specify the aggregate
amount of Swingline Loans in which Revolving Lenders will participate. Promptly upon receipt of
such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying
in such notice such Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Revolving
Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to
pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable
Percentage of such Swingline Loan or Loans. Each Revolving Lender acknowledges and agrees that its
obligation to acquire participations in Swingline Loans pursuant to this Section 2.04(c) is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
Each Revolving Lender shall comply with its obligation under this Section 2.04(c) by wire transfer
of immediately available funds, in the same manner as provided in Section 2.06 with respect to
Loans made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to
the Swingline Lender the amounts so received by it from the Revolving Lenders. The Administrative
Agent shall notify the Borrower of any participations in any Swingline Loan acquired pursuant to
this Section 2.04(c), and thereafter payments in respect of such Swingline Loan shall be made to
the Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline
Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan
after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that shall
have made their payments pursuant to this Section 2.04(c) and to the Swingline Lender, as their
interests may appear; provided that any such payment so remitted shall be repaid to the Swingline
Lender or to the Administrative Agent, as applicable, if and to the extent such payment is required
to be refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this Section 2.04(c) shall not relieve the Borrower of any default in the payment
thereof.




     Section 2.05. Letters of Credit.



          (a) General. Subject to the terms and conditions set forth herein, the Borrower may
request the issuance of Letters of Credit for its own account, denominated in Dollars, Australian
Dollars or Euros, in a form reasonably acceptable to the Administrative Agent and the Issuing Bank,
at any time and from time to time during the Revolving Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control.




          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance, amendment, renewal
or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance, amendment, renewal
or extension (which date shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of
Credit, the currency in which such Letter of Credit will be denominated (which must be either
Dollars, Australian Dollars or Euros), the




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name and address of the beneficiary thereof and such other information as shall be necessary
to prepare, amend, renew or extend such Letter of Credit. Any Issuing Bank (other than JPMorgan
Chase Bank, National Association and its affiliates) shall promptly notify the Administrative Agent
in writing of any Letter of Credit issued for the account of the Borrower. If requested by the
Issuing Bank, the Borrower also shall submit a letter of credit application on the Issuing Bank’s
standard form in connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of
each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving
effect to such issuance, amendment, renewal or extension (i) the LC Exposure shall not exceed a
Dollar Amount equal to the total Revolving Commitments and (ii) the total Revolving Exposures shall
not exceed the total Revolving Commitments.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit and (ii) the date that is five Business Days prior to the Revolving Maturity Date; provided
that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for
additional one-year periods not to extend past the date in the preceding clause (ii) and (B) any
Letter of Credit may have an expiration date that extends past the date in clause (ii) if the
Borrower has, on the date of issuance of such Letter of Credit, deposited in an account with the
Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing
Bank for such Letter of Credit, an amount in Dollars equal to 105% of the LC Exposure for such
Letter of Credit in accordance with the terms of Section 2.05(j).




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of the
Issuing Bank or the Lenders, the Issuing Bank hereby grants to each Revolving Lender, and each
Revolving Lender hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under
such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of
the Issuing Bank, such Lender’s Applicable Percentage of the Dollar Amount of each LC Disbursement
in Dollars made by the Issuing Bank and not reimbursed by the Borrower on the date due as provided
in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the
Borrower for any reason. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this Section 2.05(d) in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including any amendment,
renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall be made without any
offset, abatement, withholding or reduction whatsoever. Any participation funded under this
Section 2.05(d) shall be converted to Dollar ABR Loans.




          (e) Reimbursement. If the Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement in the currency in which such Letter of Credit is
denominated not later than 12:00 noon, Dallas, Texas time (or with respect to LC Disbursements not
denominated in Dollars, 12:00 noon, London, England time), on the date that such LC Disbursement is
made, if the Borrower shall have received notice of such LC Disbursement prior to 10:00 a.m.,
Dallas, Texas time (or with respect to LC Disbursements not denominated in Dollars, 12:00 noon,
London, England time), on such date, or, if such notice has not been received by the Borrower prior
to such time on such date, then not later than 12:00 noon, Dallas, Texas time (or with respect to
LC Disbursements not denominated in Dollars, 12:00 noon, London, England time), on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to 12:00 noon, Dallas,
Texas time (or with respect to LC Disbursements not denominated in Dollars, 12:00 noon, London,
England time), on the day of receipt, or (ii) the Business Day immediately following the day that
the Borrower receives such notice, if such




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notice is not received prior to such time on the day of receipt; provided that the
Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with
Sections 2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan. If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of
such notice, each Revolving Lender shall pay to the Administrative Agent in Dollars its Applicable
Percentage of the Dollar Amount of the payment then due from the Borrower, in the same manner as
provided in Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this Section 2.05(e), the Administrative Agent shall distribute such payment
to the Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this
Section 2.05(e) to reimburse the Issuing Bank, then to such Lenders and the Issuing Bank as their
interests may appear. Any payment made by a Revolving Lender pursuant to this Section 2.05(e) to
reimburse the Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans
or a Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement. After receipt of any payments from
the Revolving Lenders under this Section 2.05(e), the Borrower’s obligation to reimburse such LC
Disbursement, if originally denominated in a currency other than Dollars, shall convert to a Dollar
denominated obligation in a Dollar Amount calculated as of date the payments by the Revolving
Lenders are received and any future payments by the Borrower in respect thereof shall be made in
Dollars.




          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section, constitute a legal or equitable discharge of, or provide a right of setoff against,
the Borrower’s obligations hereunder. Neither the Administrative Agent, the Lenders nor the
Issuing Bank, nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the Issuing Bank;
provided that the foregoing shall not be construed to excuse the Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential damages,
claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable
law) suffered by the Borrower that are caused by the Issuing Bank’s failure to exercise care when
determining whether drafts and other documents presented under a Letter of Credit comply with the
terms thereof. The parties hereto expressly agree that, in the absence of gross negligence or
willful misconduct on the part of the Issuing Bank (as finally determined by a court of competent
jurisdiction), the Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the parties agree
that, with




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 24





 









 







respect to documents presented which appear on their face to be in substantial compliance with
the terms of a Letter of Credit, the Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment upon such documents
if such documents are not in strict compliance with the terms of such Letter of Credit.




          (g) Disbursement Procedures. The Issuing Bank shall, promptly following its receipt
thereof, examine all documents purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether the Issuing Bank has made
or will make an LC Disbursement thereunder; provided that any failure to give or delay in
giving such notice shall not relieve the Borrower of its obligation to reimburse the Issuing Bank
and the Revolving Lenders with respect to any such LC Disbursement.




          (h) Interim Interest. If the Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12 (c) shall apply. Interest accrued pursuant to this Section 2.05(h)
shall be for the account of the Issuing Bank, except that interest accrued on and after the date of
payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.




          (i) Replacement of the Issuing Bank. The Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.11(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank
shall have all the rights and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank”
shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing
Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be required to issue additional
Letters of Credit.




          (j) Cash Collateralization. If any Event of Default exists, on the Business Day that
the Borrower receives notice from the Administrative Agent or the Required Lenders (or, if the
maturity of the Loans has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Lenders, an amount in Dollars equal to the LC
Exposure as of such date plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately, and such deposit
shall become immediately due and payable, without demand or other notice of any kind, upon the
occurrence of any Event of Default with respect to the Borrower described in clause (h) or (i) of
Article VIII. Each such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Borrower under this Agreement and the Borrower
will, in connection therewith, execute and deliver such security




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 25




 









 







and pledge agreements in form and substance satisfactory to the Administrative Agent which the
Administrative Agent may, in its discretion, require. The Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which investments shall be made
at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and
expense, such deposits shall not bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by the Administrative
Agent to reimburse the Issuing Bank for LC Disbursements for which it has not been reimbursed and,
to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations
of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure), be applied to satisfy other Obligations and the Borrower will,
in connection therewith, execute and deliver such security and pledge agreements in form and
substance satisfactory to the Administrative Agent which the Administrative Agent may, in its
discretion, require. If the Borrower is required to provide an amount of cash collateral hereunder
as a result of the occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after all Events of Default
have been cured or waived.




     Section 2.06. Funding of Borrowings.



          (a) By Lenders. Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds in Dollars by 12:00 noon,
Dallas, Texas time, to the account of the Administrative Agent most recently designated by it for
such purpose by notice to the Lenders; provided that Swingline Loans shall be made as
provided in Section 2.04. The Administrative Agent will make such Loans available to the Borrower
by promptly crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent or by wire transfer, automated clearing house debit or
interbank transfer to such other account, accounts or Persons designated by the Borrower in the
applicable Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the Issuing Bank.




          (b) Fundings Assumed Made. Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may
assume that such Lender has made such share available on such date in accordance with paragraph (a)
of this Section and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount
with interest thereon, for each day from and including the date such amount is made available to
the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case
of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included
in such Borrowing.




     Section 2.07. Interest Elections.



          (a) Conversion and Continuation. Each Revolving Borrowing initially shall be of the
Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may




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elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the
case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this
Section. The Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing. This Section shall not apply to Swingline Borrowings, which may
not be converted or continued.




          (b) Delivery of Interest Election Request. To make an election pursuant to this
Section, the Borrower shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the Borrower were requesting
a Borrowing of the Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in the form of Exhibit F hereto and signed by the Borrower.




          (c) Contents of Interest Election Request. Each telephonic and written Interest
Election Request shall specify the following information in compliance with Section 2.02 and
paragraph (f) of this Section:




               (i) the Borrowing to which such Interest Election Request applies and, if different options
are being elected with respect to different portions thereof, the portions thereof to be allocated
to each resulting Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);



               (ii) the effective date of the election made pursuant to such Interest Election Request, which
shall be a Business Day;



               (iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and



               (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period contemplated by
the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d) Notice to the Lenders. Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details thereof and of such
Lender’s portion of each resulting Borrowing.




          (e) Automatic Conversion. If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable
thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing.




          (f) Limitations on Election. Notwithstanding any contrary provision hereof, if an
Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so
notifies the Borrower, then, so long as an Event of Default is continuing (i) no outstanding
borrowing may be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each
Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period
applicable thereto. A Borrowing of any Class may not be converted to or continued as a Eurodollar
Borrowing if after giving




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effect thereto (i) the Interest Period therefor would commence before and end after a date on
which any principal of the Loans of such Class is scheduled to be repaid and (ii) the sum of the
aggregate principal amount of outstanding Eurodollar Borrowings of such Class with Interest Periods
ending on or prior to such scheduled repayment date plus the aggregate principal amount of
outstanding ABR Borrowings of such Class would be less than the aggregate principal amount of Loans
of such Class required to be repaid on such scheduled repayment date.




     Section 2.08. Termination and Reduction of Commitments.



          (a) Termination Date. Unless previously terminated, the Revolving Commitments shall
terminate on the Revolving Maturity Date.




          (b) Optional Termination or Reduction. The Borrower may at any time terminate, or
from time to time reduce, the Commitments of any Class; provided that (i) each reduction
of the Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000
and not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the Revolving
Commitments if, after giving effect to any concurrent prepayment of the Revolving Loans in
accordance with Section 2.10, the sum of the Revolving Exposures would exceed the total Revolving
Commitments.




          (c) Notice of Termination or Reduction. The Borrower shall notify the Administrative
Agent of any election to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof. Promptly following receipt of any notice, the
Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Revolving Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of any specified event, in which case such notice may be revoked
by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date)
if such event shall not have occurred. Any termination or reduction of the Commitments of any
Class shall be permanent. Each reduction of the Commitments of any Class shall be made ratably
among the Lenders in accordance with their respective Commitments of such Class.




     Section 2.09. Repayment of Loans; Evidence of Debt.



          (a) Promise to Pay. The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Revolving Lender the then unpaid principal amount of
each Revolving Loan of such Lender on the Revolving Maturity Date, and (ii) to the Swingline Lender
the then unpaid principal amount of each Swingline Loan on the Revolving Maturity Date.




          (b) Lender Records. Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from
each Loan made by such Lender, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.




          (c) Administrative Agent Records. The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the
amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and
each Lender’s share thereof.




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          (d) Prima Facie Evidence. The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the existence
and amounts of the obligations recorded therein; provided that the failure of any Lender or
the Administrative Agent to maintain such accounts or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans in accordance with the terms of this
Agreement. In the event of any conflict between the account and records maintained by any Lender
and the accounts and records of the Administrative Agent in respect of such matters, the accounts
and records maintained by the Administrative Agent shall control in the absence of manifest error.




          (e) Request for a Note. Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the Administrative Agent shall prepare a promissory
note which the Borrower shall execute and deliver to the requesting Lender (or, if requested by
such Lender, to such Lender and its registered assigns). Thereafter, the Loans evidenced by such
promissory note and interest thereon shall at all times (including after assignment pursuant to
Section 10.04) be represented by one or more promissory notes in such form payable to the order of
the payee named therein (or, if such promissory note is a registered note, to such payee and its
registered assigns).




     Section 2.10. Prepayment of Loans.



          (a) Optional Prepayment. The Borrower shall have the right at any time and from time
to time to prepay any Borrowing in whole or in part, without prepayment penalty or premium subject
to the requirements of this Section and Section 2.15.




          (b) Mandatory Prepayment of Revolving Loans. In the event and on such occasion that
the sum of the Revolving Exposures exceeds the total Revolving Commitments, the Borrower shall
prepay Revolving Borrowings or Swingline Borrowings (or, if no such Borrowings are outstanding,
deposit cash collateral in an account with the Administrative Agent pursuant to Section 2.05(j)) in
an aggregate amount equal to such excess.




          (c) Selection of Borrowing to be Prepaid. Prior to any optional or mandatory
prepayment of Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be
prepaid and shall specify such selection in the notice of such prepayment pursuant to paragraph (d)
of this Section.




          (d) Notice of Prepayment; Application of Prepayments. The Borrower shall notify the
Administrative Agent (and, in the case of prepayment of a Swingline Loan, the Swingline Lender) by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of a
Eurodollar Borrowing, not later than 12:00 noon, Dallas, Texas time, three Business Days before the
date of prepayment, (ii) in the case of prepayment of an ABR Borrowing or a Swingline Loan, not
later than 12:00 noon, Dallas, Texas time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each Borrowing or
portion thereof to be prepaid and, in the case of a mandatory prepayment, a reasonably detailed
calculation of the amount of such prepayment; provided that, if a notice of optional
prepayment is given in connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.08, then such notice of prepayment may be revoked if such
notice of termination is revoked in accordance with Section 2.08; provided,
further, that the Borrower may rescind any such notice if such notice stated in writing
that it was conditioned on the occurrence of a specified event and such event shall not have
occurred. Promptly following receipt of any such notice (other than a notice relating solely to
Swingline Loans), the Administrative Agent shall advise the Lenders of the contents thereof. Each
partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02, except as necessary to apply
fully the required amount of a mandatory prepayment. Each prepayment of a Borrowing shall be
applied ratably to the




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 29




 









 







Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest
to the extent required by Section 2.12.




     Section 2.11. Fees.



          (a) Commitment Fees. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable Rate on the average
daily unused amount of each Commitment of such Lender during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates. Accrued commitment
fees shall be payable in arrears on the date which is three Business Days following the last day of
each March, June, September and December of each year and on the date on which the Revolving
Commitments terminate, commencing on the first such date to occur after the date hereof. All
commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day). For purposes
of computing commitment fees with respect to Revolving Commitments, a Revolving Commitment of a
Lender shall be deemed to be used to the extent of the outstanding Revolving Loans and LC Exposure
of such Lender (and the Swingline Exposure of such Lender shall be disregarded for such purpose).




          (b) Letter of Credit Fees. The Borrower agrees to pay in Dollars (i) to the
Administrative Agent for the account of each Revolving Lender a participation fee with respect to
its participations in Letters of Credit, which shall accrue at the same Applicable Rate as interest
on Eurodollar Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which such Lender’s
Revolving Commitment terminates and the date on which such Lender ceases to have any LC Exposure,
and (ii) to the Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum on
the average daily amount of the LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Commitments and the date on which
there ceases to be any LC Exposure, as well as the Issuing Bank’s standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings
thereunder. Participation fees shall be payable on the third Business Day following the last day
of each March, June, September and December of each year commencing on the first such date to occur
after the Effective Date; provided that all such fees shall be payable on the date on which
the Revolving Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Fronting fees accrued through and
including the last day of March, June, September and December of each year shall be payable on the
third Business Day following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on which the
Revolving Commitments terminate and any such fees accruing after the date on which the Revolving
Commitments terminate shall be payable on demand. Any other fees payable to the Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).




          (c) Administrative Agent Fees. The Borrower agrees to pay to the Administrative
Agent, for its own account, fees payable in the amounts and at the times separately agreed in
writing upon between the Borrower and the Administrative Agent.




          (d) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing Bank, in the case of
fees




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 30




 









 







payable to it) for distribution, in the case of commitment fees and participation fees, to the
Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.




     Section 2.12. Interest.



          (a) ABR Borrowings. The Revolving Loans comprising each ABR Borrowing shall bear
interest at the Alternate Base Rate plus the Applicable Rate.




          (b) Eurodollar Borrowings. The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing plus the
Applicable Rate.




          (c) Swingline Borrowings. In accordance with Section 2.04(b), the Borrower may elect
for a Swingline Loan to bear interest at either (a) the Alternate Base Rate plus the Applicable
Rate or (b) the Eurodollar Daily Floating Rate plus the Applicable Rate.




          (d) Default Interest. Notwithstanding the foregoing, subject to Section 10.13, if any
principal of or interest on any Loan or any fee or other amount payable by the Borrower hereunder
is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such
Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other
amount, 2% plus the rate applicable to ABR Revolving Loans as provided in paragraph (a) of
this Section. In addition, if any Event of Default exists and the Required Lenders request, the
outstanding principal amount of the Loans shall bear interest, after as well as before judgment, as
a rate per annum equal to 2% plus the rate otherwise applicable to such Loan as provided in the
preceding paragraphs of this Section.




          (e) Payment of Interest. Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the Revolving Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section shall be
payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving Availability Period), accrued
interest on the principal amount repaid or prepaid shall be payable on the date of such repayment
or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of
the current Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.




          (f) Computation. All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate and Eurdollar Daily Floating Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.




     Section 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:



          (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO
Rate for such Interest Period; or




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 31





 











 





          (b) the Administrative Agent is advised by the Required Lenders that they have determined
in good-faith that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone, or telecopy or other electronic transmission approved by the Administrative Agent as
promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and
the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or continuation of any
Borrowing as, a Eurodollar Borrowing shall be ineffective and (ii) if any Borrowing Request
requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing. The Required
Lenders shall provide the Borrower with documentation which reasonably supports their determination
referenced in the foregoing clause (b) promptly upon the Borrower’s request to the Administrative
Agent therefor.




     Section 2.14. Increased Costs.



          (a) Change In Law. If any Change in Law shall:




               (i) impose, modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by, any Lender (except
any such reserve requirement reflected in the Adjusted LIBO Rate) or the Issuing Bank; or



               (ii) impose on any Lender or the Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit
or participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
the Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or the Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or the Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.




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




          (c) Delivery of Certificate. A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing Bank or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be
delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or the




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 32






 









 







Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof.




          (d) Limitation on Compensation. Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such
Lender’s or the Issuing Bank’s right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or the Issuing Bank pursuant to this Section
for any increased costs or reductions incurred more than 90 days prior to the date that such Lender
or the Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to
such increased costs or reductions and of such Lender’s or the Issuing Bank’s intention to claim
compensation therefor; provided further that, if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the 90-day period referred to above shall
be extended to include the period of retroactive effect thereof.




     Section 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Revolving Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(d) and is
revoked in accordance therewith), or (d) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by the Borrower
pursuant to Section 2.18, then, in any such event, the Borrower shall compensate each Lender for
the loss, cost and expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount determined by such Lender
to be the excess, if any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for
the period that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the interest rate which
such Lender would bid were it to bid, at the commencement of such period, for dollar deposits of a
comparable amount and period from other banks in the eurodollar market. A certificate of any
Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.



     Section 2.16. Taxes.



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




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




          (c) Tax Indemnification. The Borrower shall indemnify the Administrative Agent, each
Lender and the Issuing Bank, within 10 Business Days after written demand therefor, for the full



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 33


 









 







amount of any Indemnified Taxes paid by the Administrative Agent, such Lender or the Issuing Bank,
as the case may be, on or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender or
the Issuing Bank, stating the amount of any Indemnified Taxes so paid or payable by the Lender,
Issuing Bank or Administrative Agent and describing the basis for the indemnification claim with
reasonably supporting documentation or by the Administrative Agent on its own behalf or on behalf
of a Lender or the Issuing Bank, shall be conclusive absent manifest error.




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




          (e) Status of Lenders.




               (i) Any Lender that is entitled to an exemption from or reduction of withholding tax under
applicable law 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, such properly
completed and executed documentation prescribed by applicable law or reasonably requested by the
Borrower or Administrative Agent, as will permit such payments to be made without withholding or at
a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or
the Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements. Notwithstanding anything to the contrary in the preceding two
sentences, the completion, execution and submission of such documentation (other than such
documentation set forth in Section 2.16(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if
in the Lender’s reasonable judgment such completion, execution or submission would subject such
Lender to any material unreimbursed cost or expense or would materially prejudice the legal or
commercial position of such Lender.



               (ii) Without limiting the generality of the foregoing,



                    (A) any Lender that is a U.S. person (within the meaning of Section 7701(a)(3) of the Code)
shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such
Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable
request of the Borrower or the Administrative Agent), executed originals of IRS Form W-9 certifying
that such Lender is exempt from U.S. federal backup withholding tax;



                    (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), whichever of the following is applicable:



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 34


 









 





                         (I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the
United States is a party (x) with respect to payments of interest under any Loan Document, executed
originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal
withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any
other applicable payments under any Loan Document, IRS Form W-8BEN establishing an exemption from,
or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income”
article of such tax treaty;



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



                         (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit
I-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section
881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section
881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C)
of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or



                         (IV) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS
Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate
substantially in the form of Exhibit I-2 or Exhibit I-3, IRS Form W-9, and/or other certification
documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a
partnership and one or more direct or indirect partners of such Foreign Lender are claiming the
portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate
substantially in the form of Exhibit I-4 on behalf of each such direct and indirect partner;



                    (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the
Borrower and the Administrative Agent (in such number of copies as shall be requested by the
recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this
Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the
Administrative Agent), executed originals of any other form prescribed by applicable law as a basis
for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed,
together with such supplementary documentation as may be prescribed by applicable law to permit the
Borrower or the Administrative Agent to determine the withholding or deduction required to be made;
and



                    (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the
time or times prescribed by law and at such time or times reasonably requested by the Borrower or
the Administrative Agent such documentation prescribed by applicable law (including as prescribed
by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by
the Borrower or the Administrative Agent as may be necessary for the Borrower and the
Administrative Agent to comply with their obligations under FATCA and to determine that such Lender
has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.


Each Lender agrees that if any form or certification it previously delivered expires or becomes
obsolete or inaccurate in any respect, it shall update such form or certification or promptly
notify the Borrower and the Administrative Agent in writing of its legal inability to do so.




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 35



 









 








          (f) Treatment of Certain Refunds. If any party determines, in its sole discretion
exercised in good faith, that it has received a refund of any Taxes as to which it has been
indemnified pursuant to this Section 2.16 (including by the payment of additional amounts pursuant
to this Section 2.16), it shall pay to the indemnifying party an amount equal to such refund (but
only to the extent of indemnity payments made under this Section with respect to the Taxes giving
rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party
and without interest (other than any interest paid by the relevant Governmental Authority with
respect to such refund). Such indemnifying party, upon the request of such indemnified party,
shall repay to such indemnified party the amount paid over pursuant to this paragraph (f) (plus any
penalties, interest or other charges imposed by the relevant Governmental Authority) in the event
that such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this paragraph (f), in no event will the indemnified
party be required to pay any amount to an indemnifying party pursuant to this paragraph (f) the
payment of which would place the indemnified party in a less favorable net after-Tax position than
the indemnified party would have been in if the indemnification payments or additional amounts
giving rise to such refund had never been paid. This paragraph shall not be construed to require
any indemnified party to make available its Tax returns (or any other information relating to its
Taxes that it deems confidential) to the indemnifying party or any other Person.




     Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-Offs; Proceeds of
Guaranty Agreement.



          (a) Payments Generally. The Borrower shall make each payment required to be made by
it hereunder or under any other Loan Document (whether of principal, interest, fees or
reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) prior to the time expressly required hereunder or under such other Loan Document for
such payment (or, if no such time is expressly required, prior to 12:00 noon, Dallas, Texas time),
on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the Administrative Agent, be deemed
to have been received on the next succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Administrative Agent pursuant to the payment
instructions provided by the Administrative Agent, except payments to be made directly to the
Issuing Bank or Swingline Lender as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 10.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the account of any other
Person to the appropriate recipient promptly following receipt thereof. If any payment under any
Loan Document shall be due on a day that is not a Business Day, the date for payment shall be
extended to the next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. Except as specified in Section
2.05 with respect to Letters of Credit issued in a currency other than Dollars, all payments under
each Loan Document shall be made in Dollars.




          (b) Pro Rata Application. If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties, and (ii) second,
towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and unreimbursed
LC Disbursements then due to such parties.




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          (c) Sharing of Set-offs. If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its
Revolving Loans or participations in LC Disbursements or Swingline Loans resulting in such Lender
receiving payment of a greater proportion of the aggregate amount of its Revolving Loans and
participations in LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans and participations in
LC Disbursements and Swingline Loans of other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and participations in
LC Disbursements and Swingline Loans; provided that (i) if any such participations are
purchased and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent of such recovery,
without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender acquiring a participation
pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were a direct creditor
of the Borrower in the amount of such participation.




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




          (e) Set-Off Against Amounts Owed Lenders. If any Lender shall fail to make any
payment required to be made by it pursuant to this Agreement or any other Loan Document, then the
Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply
any amounts thereafter received by the Administrative Agent for the account of such Lender to
satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are
fully paid.




          (f) Application of Proceeds of Guaranty Agreement. All amounts received under the
Guaranty Agreement shall first be applied as payment of the accrued and unpaid fees of the
Administrative Agent hereunder and then to all other unpaid or unreimbursed Obligations (including
reasonable attorneys’ fees and expenses) owing to the Administrative Agent in its capacity as
Administrative Agent only and then any remaining amount of such proceeds shall be distributed:




               (i) first, to the Lenders, pro rata in accordance with the respective unpaid amounts
of Loan Obligations, until all the Loan Obligations have been Fully Satisfied;



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               (ii) second, to the Secured Parties, pro rata in accordance with the respective unpaid
amounts of Swap Obligations relating to any interest rate, currency or commodity Swap Agreement,
until all such Swap Obligations have been Fully Satisfied;



               (iii) third, to the Secured Parties, pro rata in accordance with the respective unpaid
amounts of the Deposit Obligations, until all Deposit Obligations have been Fully Satisfied; and



               (iv) fourth, to the Secured Parties, pro rata in accordance with the respective unpaid
amounts of the remaining Obligations.



          (g) Noncash Proceeds. Notwithstanding anything contained herein to the contrary, if
the Administrative Agent shall ever acquire any collateral through foreclosure or by a conveyance
in lieu of foreclosure or by retaining any of the collateral in satisfaction of all or part of the
Obligations or if any proceeds received by the Administrative Agent to be distributed and shared
pursuant to this Section 2.17 are in a form other than immediately available funds, the
Administrative Agent shall not be required to remit any share thereof under the terms hereof and
the Secured Parties shall only be entitled to their undivided interests in the collateral or
noncash proceeds as determined by paragraph (f) of this Section 2.17. The Secured Parties shall
receive the applicable portions (in accordance with the foregoing paragraph (f)) of any immediately
available funds consisting of proceeds from such collateral or proceeds of such noncash proceeds so
acquired only if and when received by the Administrative Agent in connection with the subsequent
disposition thereof. While any collateral or other property to be shared pursuant to this Section
is held by the Administrative Agent pursuant to this clause (g), the Administrative Agent shall
hold such collateral or other property for the benefit of the Secured Parties and all matters
relating to the management, operation, further disposition or any other aspect of such collateral
or other property shall be resolved by the agreement of the Required Lenders.




          (h) Return of Proceeds. If at any time payment, in whole or in part, of any amount
distributed by the Administrative Agent hereunder is rescinded or must otherwise be restored or
returned by the Administrative Agent as a preference, fraudulent conveyance, or otherwise under any
bankruptcy, insolvency, or similar law, then each Person receiving any portion of such amount
agrees, upon demand, to return the portion of such amount it has received to the Administrative
Agent.




          (i) Notice of Amount of Obligations. Prior to making any distribution under
clause (f) of this Section, the Administrative Agent shall request each Lender to provide the
Administrative Agent with a statement of the amounts of Swap Obligations and Deposit Obligations
then owed to such Lender and its Affiliates. A Lender may provide such information to the
Administrative Agent at any time and the Administrative Agent may also request such information at
any time. If a Lender does not provide the Administrative Agent a statement of the amount of any
such Obligations within three (3) Business Days of the date requested, the Administrative Agent may
make distributions under clause (f) thereafter and the amount of Swap Obligations and Deposit
Obligations then owed to such Lender and its Affiliates shall conclusively be deemed to be zero for
purposes of such distributions. Neither the Lender nor its Affiliates shall have a right to share
in such distributions with respect to any Swap Obligations or Deposit Obligations owed to it. If a
Lender shall thereafter provide the Administrative Agent a statement of the amount of the Swap
Obligations and Deposit Obligations then owed to such Lender and its Affiliates, any distribution
under clause (b) made after the notice is received by the Administrative Agent shall take into
account the amount of the Swap Obligations and/or Deposit Obligations then owed. No Lender nor any
Affiliate of a Lender that has not provided the statement of the amount of the Swap Obligations or
Deposit Obligations owed under this clause (i) shall be entitled to share retroactively in any
distribution made prior to the date when such statement was provided. In furtherance of the
provisions of Article IX, the Administrative Agent shall in all cases be fully protected



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 38


 









 






in making
distributions hereunder in accordance with the statements of the Swap Obligations and Deposit
Obligations received from the Lenders under this clause (i).




     Section 2.18. Mitigation Obligations; Replacement of Lenders.



               (a) Mitigation. If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.16, then such Lender shall use reasonable efforts
to designate a different lending office for funding or booking its Loans hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous
to such Lender. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by
any Lender in connection with any such designation or assignment.



               (b) Replacement. If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.16, or if any Lender defaults in its obligation to
fund Loans hereunder, then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in Section 10.04), all its interests,
rights and obligations under this Agreement to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that
(i) the Borrower shall have received the prior written consent of the Administrative Agent (and, if
a Revolving Commitment is being assigned, the Issuing Bank and Swingline Lender), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal
to the outstanding principal of its Loans and participations in LC Disbursements and Swingline
Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee (to the extent of such outstanding principal and accrued interest and fees) or the
Borrower (in the case of all other amounts), and (iii) in the case of any such assignment resulting
from a claim for compensation under Section 2.14 or payments required to be made pursuant to
Section 2.16, such assignment will result in a reduction in such compensation or payments. A
Lender shall not be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.



     Section 2.19. Increase of Revolving Commitments. By written notice sent to the
Administrative Agent (which the Administrative Agent shall promptly distribute to the Lenders), the
Borrower may request an increase of the aggregate amount of the Revolving Commitments (i) by an
aggregate amount equal to any integral multiple of $5,000,000 and not less than $10,000,000 and
(ii) by an aggregate amount for all increases not to exceed $100,000,000; provided
that (i) no Default shall have occurred and be continuing, (ii) the aggregate amount of the
Revolving Commitments shall not have been reduced, nor shall the Borrower have given notice of any
such reduction under Section 2.08(b) which has not been revoked by the time of the Borrower’s
notice under this Section 2.19, and (iii) the aggregate amount of the Revolving Commitments shall
not previously have been increased pursuant to this Section 2.19 more than three (3) times. If one
or more of the Lenders is not increasing its Revolving Commitment, then, with notice to the
Administrative Agent and the other Lenders, another one or more financial institutions, each as
approved by the Borrower and the Administrative Agent (which approval shall not be unreasonably
withheld) (a “New Lender”), may commit to provide an amount equal to the aggregate amount
of the requested increase that will not be provided by the existing Lenders (the “Increase
Amount”); provided, that the Revolving Commitment of each New Lender shall be at least



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 39


 









 







$5,000,000 and the maximum number of New Lenders shall be three (3). Upon receipt of notice from
the Administrative Agent to the Lenders and the Borrower that the Lenders, or sufficient Lenders
and New Lenders, have agreed to commit to an aggregate amount equal to the Increase Amount (or such
lesser amount as the Borrower shall agree, which shall be at least $10,000,000 and an integral
multiple of $5,000,000 in excess thereof), then: provided that no Default exists at such time or
after giving effect to the requested increase, the Borrower, the Administrative Agent and the
Lenders willing to increase their respective Revolving Commitments and the New Lenders (if any)
shall execute and deliver an Increased Commitment Supplement (herein so called) in the form
attached hereto as Exhibit “D”. If all existing Revolving Lenders shall not have provided their
pro rata portion of the requested increase, then after giving effect to the requested increase the
outstanding Revolving Loans may not be held pro rata in accordance with the new Revolving
Commitments. In order to remedy the foregoing, on the effective date of the Increased Commitment
Supplement the Revolving Lenders shall make advances among themselves, such advances to be in
amounts sufficient so that after giving effect thereto, the Revolving Loans shall be held by the
Revolving Lenders pro rata according to their respective Revolving Commitments. The advances made
by a Revolving Lender under this Section 2.19 shall be deemed to be a purchase of a corresponding
amount of the Revolving Loans of one or more of the Revolving Lenders who received the advances.
The Revolving Commitments of the Revolving Lenders who do not agree to increase their Revolving
Commitments cannot be reduced or otherwise changed pursuant to this Section 2.19. No Lender is
obligated to increase its Revolving Commitment under the provisions of this Section 2.19.



     Section 2.20. Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply
for so long as such Lender is a Defaulting Lender:



          (a) Suspension of Commitment Fees. Fees shall cease to accrue on the unfunded portion
of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.11(a);




          (b) Suspension of Voting. Such Defaulting Lender shall not have the right to vote on
any issue on which voting is required (other than to the extent expressly provided in Section
10.02(b)) and the Commitment and Revolving Exposure of such Defaulting Lender shall not be included
in determining whether the Required Lenders have taken or may take any action hereunder;




          (c) Participation Exposure. If any Swingline Exposure or LC Exposure exists at the
time a Lender becomes a Defaulting Lender then:




               (i) all or any part of the Swingline Exposure and LC Exposure of such Defaulting Lender shall
be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable
Percentages but only to the extent that (x) the conditions set forth in Section 4.02 are satisfied
at the time of such reallocation (and, unless the Borrower shall have otherwise notified the
Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted
that such conditions are satisfied at such time), (y) the sum of all non-Defaulting Lenders’
Revolving Exposures plus such Defaulting Lender’s Swingline Exposure and LC Exposure does not
exceed the total of all non-Defaulting Lenders’ Revolving Commitments and (z) such reallocation
does not cause the Revolving Exposure of any non-Defaulting Lender to exceed such non-Defaulting
Lender’s Revolving Commitment;



               (ii) if the reallocation described in clause (i) above cannot, or can only partially, be
effected, the Borrower shall within one Business Day following notice by the Administrative Agent
(x) first, prepay such Swingline Exposure and (y) second, cash collateralize, for the benefit of
the Issuing Bank, the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure
(after



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giving effect to any partial reallocation pursuant to clause (i) above) in accordance with
the procedures set forth in Section 2.05(j) for so long as such LC Exposure is outstanding;




               (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure
pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such
Defaulting Lender pursuant to Section 2.11(b) with respect to such Defaulting Lender’s LC Exposure
during the period such Defaulting Lender’s LC Exposure is cash collateralized;



               (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i)
above, then the fees payable to the Lenders pursuant to Sections 2.11(a) and 2.11(b) shall be
adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and



               (v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor
cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or
remedies of the Issuing Bank or any Lender hereunder, all letter of credit fees payable under
Section 2.11(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the
Issuing Bank until such LC Exposure is reallocated and/or cash collateralized; and



          (d) Suspension of Swingline Loans. So long as such Lender is a Defaulting Lender, the
Swingline Lender shall not be required to fund any Swingline Loan and the Issuing Bank shall not be
required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related
exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash
collateral will be provided by the Borrower in accordance with Section 2.20(c), and participating
interests in any such newly made Swingline Loan or newly issued or increased Letter of Credit shall
be allocated among non-Defaulting Lenders in a manner consistent with Section 2.20(c)(i) (and such
Defaulting Lender shall not participate therein).




     If (i) a Bankruptcy Event with respect to the parent of any Lender shall occur following the
date hereof and for so long as such event shall continue or (ii) the Issuing Bank or the Swingline
Lender has a good faith belief that any Lender has defaulted in fulfilling its obligations under
one or more other agreements in which such Lender commits to extend credit, the Issuing Bank shall
not be required to issue, amend or increase any Letter of Credit and the Swingline Lender shall not
be required to fund any Swingline Loan, unless the Issuing Bank or the Swingline Lender, as the
case may be, shall have entered into arrangements with the Borrower or such Lender, satisfactory to
the Issuing Bank or the Swingline Lender, as the case may be, to defease any risk in respect of
such Lender hereunder.



     In the event that each of the Administrative Agent, the Borrower, the Issuing Bank and the
Swingline Lender agrees that a Defaulting Lender has adequately remedied all matters that caused
such Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders
shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on the date
of such readjustment such Lender shall purchase at par such of the Loans of the other Lenders
(other than Swingline Loans) as the Administrative Agent shall determine may be necessary in order
for such Lender to hold such Loans in accordance with its Applicable Percentage.



ARTICLE III.




Representations and Warranties



     In order to induce the Administrative Agent, the Issuing Bank and the Lenders to enter into
this Agreement and to make Loans and issue Letters of Credit hereunder, the Borrower represents and
warrants to the Administrative Agent, the Issuing Bank and the Lenders that:



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 41


 









 





     Section 3.01. Organization; Powers. Each of the Borrower and its Material
Subsidiaries is (i) duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and authority to carry on its
business as now conducted, and (iii) is qualified to do business, and is in good standing, in every
jurisdiction where such qualification is required except, in the case of (ii) or (iii) above, where
the failure to do so qualify could not reasonably be expected to result in a Material Adverse
Effect.



     Section 3.02. Authorization; Enforceability. The Transactions to be entered into by
each Loan Party are within such Loan Party’s corporate, partnership or limited liability company
powers (as applicable) and have been duly authorized by all necessary corporate, partnership or
limited liability action (as applicable) and, if required, all stockholder action. This Agreement
has been duly executed and delivered by the Borrower and constitutes, and each other Loan Document
to which any Loan Party is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of the Borrower or such Loan Party (as the case
may be), enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.



     Section 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority or any other Person, except such as have been obtained or made and are in
full force and effect, (b) will not violate any applicable law or regulation or the charter, bylaws
or other organizational documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any material indenture,
agreement or other instrument binding upon the Borrower or any of its Subsidiaries or its assets
(including the documentation governing the Senior Unsecured Notes), or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, and
(d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any
of its Subsidiaries.



     Section 3.04. Financial Condition; No Material Adverse Change.



          (a) The Borrower has heretofore publicly filed with the Securities and Exchange Commission via
the EDGAR filing system its consolidated balance sheet and statements of income, stockholders
equity and cash flows (i) as of and for the fiscal year ended December 31, 2010, reported on by
KPMG LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion
of the fiscal year ended June 30, 2011, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.




          (b) Except as disclosed in the financial statements referred to above or the notes thereto or
in the Information Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions, the Borrower nor its Subsidiaries has, as of the Effective Date, any material
contingent liabilities, unusual long-term commitments or unrealized losses.




          (c) Since December 31, 2010, there has been no material adverse change in the business,
operations, affairs, financial condition, assets or properties of the Borrower and the
Subsidiaries, taken as a whole.



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     Section 3.05. Properties.



          (a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all its real and personal property necessary or material to its business in the ordinary
course, except for such defects in title that could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.




          (b) Each of the Borrower and its Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property used in its business in the
ordinary course, and the use thereof by the Borrower and its Subsidiaries does not infringe upon
the rights of any other Person, except as, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.




          (c) As of the Effective Date, neither the Borrower nor any of its Subsidiaries has received
notice of, or has knowledge of, any pending or contemplated condemnation proceeding affecting any
fee-owned real property or any sale or disposition thereof in lieu of condemnation.




     Section 3.06. Litigation and Environmental Matters.



          (a) Except for the Disclosed Matters, there are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect
(other than the Disclosed Matters) or (ii) that involve any of the Loan Documents or the
Transactions.




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




          (c) The Disclosed Matters, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect. Since the Effective Date, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has resulted in, or
materially increased the likelihood of, a Material Adverse Effect.




     Section 3.07. Compliance with Laws and Agreements. Each of the Borrower and its
Subsidiaries is in compliance with all laws, regulations and orders of any Governmental Authority
applicable to it or its property and all indentures, agreements and other instruments binding upon
it or its property, except in instances where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect. No Default has
occurred and is continuing.



     Section 3.08. Investment Company Status. Neither the Borrower nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940.



     Section 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed and has paid or caused
to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in
good faith by appropriate



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 43


 









 







proceedings and for which the Borrower or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.



     Section 3.10. ERISA. As of the Effective Date, (a) no ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to result in a Material
Adverse Effect and (b) the present value of all accumulated benefit obligations of all underfunded
Plans (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 $100,000,000 the fair market value of the assets of all such underfunded Plans.



     Section 3.11. Disclosure. The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which the Borrower or any of its Subsidiaries is
subject, and all other matters known to any of them, that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect. Neither the Information Memorandum
nor any of the other reports, financial statements, certificates or other information furnished by
or on behalf of any Loan Party to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any material misstatement of
fact or omits to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that, with respect to any
information consisting of forward-looking statements, estimates projections and projected financial
information, the Borrower represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time, it being understood that such
forward-looking statements, estimates, projections and projected financial information are subject
to significant uncertainties and contingencies, many of which are beyond the control of the
Borrower or any of its Subsidiaries and no assurance can be given that such forward-looking
statements, estimates, projections and projected financial information will be realized.



     Section 3.12. Material Subsidiaries. As of the Effective Date, the Borrower has no
Material Subsidiaries other than those listed on Schedule 3.12 hereto. As of the Effective Date,
Schedule 3.12 sets forth the jurisdiction of incorporation or organization of each such Material
Subsidiary, the percentage of Borrower’s ownership of the outstanding Equity Interests of each
Material Subsidiary directly owned by Borrower, and the percentage of each Material Subsidiary’s
ownership of the outstanding Equity Interests of each other Material Subsidiary. All of the
outstanding Equity Interest of Borrower and each Material Subsidiary have been validly issued, are
fully paid, and are nonassessable. Except as permitted to be issued or created pursuant to the
terms hereof (including stock options or other equity based awards granted to officers, directors,
employees and consultants of the Company or any Subsidiary) or as reflected on Schedule 3.12, there
are no outstanding subscriptions, options, warrants, calls, or rights (including preemptive rights)
to acquire, and no outstanding securities or instruments convertible into any Equity Interests of
the Borrower or any Material Subsidiary.



     Section 3.13. Insurance. Each of the Borrower and the Subsidiaries maintain with
financially sound and reputable insurers, insurance with respect to its properties and business
against such casualties and contingencies and in such amounts as are usually carried by businesses
engaged in similar activities as the Borrower and the Subsidiaries and located in similar
geographic areas in which the Borrower and the Subsidiaries operate



     Section 3.14. Labor Matters. As of the Effective Date, except where non-compliance
cannot reasonably be expected to have a Material Adverse Effect, (i) the hours worked by and
payments made to employees of the Borrower and the Subsidiaries have not been in violation of the
Fair Labor Standards



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Act or any other applicable Federal, state, local or foreign law dealing with
such matters, and (ii) all payments due from the Borrower or any Subsidiary, or for which any claim
may be made against the Borrower or any Subsidiary, on account of wages and employee health and
welfare insurance and other benefits, have been paid or accrued as a liability on the books of the
Borrower or such Subsidiary. As of the Effective Date, there are no strikes, lockouts or slowdowns
against the Borrower or any Subsidiary pending or, to the knowledge of the Borrower, threatened
which could reasonably be expected to result in a Material Adverse Effect. The consummation of the
Transactions will not give rise to any right of termination or right of renegotiation on the part
of any union under any collective bargaining agreement to which the Borrower or any Subsidiary is
bound.



     Section 3.15. Solvency. Immediately after the consummation of the Transactions to
occur on the Effective Date and immediately following the making of each Loan made on the Effective
Date and after giving effect to the application of the proceeds of such Loans, (a) the fair value
of the assets of each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of the property of each
Loan Party will be greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) each Loan Party will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured; and (d) each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is proposed to be
conducted following the Effective Date. As used in this Section 3.15, the term “fair value” means
the amount at which the applicable assets would change hands between a willing buyer and a willing
seller within a reasonable time, each having reasonable knowledge of the relevant facts, neither
being under any compulsion to act, with equity to both and “present fair saleable value” means the
amount that may be realized if the applicable company’s aggregate assets are sold with reasonable
promptness in an arm’s length transaction under present conditions for the sale of a comparable
business enterprises.



     Section 3.16. Margin Securities. The Borrower is not engaged principally, or as one
of its important activities, in the business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulations U or X of the Board of Governors of the
Federal Reserve System), and, except for the repurchases of the Borrower’s capital stock in
accordance with the limitations in Section 5.10 and Section 6.08, no part of the proceeds of any
Loan will be used to purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying margin stock.



ARTICLE IV.




Conditions



     Section 4.01. Conditions of Initial Credit Extension. The effectiveness of this
Agreement to amend and restate the Prior Credit Agreement and to obligate the Lenders to make Loans
and the Issuing Bank to issue Letter of Credit hereunder is subject to the satisfaction of the
following conditions:



          (a) Execution and Delivery of This Agreement. The Administrative Agent (or its
counsel) shall have received from each party hereto either (i) a counterpart of this Agreement
signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy or other electronic transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.




          (b) Guaranty Agreement. The Administrative Agent (or its counsel) shall have received
from each Subsidiary Guarantor either (i) a counterpart of the Guaranty Agreement signed on behalf
of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include



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telecopy or other electronic transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of the Guaranty Agreement.




          (c) Prior Credit Agreement. The Administrative Agent shall have received evidence
that all unpaid interest and fees accrued under the Prior Credit Agreement through the Effective
Date and all other fees, expenses and other charges outstanding thereunder (including any amounts
due under the Prior Credit Agreement arising as a result of the termination of all interest periods
thereunder on the Effective Date) shall have been paid or shall be paid with the proceeds of the
initial Loans hereunder.




          (d) Legal Opinion. The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the Effective Date) of
counsel for the Loan Parties covering the matters set forth in Sections 3.01, 3.02 and 3.03 of this
Agreement, such other matters relating to the Loan Parties, the Loan Documents or the Transactions
as the Required Lenders shall reasonably request. The Loan Parties hereby request such counsel to
deliver such opinions.




          (e) Corporate Authorization Documents. The Administrative Agent shall have received
such documents and certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party, the authorization of
the Transactions and any other legal matters relating to the Loan Parties, the Loan Documents or
the Transactions, all in form and substance satisfactory to the Administrative Agent and its
counsel.




          (f) Closing Certificate. The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or a Financial Officer of
the Borrower, confirming compliance with the conditions set forth in paragraphs (a), (b) and (c) of
Section 4.02.




          (g) Fees. The Administrative Agent, the Arrangers and the Lenders shall have received
all fees and other amounts due and payable pursuant to any fee letter between the Borrower and any
Arranger or Lender, this Agreement or any other Loan Document on or prior to the Effective Date,
including, to the extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan
Document or the Administrative Agent, the Arrangers and the Lenders shall have received evidence
that such fees and amounts shall be paid with the proceeds of the initial Loans hereunder.




          (h) Exiting Lenders. The Administrative Agent shall have received those certain
Assignment and Assumption Agreements dated as of the date hereof executed by RBS Citizens, N.A. and
UBS Loan Finance LLC.



The Administrative Agent shall notify the Borrower and the Lenders of the Effective Date, and such
notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to
Section 10.02) at or prior to 3:00 p.m., Dallas, Texas time, on November 1, 2011 (and, in the event
such conditions are not so satisfied or waived, the Commitments shall terminate at such time).




     Section 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of the Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to receipt of the request therefor in accordance herewith and to the
satisfaction of the following conditions:



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 46


 









 





          (a) Representations and Warranties. The representations and warranties of each Loan
Party set forth in the Loan Documents shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, except to the extent such representations and warranties specifically relate to any
earlier date in which case such representations and warranties shall have been true and correct as
of such earlier date;




          (b) Revolving Commitments. At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable,
the total Revolving Exposure of all Lenders shall not exceed the total Revolving Commitments of all
Lenders; and




          (c) No Default. At the time of and immediately after giving effect to such Borrowing
or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall exist.



Each Borrowing (other than in an Interest Election Request to convert an ABR Loan to a different
Type or to continue a Eurodollar Loan) and each issuance, amendment, renewal or extension of a
Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the
date thereof as to the matters specified in paragraphs (a), (b) and (c) of this Section.




     Section 4.03. Effective Date Advances and Adjustments. On the Effective Date, the
aggregate amount of the revolving commitments under the Prior Credit Agreement is being increased
hereunder but not all Lenders are participating in the increase in the Revolving Commitments based
on their pro rata percentages established under the Prior Credit Agreement. As a result, any loans
outstanding under the Prior Credit Agreement which are continued hereunder will not be held pro
rata by the Revolving Lenders in accordance with their Applicable Percentages determined hereunder.
To remedy the foregoing, on the Effective Date, upon fulfillment of the conditions in Section 4.01
and if there are any loans outstanding under the Prior Credit Agreement, the Revolving Lenders
shall make advances among themselves (which may be through the Administrative Agent) so that after
giving effect thereto the Revolving Loans will be held by the Revolving Lenders, pro rata in
accordance with their respective Applicable Percentages hereunder. The advances made on the
Effective Date under this Section by each Revolving Lender whose Applicable Percentage is new or
has increased under this Agreement (as compared to its applicable percentage under the Prior Credit
Agreement) shall be deemed to be a purchase of a corresponding amount of the Revolving Loans of the
Revolving Lender or Revolving Lenders whose Applicable Percentage has decreased (as compared to its
applicable percentage under the Prior Credit Agreement). The advances made under this Section
shall be Eurodollar Loans made under each Revolving Lender’s Revolving Commitment unless another
type of Borrowing is selected by the Borrower to be applicable thereto.



ARTICLE V.




Affirmative Covenants



     Until the Loan Obligations have been Fully Satisfied, the Borrower covenants and agrees with
the Administrative Agent, the Issuing Bank and the Lenders that:



     Section 5.01. Financial Statements and Other Information. The Borrower will furnish
to the Administrative Agent:



          (a) Annual Audit. Within 90 days after the end of each fiscal year of the Borrower,
its (i) audited consolidated balance sheet and related statements of operations, stockholders’
equity and cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures



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for the previous fiscal year, and (ii) a report by KPMG LLP or other independent
public accountants of recognized national standing (without a “going concern” or like qualification
or exception and without any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its consolidated Subsidiaries on
a consolidated basis in accordance with GAAP consistently applied;




          (b) Quarterly Financial Statements. Within 45 days after the end of each of the first
three fiscal quarters of each fiscal year of the Borrower, its unaudited consolidated balance sheet
and related statements of operations, stockholders’ equity and cash flows as of the end of and for
such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance
with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;




          (c) Compliance Certificate. Concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate in substantially the form of Exhibit B hereto of a
Financial Officer of the Borrower (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (ii) certifying that, as of the date of such certificate, the total Revolving
Exposure of all Lenders does not exceed the total Revolving Commitments of all Lenders,
(iii) setting forth reasonably detailed calculations demonstrating compliance with Article VII, and
(iv) stating whether any change in GAAP or in the application thereof has occurred since the date
of the Borrower’s audited financial statements referred to in Section 3.04 and, if any such change
has occurred, specifying the effect of such change on the financial statements accompanying such
certificate (notwithstanding the foregoing, the certificate described by this clause (c) for the
fiscal quarter ended September 30, 2011 shall be delivered on or before November 30, 2011);




          (d) Debt Rating. Promptly upon receipt thereof, written notice of any downgrade in
any rating of the Borrower’s Indebtedness by Moody’s, S&P or any other rating agency that issues
rating for the Borrower’s Indebtedness;




          (e) Senior Unsecured Notes. Promptly after such delivery or receipt, copies of any
financial or other report or notice delivered to, or received from, a holder of a Senior Unsecured
Note, which report or notice has not otherwise been delivered to the Administrative Agent
hereunder; and




          (f) Additional Information. Promptly following any request therefor, such other
information regarding the operations, business affairs and financial condition of the Borrower or
any Subsidiary, or compliance with the terms of any Loan Document, as the Administrative Agent or
any Lender may reasonably request.



Documents required to be delivered pursuant to clause (a) or (b) of this Section 5.01 (to the
extent any such documents are included in reports otherwise filed with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the functions of said
Commission) shall be deemed to have been delivered to the Administrative Agent and each Lender on
the date the Borrower has filed such reports with the Securities and Exchange Commission via the
EDGAR filing system and the Borrower has notified the Administrative Agent in writing of such
posting (which notification may be included in the certificate described in 5.01(c) above).



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     Section 5.02. Notices of Material Events. The Borrower will furnish to the
Administrative Agent and each Lender prompt written notice of the following:



          (a) Default. The occurrence of any Default;




          (b) Notice of Proceedings. The filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower
or any Affiliate thereof that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect;




          (c) ERISA Event. The occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in liability of the
Borrower and its Subsidiaries in an aggregate amount exceeding $1,000,000; and




          (d) Material Adverse Effect. Any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.



Each notice delivered under this Section shall be accompanied by a statement of a Financial Officer
or other executive officer of the Borrower setting forth the details of the event or development
requiring such notice and any action taken or proposed to be taken with respect thereto.




     Section 5.03. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in
full force and effect its (a) legal existence (except with respect to a Subsidiary which is not a
Material Subsidiary where such failure could not be reasonably expected to result in Material
Adverse Effect) and (b) the rights, licenses, permits, privileges, franchises, patents, copyrights,
trademarks and trade names except where the failure to preserve, renew or keep in force any such
right, license, permit, privilege, franchise, patent or copyright could not be reasonably expected
to result in a Material Adverse Effect; provided that the foregoing shall not prohibit any merger,
sale, consolidation, liquidation or dissolution permitted under Section 6.03 or Section 6.05.



     Section 5.04. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay its Indebtedness and other obligations, including Tax liabilities, before the
same shall become delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with GAAP, (c) such
contest effectively suspends collection of the contested obligation and the enforcement of any Lien
securing such obligation and (d) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.



     Section 5.05. Maintenance of Properties. The Borrower will, and will cause each of
its Subsidiaries to, keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear excepted.



     Section 5.06. Insurance. The Borrower will, and will cause each of its Subsidiaries
to, maintain, with financially sound and reputable insurance companies insurance (or any
self-insurance compatible with the following standard) in such amounts (with no greater risk
retention) and against such risks as are customarily maintained by companies of established repute
engaged in the same or similar businesses operating in the same or similar locations. The Borrower
will furnish to the Lenders, upon request of the Administrative Agent, information in reasonable
detail as to the insurance so maintained.



     Section 5.07. Guarantee and Secure Loans Equally.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 49


 









 





          (a) If any Subsidiary (other than an Excluded Foreign Subsidiary) of the Borrower shall
guarantee the obligations of the Borrower under the Senior Unsecured Notes or under any other
agreement creating or evidencing Indebtedness in excess of $50,000,000, the Borrower shall cause
such Subsidiary to guarantee the Obligations equally and ratably with any and all other obligations
guaranteed by such Subsidiary pursuant to documentation acceptable to the Administrative Agent.




          (b) If the Borrower shall create, assume or permit to exist any Lien upon any of its property
or assets, or permit any Subsidiary (other than an Excluded Foreign Subsidiary) to create, assume,
or permit any Lien upon any of its property or assets, whether now owned or hereafter acquired,
other than those Liens permitted by Section 6.02, the Borrower shall promptly cause the Obligations
to be secured equally and ratably with (and with the same priority of) any and all other
Indebtedness so secured by the Borrower or such Subsidiary pursuant to documentation acceptable to
the Administrative Agent.




          (c) In the event that the Borrower certifies to the Administrative Agent and the Lenders in
writing that (i) the Senior Unsecured Notes and all other documents or agreements evidencing or
otherwise relating to any Indebtedness of the Borrower or any Subsidiary do not contain any
covenant or agreement similar to this Section 5.07 and (ii) no Indebtedness of the Borrower or any
Subsidiary (other than an Excluded Foreign Subsidiary) is secured by Liens other than Liens
permitted by Section 6.02, then this Section 5.07 shall automatically be deemed to have no further
force or effect without any action of the parties hereto. If, subsequent to such certification from
the Borrower, any agreement or document related to any Indebtedness of the Borrower or any
Subsidiary (other than an Excluded Foreign Subsidiary) contains a covenant or agreement similar to
this Section 5.07, then this Section 5.07 shall automatically be reinstated and shall be in full
force and effect without any action of the parties hereto.




     Section 5.08. Books and Records; Inspection and Audit Rights. The Borrower will, and
will cause each of its Subsidiaries to, keep proper books of record and accounts in which full,
true and correct entries are made of all dealings and transactions in relation to its business and
activities. If no Default or Event of Default exists, at the expense of the Administrative Agent
and the Lenders, the Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records,
subject to Section 10.12, and to discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times during normal business hours, as often as
reasonably requested. If a Default or Event of Default exists, at the expense of the Borrower,
the Borrower will, and will cause each of its Subsidiaries to, permit any representatives
designated by the Administrative Agent or any Lender, to visit and inspect its properties, to
examine and make extracts from its books and records, and to discuss its affairs, finances and
condition with its officers and independent accountants, all at such times and as often as
requested.



     Section 5.09. Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.



     Section 5.10. Use of Proceeds. The proceeds of the Revolving Loans and Swingline
Loans will be used only for payment of fees and expenses payable in connection with the
Transactions and for working capital and other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly or indirectly,
for any purpose that entails a violation of any of the Regulations of the Board, including
Regulations G, U and X.



     Section 5.11. New Material Subsidiaries. If as of a fiscal quarter end a Subsidiary
that is not party to the Guaranty Agreement is a Material Subsidiary, then within 45 days after the
end of such fiscal quarter the Borrower shall: (i) cause each such Subsidiary to become a party to
the Guaranty Agreement



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pursuant to the execution and delivery of a Subsidiary Joinder Agreement (as
defined in the Guaranty Agreement); (ii) cause each such Subsidiary to execute and/or deliver such
other documentation as the Administrative Agent may reasonably request to evidence the authority of
each such Subsidiary to execute, deliver and perform the Guaranty Agreement and to evidence the
existence and good standing of each such Subsidiary; and (iii) deliver a favorable written opinion
(addressed to the Administrative Agent and the Lenders) of counsel to each such Subsidiary covering
the matters set forth in Sections 3.01, 3.02 and 3.03 of this Agreement and such other matters
relating to each such Subsidiary and the Loan Documents as the Administrative Agent shall
reasonably request. The Borrower requests each such counsel to deliver such opinions.



     Section 5.12. Further Assurances. The Borrower will, and will cause each Subsidiary
Guarantor to, execute any and all further documents, agreements and instruments, and take all such
further actions, which may be required under any applicable law or which the Administrative Agent
or the Required Lenders may reasonably request, to effectuate the transactions contemplated by the
Loan Documents, all at the expense of the Loan Parties.



ARTICLE VI.




Negative Covenants



     Until the Loan Obligations have been Fully Satisfied, the Borrower covenants and agrees with
the Administrative Agent, the Issuing Bank, and the Lenders that:



     Section 6.01. Indebtedness; Certain Equity Securities. The Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:



          (a) Indebtedness created under the Loan Documents;




          (b) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and extensions,
renewals and replacements of any such Indebtedness that do not increase the outstanding principal
amount thereof or result in an earlier maturity date or decreased weighted average life thereof;




          (c) Indebtedness of the Borrower to any Subsidiary and of any Subsidiary to the Borrower or
any other Subsidiary; provided that Indebtedness of the Borrower or any Subsidiary
Guarantor owed to any Subsidiary that is not a Subsidiary Guarantor shall be subordinate to the
Obligations on terms, and pursuant to documentation, reasonably satisfactory to the Administrative
Agent;




          (d) Guarantees by the Borrower or any Subsidiary of Indebtedness of the Borrower or any
Subsidiary which is otherwise permitted by this Section 6.01;




          (e) (i) Indebtedness of the Borrower and the Subsidiary Guarantors secured by fixed or capital
assets (including equipment), including Capital Lease Obligations, (ii) Indebtedness of
Subsidiaries of the Borrower that are not Subsidiary Guarantors (including Foreign Subsidiaries)
owed to an unrelated third Person (other than any Receivable Securitization Outstandings) and (iii)
other Indebtedness of Subsidiary Guarantors owed to an unrelated third Person; provided that the
aggregate amount of Indebtedness permitted by this clause (e) at any time outstanding shall not
exceed an amount equal to 20% of the Borrower’s and its Subsidiaries consolidated net worth (as
determined in accordance with GAAP);




          (f) Indebtedness arising in connection with Swap Agreements permitted by Section 6.07;




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          (g) to the extent constituting Indebtedness, deferred compensation payable to directors,
officers or employees of the Borrower and the Subsidiaries;




          (h) cash management obligations and Indebtedness incurred by the Borrower or any Subsidiary in
respect of netting services, overdraft protections and similar arrangements, in each case entered
into in the ordinary course of business in connection with cash management and deposit accounts and
not involving the borrowing of money; and




          (i) Indebtedness of the Borrower or any Subsidiary owing to Lake Park Insurance, Ltd. in an
aggregate principal amount not to exceed $60,000,000 at any time outstanding provided that no more
than $35,000,000 of the principal amount of such Indebtedness may be secured by Liens permitted
under Section 6.02(f);




          (j) Receivable Securitization Outstandings in an aggregate principal amount not to exceed
$300,000,000;




          (k) Indebtedness outstanding under the Senior Unsecured Notes on the Effective Date (but
specifically excluding any extensions, renewals, refinancings or replacements of such
Indebtedness); and




          (l) unsecured Indebtedness of the Borrower in addition to that permitted by other provisions
of this Section 6.01 provided that (i) no Default has occurred and is continuing at the time such
unsecured Indebtedness is incurred or would result from the incurrence thereof and (ii) after
giving pro forma effect to such unsecured Indebtedness, the Borrower shall be in compliance with
the financial covenants set out in Article VII as calculated for the four fiscal quarter period
most recently ended as if such unsecured Indebtedness had been incurred as of the first date of
such four fiscal quarter period (and to the extent such Indebtedness bears interest at a floating
rate, using the rate in effect at the time of calculation for the entire period of calculation).



The Borrower will not permit Lake Park Insurance, Ltd. to directly or indirectly create, assume,
Guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness except
for Indebtedness arising in the ordinary course of business in connection with insurance and
reinsurance policies it has entered into or may enter into in the ordinary course of business.



The Borrower will not permit any Subsidiary to issue any preferred stock or other preferred Equity
Interests unless such preferred Equity Interests are issued to and at all times owned by the
Borrower or another Loan Party.




     Section 6.02. Liens. The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:



          (a) Liens created under the Loan Documents;




          (b) Permitted Encumbrances;




          (c) any Lien on any asset of the Borrower or any Subsidiary existing on the date hereof and
set forth in Schedule 6.02; provided that (i) such Lien shall not apply to any other asset
of the Borrower or any Subsidiary and (ii) such Lien shall secure only those obligations which it
secures on the date hereof and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 52



 









 








          (d) any Lien existing on any fixed or capital asset (including equipment) prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any property or asset of any
Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a
Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection
with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other assets of the Borrower or any Subsidiary, (iii) such Lien shall secure
only those obligations which it secures on the date of such acquisition or the date such Person
becomes a Subsidiary, as the case may be and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof, and (iv) the aggregate principal amount of
all Indebtedness secured by Liens permitted by this clause (d) shall not at any time exceed
$25,000,000;




          (e) Liens on fixed or capital assets (including equipment) acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by subclause (i) of Section 6.01(e), including Capital Lease Obligations,
(ii) such security interests and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or improvement, (iii) the
Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or
improving such fixed or capital assets and (iv) such security interests shall not apply to any
other property or assets of the Borrower or any Subsidiary;




          (f) Liens on property of the Borrower or any of its Subsidiaries securing Indebtedness owing
to Lake Park Insurance, Ltd. permitted by Section 6.01(i) provided that the aggregate principal
amount of all Indebtedness secured by such Liens shall not at any time exceed $35,000,000;




          (g) (i) Liens on property of the Borrower or any of its Subsidiaries securing Indebtedness
owing to a Loan Party permitted by Section 6.01(c) and (ii) Liens on property of any Subsidiary
that is not a Material Subsidiary securing Indebtedness owing to any other Subsidiary that is not a
Material Subsidiary permitted by Section 6.01(c);




          (h) Liens securing Indebtedness of Foreign Subsidiaries permitted by subclause (ii) of Section
6.01(e) provided that such Liens encumber only assets of the Foreign Subsidiaries;




          (i) Liens granted in connection with any Receivable Securitization Facility permitted
hereunder on the receivables sold pursuant thereto (together with all collections and other
proceeds thereof and any collateral securing the payment thereof), all right, title and interest in
and to the lockboxes and other collection accounts in which proceeds of such receivables are
deposited, the rights under the documents executed in connection with such Receivable
Securitization Facility and in the Equity Interests issued by any special purpose entity organized
to purchase the receivables thereunder;




          (j) Liens on cash securing Indebtedness arising in connection with Swap Agreements permitted
by Section 6.07; and




          (k) other Liens not otherwise permitted by this Section 6.02 provided that the aggregate book
value of assets subject to the Liens permitted by this clause (k) does not exceed $5,000,000 at any
time.




     Section 6.03. Fundamental Changes.



          (a) The Borrower will not, nor will it permit any Subsidiary to, merge into or consolidate
with any other Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing (i) any Subsidiary may merge into the
Borrower in a



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transaction in which the Borrower is the surviving corporation, (ii) any Subsidiary
may merge into any Subsidiary in a transaction in which the surviving entity is a Subsidiary and,
if any party to such merger is a Subsidiary Guarantor, is a Subsidiary Guarantor; (iii) any
Subsidiary or the Borrower may merge into another Person in connection with an acquisition
permitted by Section 6.04 as long as the Subsidiary or the Borrower is the surviving Person and no
Default exists or would result and (iv) any Subsidiary may liquidate, dissolve or be transferred if
the Borrower determines in good faith that such liquidation, dissolution or transfer is in the
best interests of the Borrower and is not materially disadvantageous to the Lenders and if such
Subsidiary is a Subsidiary Guarantor, its assets are transferred to the Borrower or a Subsidiary
Guarantor; provided that any such merger involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger shall not be permitted unless also permitted by
Section 6.04 or Section 6.05.




          (b) The Borrower will not, and will not permit any of its Subsidiaries to, engage to any
material extent in any business other than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses reasonably related thereto.




     Section 6.04. Investments, Loans, Advances and Acquisitions. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or acquire (including pursuant to
any merger with any Person that was not a wholly owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to,
or make or permit to exist any investment or any other interest in, any other Person, or purchase
or otherwise acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, except:



          (a) Permitted Investments;




          (b) investments existing on the date hereof and set forth on Schedule 6.04;




          (c) investments by the Borrower and its Subsidiaries in Equity Interests in their respective
Subsidiaries;




          (d) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary; provided that such loans and advances shall be subject to
the conditions set forth in Section 6.01(c);




          (e) investments received in connection with the bankruptcy or reorganization of, or settlement
of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary
course of business;




          (f) notes and other non-cash consideration received as part of the purchase price of assets
disposed of pursuant to Section 6.05;




          (g) extension of trade credit in the ordinary course of business;




          (h) Swap Agreements permitted by Section 6.07;




          (i) loans and advances to officers, directors, and employees of the Borrower and the
Subsidiaries made in the ordinary course of business for travel and entertainment expenses,
relocation costs and similar purposes up to a maximum for all such loans and advances of
$10,000,000 in the aggregate at any one time outstanding;



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




          (k) Borrower or a Subsidiary may purchase, hold or acquire (including pursuant to a merger)
all the Equity Interests in a Person and may purchase or otherwise acquire (in one transaction or a
series of transactions) all or substantially all of the assets of any other Person or all or
substantially all of the assets of a division or branch of such Person, if, with respect to each
such acquisition:




               (i) Default. No Default exists or would result therefrom;



               (ii) Pro Forma Compliance. The Borrower shall be in compliance with the covenants
contained in Article VII on a pro forma basis for the four (4) fiscal quarter period then most
recently ending (assuming that the incurrence or assumption of any Indebtedness in connection with
the proposed purchase or acquisition occurred on the first day of such period and to the extent
such Indebtedness bears interest at a floating rate, using the rate in effect at the time of
calculation for the entire period of calculation); and



               (iii) Delivery and Notice Requirements. Borrower shall provide to Administrative
Agent, within five days after the consummation of any acquisition with a purchase price in excess
of $50,000,000, the following: (A) notice of the acquisition and (B) a certificate signed by a
Financial Officer of the Borrower certifying: (1) that after giving effect to the acquisition in
question, all representations and warranties contained in the Loan Documents were true and correct
on and as of the date of the closing of the acquisition with the same force and effect as if such
representations and warranties had been made on and as of such date, except to the extent that such
representations and warranties relate specifically to an earlier date (and such representations and
warranties were true and correct as of such earlier date); (2) that no Default exists or will
result from the acquisition; and (3) to the Borrower’s calculation of its compliance with
clause (ii) of this clause (k);



          (l) investments in the Equity Interests in the special purpose entities established in
connection with any Receivable Securitization Facility provided that the aggregate amount of cash
invested by the Borrower and its Subsidiaries in all such entities shall not exceed $1,000,000;




          (m) other investments not otherwise permitted by this Section 6.04 provided that the aggregate
book value of all investments made under the permissions of this clause (m) does not exceed
$1,000,000 at any time; and




          (n) in addition to the investments otherwise permitted by this Section 6.04, the Borrower and
each Subsidiary may purchase, hold or acquire Equity Interests in or other securities or assets of,
make loans or advances to, or make any other investment in, any other Person if (i) no Default
exists or would result from the making of such acquisition, loan, advance or investment and (ii)
the Borrower is in pro forma compliance with the financial covenants set forth in Article VII for
the four fiscal quarter period most recently ended after giving effect to such acquisition, loan,
advance or investment and after giving effect to any Indebtedness incurred in connection therewith;
provided, any acquisition of all of the Equity Interests in a Person, or all or substantially all
of the assets of a Person, shall be subject to the terms of clause (k) of this Section 6.04.




     Section 6.05. Asset Sales. The Borrower will not, and will not permit any of the
Subsidiaries to, sell, transfer, lease or otherwise dispose of any asset, including any Equity
Interest owned by it, nor will the Borrower permit any of it Subsidiaries to issue any additional
Equity Interest in such Subsidiary, except:



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 55


 









 





          (a) sales, leases (or subleases), licenses (or sublicenses) or other transfers and
dispositions of inventory, used, worn-out, obsolete or surplus equipment, property, property no
longer needed or useful, and Permitted Investments, each in the ordinary course of business, and
sales of real estate to the extent such property is exchanged for credit against the purchase price
of similar replacement property or the proceeds of such sale are reasonably promptly applied to the
purchase price of such replacement property;




          (b) sales, transfers and other dispositions of receivables, or undivided interests therein,
together with all collections and other proceeds thereof and any collateral securing the payment
thereof pursuant to any Receivable Securitization Facility;




          (c) if Indebtedness under the Senior Unsecured Notes is outstanding, dispositions of certain
business segments (other than domestic heating, cooling and refrigeration businesses) as long as
(i) no Default exists or would result from the making of such disposition, (ii) the book value of
assets disposed of by the Borrower and its Subsidiaries in any calendar year in reliance on this
clause (c) does not exceed ten percent (10%) of consolidated net assets of the Borrower and its
Subsidiaries, and (iii) the EBITDA attributable to the assets disposed of by the Borrower and its
Subsidiaries in reliance on this clause (c) in any calendar year does not represent more than 5% of
EBITDA of the Borrower and its Subsidiaries for the prior calendar year;




          (d) if Indebtedness under the Senior Unsecured Notes is outstanding, other dispositions as
long as (i) no Default exists or would result from the making of such disposition, (ii) the book
value of assets disposed of by the Borrower and its Subsidiaries in any calendar year in reliance
on this clause (d) does not exceed five percent (5%) of consolidated net assets of the Borrower and
its Subsidiaries, and (iii) the EBITDA attributable to the assets disposed of by the Borrower and
its Subsidiaries in reliance on this clause (d) in any calendar year does not represent more than
5% of EBITDA of the Borrower and its Subsidiaries for the prior calendar year; and




          (e) if no Indebtedness under the Senior Unsecured Notes is outstanding, other dispositions of
assets (including dispositions of certain businesses other than domestic heating, cooling and
refrigeration businesses) as long as (i) no Default exists or would result from the making of such
disposition and (ii) the total of any EBITDA attributable to the assets disposed of by the Borrower
and its Subsidiaries in any calendar year in reliance on this clause (e) does not represent more
than 20% of EBITDA of the Borrower and its Subsidiaries for the prior calendar year;



provided that all sales, transfers, leases and other dispositions permitted hereby shall be
made for fair value. Notwithstanding the foregoing, the Borrower or any Subsidiary shall be
permitted to make any sale, transfer, lease or disposition of any asset otherwise prohibited by
this Section 6.05, if within one year of disposing of such asset, the Borrower or a Subsidiary of
the Borrower applies or commits to apply an amount equal to the fair market value of such asset to:
(a) redeem the Senior Unsecured Notes, (b) repay Indebtedness for borrowed money having a maturity
of more than twelve (12) months (other than any Indebtedness owed to the Borrower or a Material
Subsidiary), (c) acquire, construct, develop or improve properties, facilities, or equipment of the
Borrower or any Material Subsidiary, or (d) any combination thereof.




     Section 6.06. Sale and Leaseback Transactions. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby it
shall sell or transfer any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property sold or transferred,
except for (i) any such sale of any fixed or capital assets that is made for cash consideration in
an amount not less than the cost of such fixed or



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 56


 









 







capital asset and is consummated within 90 days
after the Borrower or such Subsidiary acquires or completes the construction of such fixed or
capital asset; and (ii) other sale and leaseback transactions, provided that any Indebtedness that
may be incurred with any such sale and leaseback transaction is permitted under Section 6.01 and
the assets to be sold in connection such sale and leaseback transaction are permitted to be sold
pursuant to Section 6.05.



     Section 6.07. Swap Agreements. The Borrower will not, and will not permit any of its
Subsidiaries to, 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 Equity Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates (from fixed to floating
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.



     Section 6.08. Restricted Payments. The Borrower will not, nor will it permit any
Subsidiary to, declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, except (a) Subsidiaries may
declare and pay dividends ratably with respect to their capital stock and (b) Borrower may make any
Restricted Payment so long as no Default exists or would result from the making of such Restricted
Payment.



     Section 6.09. Transactions with Affiliates. The Borrower will not, nor will it permit
any Subsidiary to, sell, lease or otherwise transfer (in a single transaction or a series of
related transactions) property or assets having an aggregate book value in excess of $1,000,000 to,
or purchase, lease or otherwise acquire (in a single transaction or a series of related
transactions) property or assets having an aggregate book value in excess of $1,000,000 from, or
otherwise engage in any other transactions with, any of its Affiliates, except (a) transactions in
the ordinary course of business that are at prices and on terms and conditions not less favorable
to the Borrower or such Subsidiary than could be obtained on an arm’s-length basis from unrelated
third parties, (b) transactions between or among the Borrower and the Subsidiary Guarantors not
involving any other Affiliate and (c) any Restricted Payment permitted by Section 6.08.



     Section 6.10. Restrictive Agreements. The Borrower will not, nor will it permit any
Subsidiary to, directly or indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the ability of the Borrower
or any Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets,
or (b) the ability of any Subsidiary to pay dividends or other distributions with respect to any
shares of its capital stock or to make or repay loans or advances to the Borrower or any other
Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary; provided
that:



     (i) the foregoing shall not apply to restrictions and conditions imposed by law or by any Loan
Document,



     (ii) the foregoing shall not apply to restrictions and conditions existing on the date hereof
identified on Schedule 6.10 (but shall apply to any extension or renewal of, or any amendment or
modification expanding the scope of, any such restriction or condition),



     (iii) the foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to leases and other contracts restricting the assignment thereof, or to
agreement relating to the sale of a Subsidiary or any asset or property pending such sale, provided
such restrictions and conditions apply only to the Subsidiary, asset or property that is to be sold
and such sale is permitted hereunder,



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 57


 









 





     (iv) clause (a) of the foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Indebtedness,



     (v) clause (a) of the foregoing shall not apply to customary provisions in leases, licenses
and other contracts restricting the assignment thereof,



     (vi) clause (a) of the foregoing shall not apply to customary provisions in the documentation
evidencing any Receivable Securitization Facility that impose restrictions on the ability of the
special purpose entity party thereto to declare, pay or set aside funds for the making of any
distribution in respect of the Equity Interests issued by such entity,



     (vii) the foregoing shall not apply to restrictions or conditions with respect to a Subsidiary
that is not a Subsidiary on the Effective Date, provided that such restrictions or conditions (A)
are in existence at the time such Person becomes a Subsidiary and are not incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary and (B) apply only to such
Subsidiary and do not extend to the Borrower or any other Subsidiary or any of their respective
assets,



     (viii) the foregoing shall not apply to customary provisions contained in agreements entered
into in connection with Indebtedness owed by any Foreign Subsidiary that impose restrictions on the
ability of such Foreign Subsidiary to grant Liens on its property to declare, pay or set aside
funds for the making of any distribution in respect of the Equity Interests issued by such Foreign
Subsidiary, and



     (ix) the foregoing shall not apply to restrictions or conditions contained in agreements
evidencing, or executed in connection with, unsecured Indebtedness permitted by Section 6.01(l) as
long as such agreements do not prohibit (A) the Obligations to be secured on a pari passu basis and
(B) Liens on assets of the Borrower and its Subsidiaries on terms substantially similar to (and no
more restrictive than) the terms of Section 6.02 hereof.



     Section 6.11. Amendment of Material Documents. The Borrower will not, nor will it
permit any Subsidiary to, amend, modify or waive any of its rights under (a) its certificate of
incorporation, by-laws or other organizational documents in a manner adverse to the Administrative
Agent or the Lenders or (b) the Senior Unsecured Notes.



     Section 6.12. Change in Fiscal Year. The Borrower will not change the manner in which
the last day of its fiscal year is calculated.



ARTICLE VII.




Financial Covenants



     Until the Loan Obligations have been Fully Satisfied, the Borrower covenants and agrees with
the Administrative Agent, the Issuing Bank, and the Lenders that:



     Section 7.01. Leverage Ratio. As of the last day of each fiscal quarter, the Borrower
shall not permit the ratio of Total Indebtedness as of such date to Adjusted EBITDA for the
four (4) fiscal quarters then ended to exceed 3.50 to 1.00.



     Section 7.02. Interest Coverage Ratio. As of the last day of each fiscal quarter, the
Borrower shall not permit the ratio of:



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 58


 









 






	 	(a)	 	EBITDA for the four (4) fiscal quarters then ended minus Capital Expenditures
made by the Borrower and its Subsidiaries during such four (4) fiscal quarters; to
	 
	 	(b)	 	the sum of Interest Expense for the Borrower and its Subsidiaries during such
four (4) fiscal quarters minus total interest income received by the Borrower and its
Subsidiaries during such four (4) fiscal quarters,




to exceed 3.00 to 1.00.




ARTICLE VIII.




Events of Default



     Section 8.01. Events of Default; Remedies. If any of the following events
(“Events of Default”) shall occur:



          (a) Principal Payments. the Borrower shall fail to pay any principal of any Loan or
any reimbursement obligation in respect of any LC Disbursement when and as the same shall become
due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




          (b) Interest, Fees, and other Payments. the Borrower shall fail to pay (i) any
interest on any Loan or any fee payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue unremedied for a period
of five (5) Business Days or (ii) any amount under this Agreement or any other Loan Document (other
than principal, interest or fees), when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of ten (10) days;




          (c) Representations or Warranties. any representation, warranty or certification made
or deemed made by or on behalf of the Borrower or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in connection with any
Loan Document or any amendment or modification thereof or waiver thereunder, shall prove to have
been incorrect in any material respect (except for any representation or warranty that is qualified
by materiality, Material Adverse Effect or similar phrase which shall prove to be incorrect in any
respect), when made or deemed made;




          (d) Covenant Violation; Immediate Default. the Borrower shall fail to observe or
perform any covenant, condition or agreement contained in Sections 5.02, 5.03(a) (with respect to
the existence of the Borrower or any Material Subsidiary) or 5.11 or in Article VI or in
Article VII;




          (e) Covenant Violation with Cure Period. any Loan Party shall fail to observe or
perform any covenant, condition or agreement contained in any Loan Document (other than those
specified in clause (a), (b) or (d) of this Section 8.01), and such failure shall continue
unremedied for a period of 30 days after the earlier of (i) the date on which the Chief Executive
Officer, the General counsel, or a Financial Officer of such Loan Party becomes aware of such
failure or (ii) notice thereof from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);




          (f) Cross Payment Default. the Borrower or any Subsidiary shall fail to make any
payment (whether of principal or interest and regardless of amount) in respect of any Material
Indebtedness, when and as the same shall become due and payable (subject to any applicable grace
period);


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          (g) Cross Covenant Default. any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or that enables or permits (with
or without the giving of notice, the lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or
assets securing such Indebtedness;




          (h) Involuntary Bankruptcy. an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in
respect of the Borrower or any Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its
assets, and, in any such case, such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing shall be entered;




          (i) Voluntary Bankruptcy. the Borrower or any Subsidiary shall (i) voluntarily
commence any proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this Section 8.01,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a substantial part of its
assets, (iv) file an answer admitting the material allegations of a petition filed against it in
any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;




          (j) Other Insolvency. the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;




          (k) Judgments. one or more final judgments for the payment of money in an aggregate
amount in excess of $75,000,000 (to the extent not covered by independent third-party insurance)
shall be rendered against the Borrower, any Subsidiary or any combination thereof and the same
shall remain undischarged for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower or any Subsidiary to enforce any such judgment;




          (l) ERISA Event. ERISA Event shall have occurred that when taken together with all
other ERISA Events that have occurred, could reasonably be expected to result in a Material Adverse
Effect;




          (m) Invalidity of Loan Documents. the Guaranty Agreement shall otherwise for any
reason cease to be in full force and effect and valid, binding and enforceable in accordance with
its terms after its date of execution, or the Borrower or any Subsidiary Guarantor shall so state
in writing; or




          (n) Change in Control. a Change in Control shall occur;



then, and in every such event (other than an event with respect to the Borrower described in
clause (h) or (i) of this Section), and at any time thereafter during the continuance of such
event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to
the Borrower, take either or both of the following actions, at the same or different
times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately,
and (ii) declare the Loans then outstanding to



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be due and payable in whole (or in part, in which
case any principal not so declared to be due and payable may thereafter be declared to be due and
payable), and thereupon the principal of the Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest, notice of intent to
accelerate, notice of acceleration or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in clause (h) or (i)
of this Section, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without presentment,
demand, protest, notice of intent to accelerate, notice of acceleration or other notice of any
kind, all of which are hereby waived by the Borrower. In addition, if any Event of Default exists,
the Administrative Agent may (and if directed by the Required Lenders, shall) foreclose or
otherwise enforce any Lien granted to the Administrative Agent, for the benefit of the Secured
Parties, to secure payment and performance of the Obligations in accordance with the terms of the
Loan Documents and exercise any and all rights and remedies afforded by the laws of the State of
New York or any other jurisdiction, by any of the Loan Documents, by equity, or otherwise.




     Section 8.02. Performance by the Administrative Agent. If any Loan Party shall fail
to perform any covenant or agreement in accordance with the terms of the Loan Documents, the
Administrative Agent may, and shall at the direction of the Required Lenders, perform or attempt to
perform such covenant or agreement on behalf of the applicable Loan Party. In such event, the
Borrower shall, at the request of the Administrative Agent promptly pay any amount expended by the
Administrative Agent or the Lenders in connection with such performance or attempted performance to
the Administrative Agent, together with interest thereon at the interest rate provided for in
Section 2.12(c) from and including the date of such expenditure to but excluding the date such
expenditure is paid in full. Notwithstanding the foregoing, it is expressly agreed that neither
the Administrative Agent nor any Lender shall have any liability or responsibility for the
performance of any obligation of any Loan Party under any Loan Document.



     Section 8.03. Limitation on Separate Suit. No suit shall be brought against any Loan
Party on account of the Loan Obligations except by the Administrative Agent, acting upon the
written instructions of the Required Lenders.



ARTICLE IX.




The Administrative Agent



     Section 9.01. Appointment. Each of the Lenders and the Issuing Bank hereby
irrevocably appoints JPMorgan Chase Bank, National Association as agent on its behalf, and on
behalf of each of its Affiliates who are owed Obligations (each such Affiliate by acceptance of the
benefits of the Loan Documents hereby ratifying such appointment) and authorizes the Administrative
Agent to take such actions on its behalf and on behalf of such Affiliates and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together
with such actions and powers as are reasonably incidental thereto.



     Section 9.02. Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such Person and its
Affiliates may accept deposits from, lend money to and generally engage in any kind of business
with the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.



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     Section 9.03. Limitation of Duties and Immunities. The Administrative Agent shall not
have any duties or obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default exists, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by the Loan Documents that
the Administrative Agent is required to exercise in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the circumstances as provided in
Section 10.02), and (c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party that is communicated to or obtained by the Person serving as
Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.02) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default
unless and until written notice thereof is given to the Administrative Agent by the Borrower or a
Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document delivered thereunder or in
connection therewith, (iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth in any Loan Document, (iv) the validity, enforceability,
effectiveness or genuineness of any Loan Document or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere in any Loan Document,
other than to confirm receipt of items expressly required to be delivered to the Administrative
Agent.



     Section 9.04. Reliance on Third Parties. The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be genuine and to have
been signed or sent by the proper Person. The Administrative Agent also may rely upon any
statement made to it orally or by telephone and believed by it to be made by the proper Person, and
shall not incur any liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for any Loan Party), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.



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



     Section 9.06. Successor Agent. Subject to the appointment and acceptance of a
successor the Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and
the Issuing Bank, appoint a successor Administrative Agent which shall be a bank with an office in
New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor,



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 62


 









 







such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The
fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.03
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Administrative Agent.



     Section 9.07. Independent Credit Decisions. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent or any other Lender and based on such documents
and information as it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement, any other Loan Document or
related agreement or any document furnished hereunder or thereunder.



     Section 9.08. Other Agents. Each of Bank of America, N.A. and Wells Fargo Bank, N.A.
has been designated as a “syndication agent” hereunder in recognition of the level of its Revolving
Commitments. Each of PNC Bank, National Association and The Bank of Tokyo-Mitsubishi UFJ Ltd. has
been designated as a “documentation agent” hereunder in recognition of the level of its Revolving
Commitments. U.S. Bank National Association has been designated as “managing agent” hereunder in
recognition of the level of its Revolving Commitments. None of such institutions is an agent for
the Lenders and no such Lender shall have any obligation hereunder other than those existing in its
capacity as a Lender. Without limiting the foregoing, no such Lender shall have or be deemed to
have any fiduciary relationship with or duty to any Lender.



     Section 9.09. Powers and Immunities of Issuing Bank. Neither the Issuing Bank nor any
of its Related Parties shall be liable for any action taken or omitted to be taken by any of them
hereunder or otherwise in connection with any Loan Document except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the preceding sentence, the
Issuing Bank (a) shall have no duties or responsibilities except those expressly set forth in the
Loan Documents, and shall not by reason of any Loan Document be a trustee or fiduciary for any
Lender or for the Administrative Agent, (b) shall not be required to initiate any litigation or
collection proceedings under any Loan Document, (c) shall not be responsible to any Lender or the
Administrative Agent for any recitals, statements, representations, or warranties contained in any
Loan Document, or any certificate or other documentation referred to or provided for in, or
received by any of them under, any Loan Document, or for the value, validity, effectiveness,
enforceability, or sufficiency of any Loan Document or any other documentation referred to or
provided for therein or for any failure by any Person to perform any of its obligations thereunder,
(d) may consult with legal counsel (including counsel for the Borrower), independent public
accountants, and other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants,
or experts, and (e) shall incur no liability under or in respect of any Loan Document by acting
upon any notice, consent, certificate, or other instrument or writing believed by it to be genuine
and signed or sent by the proper party or parties. As to any matters not expressly provided for by
any Loan Document, the Issuing Bank shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by the Required Lenders,
and such instructions of the Required Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders and the Administrative Agent; provided, however,
that the Issuing Bank shall not be required to take any action which exposes it to personal
liability or which is contrary to any Loan Document or applicable law.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 63



 











 





     Section 9.10. Authorized Release of Subsidiary Guarantor. If:



          (a) no Default exists or would result; and




          (b) the Administrative Agent shall have received a certificate of a Responsible Officer of the
Borrower requesting the release of a Subsidiary Guarantor, certifying that (A) no Default exists or
will result from the release of the Subsidiary Guarantor; and (B) the Administrative Agent is
authorized to release such Subsidiary Guarantor because the Equity Interest issued by such
Subsidiary Guarantor or the assets of such Subsidiary Guarantor have been sold in a transaction
permitted by Section 6.05 (including with the consent of the Required Lenders pursuant to Section
10.02(b));



then the Administrative Agent is irrevocably authorized by the Secured Parties, without any consent
or further agreement of any Secured Party to release such Subsidiary Guarantor from all obligations
under the Loan Documents. To the extent the Administrative Agent is required to execute any
release documents in accordance with the immediately preceding sentence, the Administrative Agent
shall do so promptly upon request of the Borrower without the consent or further agreement of any
Secured Party.




     Section 9.11. Lender Affiliates Rights. By accepting the benefits of the Loan
Documents, any Affiliate of a Lender that is owed any Obligation is bound by the terms of the Loan
Documents. But notwithstanding the foregoing: (a) neither the Administrative Agent, any Lender
nor any Loan Party shall be obligated to deliver any notice or communication required to be
delivered to any Lender under any Loan Documents to any Affiliate of any Lender; and (b) no
Affiliate of any Lender that is owed any Obligation shall be included in the determination of the
Required Lenders or entitled to consent to, reject, or participate in any manner in any amendment,
waiver or other modification of any Loan Document. The Administrative Agent shall not have any
liabilities, obligations or responsibilities of any kind whatsoever to any Affiliate of any Lender
who is owed any Obligation. The Administrative Agent shall deal solely and directly with the
related Lender of any such Affiliate in connection with all matters relating to the Loan Documents.
The Obligation owed to such Affiliate shall be considered the Obligation of its related Lender for
all purposes under the Loan Documents and such Lender shall be solely responsible to the other
parties hereto for all the obligations of such Affiliate under any Loan Document.



     Section 9.12. Resignation of Bank of America, N.A. Effective upon the satisfaction of
the conditions precedent set forth in Section 4.01, Bank of America, N.A. (a) resigns as the
“Administrative Agent” and “Swingline Lender” under the Prior Credit Agreement and the “Loan
Documents” (as defined in the Prior Credit Agreement) and (b) assigns all of its right, title and
interest as the “Administrative Agent” and “Swingline Lender” under the Prior Credit Agreement and
the “Loan Documents” (as defined in the Prior Credit Agreement) to JPMorgan Chase Bank, National
Association, its capacity as the Administrative Agent hereunder. Bank of America, N.A. agrees
that, on and after the Effective Date, it shall promptly execute such documentation and take such
actions as the Administrative Agent may reasonably request in order to vest in the Administrative
Agent all rights and powers of Bank of America, N.A. as the “Administrative Agent” and “Swingline
Lender” under the Prior Credit Agreement and the “Loan Documents” (as defined in the Prior Credit
Agreement).



ARTICLE X.




Miscellaneous



     Section 10.01. Notices. Except in the case of notices and other communications
expressly permitted to be given by telephone or other means, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier
service, mailed by certified or registered mail or sent by telecopy, as follows:


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               (i) if to the Borrower or to any Subsidiary Guarantor, to it at 2140 Lake Park Boulevard,
Richardson, Texas, 75080, Attention of Rick Pelini, Vice President, Treasurer (Telecopy No.
972.497.6940);



               (ii) if to the Administrative Agent, the Issuing Bank or the Swingline Lender, to JPMorgan
Chase Bank, National Association, 2200 Ross Avenue, Third Floor, Dallas, Texas 75201, Attention:
Gregory T. Martin, Vice President, Telephone: 214.965.2171; Telecopy: 214.965.2044 and JPMorgan
Chase Bank, National Association, Midcorp Loan and Agency Services Group, Mailcode: IL1-001010; 10
South Dearborn Street, 7th Floor, Chicago, IL 60603; Attention: Nan Wilson, Telephone:
312-385-7084; Telecopy: 888-292-9533; and



               (iii) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.


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 Article II 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. Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt.




     Section 10.02. Waivers; Amendments.



          (a) No Waiver; Rights Cumulative. No failure or delay by the Administrative Agent,
the Issuing Bank or any Lender in exercising, and no course of dealing with respect to, any right
or power hereunder or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision
of any Loan Document or consent to any departure by any Loan Party therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.




          (b) Amendments. Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except (x) pursuant to an Increased Commitment
Supplement executed in accordance with the terms and conditions of Section 2.19 which only needs to
be signed by the Borrower, the Administrative Agent and the Lenders increasing or providing new
Revolving Commitments thereunder if the Increased Commitment Supplement does not increase the
aggregate amount of the Revolving Commitments to an amount in excess of $750,000,000 and (y) in the
case of this Agreement and any circumstance other than as described in clause (x) pursuant to an
agreement or agreements in writing entered into by the Borrower and the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in writing entered into by



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 65





 









 







the Administrative Agent and the Loan Party or Loan Parties that are parties thereto, in each
case with the consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such Lender (including any
such Lender that is a Defaulting Lender), (ii) reduce or forgive the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce or forgive any interest or
fees payable hereunder, without the written consent of each Lender (including any such Lender that
is a Defaulting Lender) directly affected thereby, (iii) postpone any scheduled date of payment of
the principal amount of any Loan or LC Disbursement, or any date for the payment of any interest,
fees or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any Commitment, without the written
consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected
thereby, (iv) change Section 2.08(c) in a manner that would alter the manner in which commitments
of any Class are reduced, without the written consent of each Lender (including any such Lender
that is a Defaulting Lender) directly affected thereby, (v) change Section 2.17(b), (c) or (f) in a
manner that would alter the manner in which payments are shared, without the written consent of
each Lender (including any such Lender that is a Defaulting Lender), (vi) change any of the
provisions of this Section or the definition of “Required Lenders”, “Loan Party” or “Obligation”
(or any term defined therein) or any other provision of any Loan Document specifying the number or
percentage of Lenders (or Lenders of any Class) required to waive, amend or modify any rights
thereunder or make any determination or grant any consent thereunder, without the written consent
of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby,
(vii) change Section 2.20, without the consent of each Lender (other than any Defaulting Lender),
or (viii) release any Loan Party from its obligation under the Guaranty Agreement (except as
otherwise permitted herein or in the other Loan Documents), without the written consent of each
Lender (other than any Defaulting Lender); provided further that no such agreement shall amend,
modify or otherwise affect the rights or duties of the Administrative Agent, the Issuing Bank or
the Swingline Lender hereunder without the prior written consent of the Administrative Agent, the
Issuing Bank or the Swingline Lender, as the case may be (it being understood that any change to
Section 2.20 shall require the consent of the Administrative Agent, the Issuing Bank and the
Swingline Lender).




     Section 10.03. Expenses; Indemnity; Damage Waiver.



          (a) Expenses. The Borrower shall pay (i) all reasonable and documented out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and administration of the
Loan Documents or any amendments, modifications or waivers of the provisions thereof (whether or
not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable and
documented out-of-pocket expenses incurred by the Issuing Bank in connection with the issuance,
amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and
(iii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent,
the Issuing Bank or any Lender, including the fees, charges and disbursements of any counsel for
the Administrative Agent, the Issuing Bank or any Lender, in connection with the enforcement or
protection of its rights in connection with the Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.




          (b) Indemnity. THE BORROWER SHALL INDEMNIFY THE ADMINISTRATIVE AGENT, THE ISSUING
BANK AND EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH SUCH PERSON
BEING CALLED AN “INDEMNITEE”) AGAINST, AND HOLD EACH INDEMNITEE HARMLESS FROM, ANY AND ALL
LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED EXPENSES, INCLUDING THE



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REASONABLE AND DOCUMENTED FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR ANY INDEMNITEE,
INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT
OF (I) THE EXECUTION OR DELIVERY OF THE PRIOR CREDIT AGREEMENT, THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR ANY OTHER AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE PERFORMANCE BY THE PARTIES
TO THE LOAN DOCUMENTS OF THEIR RESPECTIVE OBLIGATIONS THEREUNDER OR THE CONSUMMATION OF THE
TRANSACTIONS OR ANY OTHER TRANSACTIONS CONTEMPLATED HEREBY, (II) ANY LOAN OR LETTER OF CREDIT OR
THE USE OF THE PROCEEDS THEREFROM (INCLUDING ANY REFUSAL BY THE ISSUING BANK TO HONOR A DEMAND FOR
PAYMENT UNDER A LETTER OF CREDIT IF THE DOCUMENTS PRESENTED IN CONNECTION WITH SUCH DEMAND DO NOT
STRICTLY COMPLY WITH THE TERMS OF SUCH LETTER OF CREDIT), (III) THE FAILURE TO PAY ANY LC
DISBURSEMENT DENOMINATED IN A FOREIGN CURRENCY IN WHICH SUCH LETTER OF CREDIT WAS ISSUED, (IV) ANY
ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR FROM ANY PROPERTY CURRENTLY OR
FORMERLY OWNED OR OPERATED BY THE BORROWER OR ANY OF THE SUBSIDIARIES, OR ANY ENVIRONMENTAL
LIABILITY RELATED IN ANY WAY TO THE BORROWER OR ANY OF THE SUBSIDIARIES, OR (V) ANY ACTUAL OR
PROSPECTIVE CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE FOREGOING,
WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY, WHETHER BROUGHT BY A THIRD PARTY OR ANY LOAN
PARTY, AND REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO; PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT SUCH LOSSES, CLAIMS,
DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY
FINAL AND NONAPPEALABLE JUDGMENT TO HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF SUCH INDEMNITEE. WITHOUT LIMITING ANY PROVISION OF ANY LOAN DOCUMENT, IT IS THE EXPRESS
INTENTION OF THE PARTIES HERETO THAT EACH INDEMNITEE SHALL BE INDEMNIFIED FROM AND HELD HARMLESS
AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES, PENALTIES, JUDGMENTS, DISBURSEMENTS,
COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF OR RESULTING FROM THE
SOLE OR CONTRIBUTORY NEGLIGENCE OF SUCH INDEMNITEE. THE BORROWER AND EACH OF ITS SUBSIDIARIES
WAIVE ANY AND ALL CLAIMS, OFFSETS, DEFENSES OR COUNTERCLAIMS, WHETHER KNOWN OR UNKNOWN, ARISING
PRIOR TO THE EFFECTIVE DATE AND RELATING TO THE PRIOR CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




          (c) Lender’s Agreement to Pay. To the extent that the Borrower fails to pay any
amount required to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may be, such Lender’s
pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline Lender in its
capacity as such. For purposes hereof, a Lender’s “pro rata share” shall be determined based upon
its share of the sum of the total Revolving Exposures and unused Commitments at the time.




          (d) Waiver of Damages. To the extent permitted by applicable law, no Loan Party shall
assert, and each Loan Party waives, any claim against any Indemnitee, on any theory of liability,
for



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special, indirect, incidental, consequential or punitive damages (as opposed to direct or
actual damages) arising out of, in connection with, or as a result of, the Loan Documents or any
agreement or instrument contemplated hereby, the Transactions, any Loan or Letter of Credit or the
use of the proceeds thereof.




          (e) Payment. All amounts due under this Section shall be payable not later than 10
Business Days after written demand therefor.




     Section 10.04. Successors and Assigns.



          (a) Successors and Assigns. The provisions of this Agreement are 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 Bank that issues any Letter of Credit, any Affiliate
of a Lender who is owed any of the Obligations and any Indemnitee), 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. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby (including any Affiliate of the Issuing
Bank that issues any Letter of Credit, any Affiliate of a Lender who is owed any of the Obligations
and any Indemnitee), Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.




          (b) Assignment. (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it)
with the prior written consent (such consent not to be unreasonably withheld) of:




                    (A) the Borrower, provided that no consent of the Borrower shall be required for an
assignment to a Lender or an Affiliate of a Lender or, if an Event of Default exists, any other
Person; and



                    (B) the Administrative Agent, provided that no consent of the Administrative Agent
shall be required for an assignment of any Revolving Commitment to an assignee that is a Lender or
an Affiliate of a Lender.



               (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 Commitment or Loans
of any Class, the amount of the Commitment 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 unless each of the
Borrower and the Administrative Agent otherwise consent, provided that no such consent of
the Borrower shall be required if an Event of Default exists;



                    (B) each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement, provided that this clause
shall not be construed to prohibit the assignment of a proportionate part of all the assigning
Lender’s rights and obligations in respect of one Class of Commitments or Loans;


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                    (C) 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



          For the purposes of this Section 10.04(b), the term “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.




          Notwithstanding the foregoing, no assignment under this Section 10.04 shall be made to (x) the
Borrower or any of the Borrower’s Affiliates or Subsidiaries, (y) any Defaulting Lender or any of
its subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the
foregoing Persons described in this clause (y), or (z) a natural person.




               (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, 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 2.14, 2.15, 2.16 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.04 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.



               (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 Commitment of, and
principal amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms
hereof from time to time (the “Register”). The entries in the Register shall be
conclusive, the Borrower, the Administrative Agent, the Issuing Bank 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. The Register shall be
available for inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.



               (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; provided that if either the assigning Lender
or the assignee shall have failed to make any payment required to be made by it pursuant to this
Agreement or any other Loan Document, the Administrative Agent shall have no obligation to accept
such Assignment and Assumption and record the information therein in the Register unless and until
such payment shall have been made in full, together with all accrued interest thereon. No
assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.


FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 69







 









 








          (c) Participations. (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, 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 Commitment 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 Bank
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 or instrument
pursuant to which a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.02(b) that 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 2.14, 2.15 and 2.16 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 10.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.




                    (ii) A Participant shall not be entitled to receive any greater payment under Sections 2.14 or
2.16 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant is
made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it
were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.16(e) as though it were a Lender.



          (d) Pledge. 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.




     Section 10.05. Survival. All covenants, agreements, representations and warranties
made by the Loan Parties in the Loan Documents and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of
any Default or incorrect representation or warranty at the time any credit is extended hereunder,
and shall continue in full force and effect until the Obligations have been Fully Satisfied. The
provisions of Sections 2.14, 2.15, 2.16 and 10.03 and Article IX shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof.



     Section 10.06. Counterparts; Integration; Effectiveness; Amendment and Restatement.
This Agreement may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement, the other Loan Documents and any separate
letter agreement with respect to


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fees payable to the Administrative Agent embody the final, entire agreement among the parties
relating to the subject matter hereof and supersede any and all previous commitments, agreements,
representations and understandings, whether oral or written, relating to the subject matter hereof
and may not be contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties hereto. There are no unwritten oral agreements among the
parties hereto. This Agreement amends and restates in its entirety the Prior Credit Agreement. The
execution of this Agreement and the other Loan Documents executed in connection herewith does not
extinguish the Indebtedness outstanding in connection with the Prior Credit Agreement nor does it
constitute a novation with respect to such Indebtedness. The Borrower, the Administrative Agent
and the Lenders ratify and confirm each of the Loan Documents entered into prior to the Effective
Date (but excluding the Prior Credit Agreement) and agree that such Loan Documents continue to be
legal, valid, binding and enforceable in accordance with their respective terms. However, for all
matters arising prior to the Effective Date (including the accrual and payment of interest and
fees, and matters relating to indemnification and compliance with financial covenants), the terms
of the Prior Credit Agreement (as unmodified by this Agreement) shall control and are hereby
ratified and confirmed. The Borrower represents and warrants that as of the Effective Date there
are no claims or offsets against or defenses or counterclaims to its obligations under the Prior
Credit Agreement or any of the other Loan Documents. Delivery of an executed counterpart of a
signature page of this Agreement by telecopy or other electronic communication shall be effective
as delivery of a manually executed counterpart of this Agreement.




     Section 10.07. Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     Section 10.08. Right of Setoff. If an Event of Default exists, each Lender and each
of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing by such Lender or
Affiliate to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement or the other Loan
Documents held by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have. Each Lender agrees to notify the Borrower and the
Administrative Agent promptly after any such setoff and application but the failure of any Lender
to so notify the Borrower shall not impair such Lender’s rights hereunder.



     Section 10.09. Governing Law; Jurisdiction; Consent to Service of Process.



          (a) Governing Law. This Agreement shall be governed by and construed in accordance
with the applicable law pertaining in the State of New York, other than those conflict of law
provisions that would defer to the substantive laws of another jurisdiction. This governing law
election has been made by the parties in reliance (at least in part) on Section 5—1401 of the
General Obligations Law of the State of New York, as amended (as and to the extent applicable), and
other applicable law.




          (b) Jurisdiction. THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY



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ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT, OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES
HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE
AGENT, THE ISSUING BANK OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS
OF ANY JURISDICTION.




          (c) Venue. The Borrower hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
or any other Loan Document in any court referred to in paragraph (b) of this Section. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.




          (d) Service of Process. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.01. Nothing in this Agreement or any
other Loan Document will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.




     Section 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.



     Section 10.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



     Section 10.12. Confidentiality. Each of the Administrative Agent, the Issuing Bank
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority purporting to have jurisdiction over it, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any


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remedies hereunder or any suit, action or proceeding relating to this Agreement or the
enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to (i) any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this Agreement or (ii) any
actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of this Section or
(ii) becomes available to the Administrative Agent, the Issuing Bank or any Lender on a
non-confidential basis from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from any Loan Party relating to any Loan
Party, other than any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a non-confidential basis prior to disclosure by the applicable Loan Party;
provided that, in the case of information received from a Loan Party after the date hereof,
such information is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such Person would accord to
its own confidential information.




          EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.12 FURNISHED TO IT PURSUANT
TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS
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 WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER
AND ITS AFFILIATES, THE LOAN PARTIES] 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 NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND
APPLICABLE LAW.




     Section 10.13. Maximum Interest Rate.



          (a) Limitation to Maximum Rate; Recapture. No interest rate specified in any Loan
Document shall at any time exceed the Maximum Rate. If at any time the interest rate (the
“Contract Rate”) for any obligation under the Loan Documents shall exceed the Maximum Rate,
thereby causing the interest accruing on such obligation to be limited to the Maximum Rate, then
any subsequent reduction in the Contract Rate for such obligation shall not reduce the rate of
interest on such obligation below the Maximum Rate until the aggregate amount of interest accrued
on such obligation equals the aggregate amount of interest which would have accrued on such
obligation if the Contract Rate for such obligation had at all times been in effect. As used
herein, the term “Maximum Rate” means, at any time with respect to any Lender, the maximum rate of
nonusurious interest under applicable law that such Lender may charge Borrower. The Maximum Rate
shall be calculated in a manner that takes into account any and all fees, payments, and other
charges contracted for, charged, or received in connection with the Loan



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 73





 









 







Documents that constitute interest under applicable law. Each change in any interest rate
provided for herein based upon the Maximum Rate resulting from a change in the Maximum Rate shall
take effect without notice to Borrower at the time of such change in the Maximum Rate. For
purposes of determining the Maximum Rate under Texas law, the applicable rate ceiling shall be the
indicted rate ceiling described in, and computed in accordance with Section 303.003 of the Texas
Finance Code.




          (b) Cure Provisions. No provision of any Loan Document shall require the payment or
the collection of interest in excess of the maximum amount permitted by applicable law. If any
excess of interest in such respect is hereby provided for, or shall be adjudicated to be so
provided, in any Loan Document or otherwise in connection with this loan transaction, the
provisions of this Section shall govern and prevail and neither Borrower nor the sureties,
guarantors, successors, or assigns of Borrower shall be obligated to pay the excess amount of such
interest or any other excess sum paid for the use, forbearance, or detention of sums loaned
pursuant hereto. In the event any Lender ever receives, collects, or applies as interest any such
sum, such amount which would be in excess of the maximum amount permitted by applicable law shall
be applied as a payment and reduction of the principal of the obligations outstanding hereunder,
and, if the principal of the obligations outstanding hereunder has been paid in full, any remaining
excess shall forthwith be paid to the Borrower. In determining whether or not the interest paid or
payable exceeds the Maximum Rate, Borrower and each Lender shall, to the extent permitted by
applicable law, (a) characterize any non-principal payment as an expense, fee, or premium rather
than as interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the
entire contemplated term of the obligations outstanding hereunder so that interest for the entire
term does not exceed the Maximum Rate.




     Section 10.14. No Duty. All attorneys, accountants, appraisers, and other
professional Persons and consultants retained by the Administrative Agent or any Lender shall have
the right to act exclusively in the interest of the Administrative Agent and the Lenders and shall
have no duty of disclosure, duty of loyalty, duty of care, or other duty or obligation of any type
or nature whatsoever to Borrower, any other Loan Party, any of their respective Equity Interest
holders or any other Person.



     Section 10.15. No Fiduciary Relationship. The relationship between the Borrower and
the Loan Parties on the one hand and the Administrative Agent and each Lender on the other is
solely that of debtor and creditor, and neither the Administrative Agent nor any Lender has any
fiduciary or other special relationship with the Borrower or any Loan Parties, and no term or
condition of any of the Loan Documents shall be construed so as to deem the relationship between
the Borrower and the other Loan Parties on the one hand and the Administrative Agent and each
Lender on the other to be other than that of debtor and creditor.



     Section 10.16. Equitable Relief. The Borrower recognizes that in the event the
Borrower or any other Loan Party fails to pay, perform, observe, or discharge any or all of the
obligations under the Loan Documents, any remedy at law may prove to be inadequate relief to the
Administrative Agent and the Lenders. The Borrower therefore agrees that the Administrative Agent
and the Lenders, if the Administrative Agent or the Required Lenders so request, shall be entitled
to temporary and permanent injunctive relief in any such case without the necessity of proving
actual damages.



     Section 10.17. Construction. The Borrower, each other Loan Party (by its execution of
the Loan Documents to which it is a party), the Administrative Agent and each Lender acknowledges
that each of them has had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review the Loan Documents with its legal counsel and that the Loan Documents shall
be construed as if jointly drafted by the parties thereto.


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     Section 10.18. Independence of Covenants. All covenants under the Loan Documents
shall be given independent effect so that if a particular action or condition is not permitted by
any of such covenants, the fact that it would be permitted by an exception to, or be otherwise
within the limitations of, another covenant shall not avoid the occurrence of a Default if such
action is taken or such condition exists.



     Section 10.19. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”)
notifies each Loan Party that pursuant to the requirements of the Act, it is required to obtain,
verify and record information that identifies the Loan Party, which information includes the name
and address of the Loan Party and other information that will allow such Lender to identify the
Loan Party in accordance with the Act.



     Section 10.20. Judgment Currency. This is a loan transaction in which the
specification of a foreign currency or Dollars is of the essence, and the stipulated currency shall
in each instance be the currency of account and payment in all instances. A payment obligation in
one currency hereunder (the “Original Currency”) shall not be discharged by an amount paid
in another currency (the “Other Currency”), whether pursuant to any judgment expressed in
or converted into any Other Currency or in another place except to the extent that such tender or
recovery results in the effective receipt by a party hereto of the full amount of the Original
Currency payable to such party. If for the purpose of obtaining judgment in any court it is
necessary to convert a sum due hereunder in the Original Currency into the Other Currency, the rate
of exchange that shall apply shall be the applicable Spot Rate. The obligation of the Borrower and
the Subsidiaries in respect of any such sum due from it to the Administrative Agent, any Issuing
Bank or any Lender under any Loan Document (in this Section 10.20 called an “Entitled
Person”) shall, notwithstanding the rate of exchange actually applied in rendering such
judgment, be discharged only to the extent that on the Business Day following receipt by such
Entitled Person of any sum adjudged to be due hereunder in the Other Currency such Entitled Person
may in accordance with normal banking procedures purchase the Original Currency with the amount of
the judgment currency so adjudged to be due; and the Borrower, as a separate obligation and
notwithstanding any such judgment, agrees to indemnify such Entitled Person against, and to pay
such Entitled Person on demand, in the Original Currency, the amount (if any) by which the sum
originally due to such Entitled Person in the Original Currency hereunder exceeds the amount of the
Other Currency so purchased.



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



	 	 	 	 	 
	 	LENNOX INTERNATIONAL INC., as the Borrower

 	 
	 	By:  	/s/ Rick Pelini
 	 
	 	 	Rick Pelini, Vice President and Treasurer 	 
	 	 	 	 
	 


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	 	JPMORGAN CHASE BANK,

NATIONAL ASSOCIATION,


individually as a Lender and as the Administrative Agent

 	 
	 	By:  	/s/ Gregory T. Martin
 	 
	 	 	Gregory T. Martin, Vice President 	 
	 	 	 	 
	 


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	 	BANK OF AMERICA, N.A., individually as a Lender
 and
as a Syndication Agent

 	 
	 	By:  	/s/ Allison W. Connally
 	 
	 	 	Name:  	Allison W. Connally 	 
	 	 	Title:  	Senior Vice President 	 
	 


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	 	WELLS FARGO BANK, N.A., individually as a Lender and

as a Syndication Agent

 	 
	 	By:  	/s/ W. R. Birdwell
 	 
	 	 	Name:  	W. R. Birdwell 	 
	 	 	Title:  	Senior Vice President 	 
	 


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	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
 individually
as a Lender and as a Documentation Agent

 	 
	 	By:  	/s/ Charles Stewart
 	 
	 	 	Name:  	Charles Stewart 	 
	 	 	Title:  	Director 	 
	 


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	 	PNC BANK, NATIONAL ASSOCIATION, 
individually as a
Lender and as a Documentation Agent

 	 
	 	By:  	/s/ M. Colin Warman
 	 
	 	 	Name:  	M. Colin Warman 	 
	 	 	Title:  	Assistant Vice President 	 
	 


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	 	U.S. BANK NATIONAL ASSOCIATION, individually
 as a
Lender and as Managing Agent

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


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	 	COMERICA BANK,

as a Lender

 	 
	 	By:  	/s/ Gerald R. Finney, Jr.
 	 
	 	 	Name:  	Gerald R. Finney, Jr. 	 
	 	 	Title:  	Vice President 	 
	 


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	 	THE NORTHERN TRUST COMPANY,

as a Lender

 	 
	 	By:  	/s/ Brandon Rolek
 	 
	 	 	Name:  	Brandon Rolek 	 
	 	 	Title:  	Vice President 	 
	 


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	 	BOKF, N.A. dba Bank of Texas,

as a Lender

 	 
	 	By:  	/s/ Alan Morris
 	 
	 	 	Name:  	Alan Morris 	 
	 	 	Title:  	Vice President 	 
	 


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	 	AMEGY BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By:  	/s/ Monica Libbey
 	 
	 	 	Name:  	Monica Libbey 	 
	 	 	Title:  	Vice President 	 
	 


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	 	FIFTH THIRD BANK, an Ohio corporation,

as a Lender

 	 
	 	By:  	/s/ Mitchell A. Early
 	 
	 	 	Mitchell A. Early 	 
	 	 	AVP, Portfolio Manager 	 
	 


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	 	THE BANK OF NOVA SCOTIA,

as a Lender

 	 
	 	By:  	/s/ Justin Perdue
 	 
	 	 	Name:  	Justin Perdue 	 
	 	 	Title:  	Director 	 
	 


FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 87






 









 








	 	 	 	 	 
	 	COMPASS BANK, as a Lender

 	 
	 	By:  	/s/ Jason Gautz
 	 
	 	 	Name:  	Jason Gautz 	 
	 	 	Title:  	Vice President 	 
	 


FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 88






 









 








	 	 	 	 	 
	 	SUNTRUST BANK,

as a Lender

 	 
	 	By:  	/s/ David Simpson
 	 
	 	 	Name:  	David Simpson 	 
	 	 	Title:  	Vice President 	 
	 


FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 89




 









 








	 	 	 	 	 
	 	MORGAN STANLEY BANK, N.A.,

as a Lender

 	 
	 	By:  	/s/ Sherrese Clarke
 	 
	 	 	Name:  	Sherrese Clarke 	 
	 	 	Title:  	Authorized Signatory 	 
	 


FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 90







 









 








	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY,

as a Lender

 	 
	 	By:  	/s/ Allen K. King
 	 
	 	 	Name:  	Allen K. King 	 
	 	 	Title:  	Senior Vice President 	 
	 


FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT, Page 91










 









 








LIST OF SCHEDULES AND EXHIBITS




	 	 	 	 	 

	SCHEDULES:
	 	 	 	 
	 
	 	 	 	 
	Schedule 1.01

	 	—
	 	Existing Letters of Credit
	Schedule 2.01

	 	—
	 	Commitments
	Schedule 3.12

	 	—
	 	Material Subsidiaries
	Schedule 6.01

	 	—
	 	Existing Indebtedness
	Schedule 6.02

	 	—
	 	Existing Liens
	Schedule 6.04

	 	—
	 	Existing Investments
	Schedule 6.10

	 	—
	 	Existing Restrictions
	 
	 	 	 	 
	EXHIBITS:
	 	 	 	 
	 
	 	 	 	 
	Exhibit A

	 	—
	 	Form of Assignment and Assumption
	Exhibit B

	 	—
	 	Form of Compliance Certificate
	Exhibit C

	 	—
	 	Form of Guaranty Agreement (Material Subsidiaries)
	Exhibit D

	 	—
	 	Form of Increased Commitment Supplement
	Exhibit E

	 	—
	 	Form of Borrowing Request
	Exhibit F

	 	—
	 	Form of Interest Election Request





LIST OF SCHEDULES AND EXHIBITS, Solo Page





 











 





SCHEDULE 1.01

TO

LENNOX INTERNATIONAL INC.

FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




EXISTING LETTERS OF CREDIT



	 	 	 	 	 	 	 	 	 
	LC Number	 	Bank	 	Beneficiary	 	Amount	 
	CDCS-812901
	 	JP Morgan Chase	 	ACE INA Insurance	 	$	4,300,000	 
	D-218869
	 	JP Morgan Chase	 	Cigna Insurance Co.	 	$	2,814,883	 
	D-218998
	 	JP Morgan Chase	 	Lumberman’s Underwriting Alliance	 	$	74,000	 
	NZS538172
	 	Wells Fargo	 	ACE American Insurance Co.	 	$	32,244,343	 
	A28695T
	 	Compass	 	ACE American Insurance Co.	 	$	26,070,868	 
	SM229872W
	 	Wells Fargo	 	Wells Fargo IDB	 	$	2,641,425	 
	SM229873W
	 	Wells Fargo	 	Wells Fargo IDB	 	$	11,834,630	 
	 
	 	 	 	 	 	 	 
	 
	 	 	 	     Total	 	$	79,980,149	 
	 
	 	 	 	 	 	 	 






SCHEDULE 1.01, Solo Page




 









 





SCHEDULE 2.01

TO

LENNOX INTERNATIONAL INC.



FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT



COMMITMENTS



	 	 	 	 	 
	Lender	 	Revolving Commitment
	1. JPMorgan Chase Bank, National Association
	 	$	80,000,000	 
	2. Bank of America, N.A.
	 	$	80,000,000	 
	3. Wells Fargo Bank, N.A.
	 	$	80,000,000	 
	4. The Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 	$	60,000,000	 
	5. PNC Bank, National Association
	 	$	60,000,000	 
	6. U.S. Bank, National Association
	 	$	40,000,000	 
	7. Comerica Bank
	 	$	27,500,000	 
	8. The Northern Trust Company
	 	$	27,500,000	 
	9. BOKF, N.A. dba Bank of Texas
	 	$	27,500,000	 
	10. Amegy Bank National Association
	 	$	27,500,000	 
	11. Fifth Third Bank
	 	$	27,500,000	 
	12. The Bank of Nova Scotia
	 	$	22,500,000	 
	13. Compass Bank
	 	$	22,500,000	 
	14. SunTrust Bank
	 	$	22,500,000	 
	15. Morgan Stanley Bank, N.A.
	 	$	22,500,000	 
	16. Branch Banking and Trust Company
	 	$	22,500,000	 
	 	 	 	 
	TOTAL
	 	$	650,000,000	 
	 	 	 	 






SCHEDULE 2.01, Solo Page






 









 








SCHEDULE 3.12

TO

LENNOX INTERNATIONAL INC.




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




MATERIAL SUBSIDIARIES



	 	 	 	 	 
	Material Subsidiary	 	Jurisdiction	 	Ownership
	Allied Air Enterprises Inc.
	 	Delaware	 	Borrower (100%)
	Advanced Distributor Products LLC
	 	Delaware	 	Heatcraft Inc. (100%)
	Heatcraft Inc.
	 	Delaware	 	Borrower (100%)
	Heatcraft Refrigeration Products LLC
	 	Delaware	 	Heatcraft Inc. (100%)
	Lennox Global Ltd.
	 	Delaware	 	Borrower (100%)
	Lennox Industries Inc.
	 	Delaware	 	Borrower (100%)
	Service Experts LLC
	 	Delaware	 	Lennox Industries Inc. (100%)
	Service Experts Heating & Air Conditioning LLC
	 	Delaware	 	Service Experts LLC (100%)






SCHEDULE 3.12, Solo Page




 









 








SCHEDULE 6.01

TO

LENNOX INTERNATIONAL INC.




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




EXISTING INDEBTEDNESS


Indebtedness owing to BTMU Capital Corporation arising in connection with the Synthetic Lease in
the amount of $41,202,994.




SCHEDULE 6.01, Solo Page




 









 








SCHEDULE 6.02

TO

LENNOX INTERNATIONAL INC.




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




EXISTING LIENS


The obligations of Lennox Procurement Company Inc. (“Lessee”) under the Synthetic Lease and under
related documents are purportedly secured by a pledge of, and a purported Lien on, Lessee’s
interest in the property leased pursuant to the Synthetic Lease.




SCHEDULE 6.02, Solo Page




 









 








SCHEDULE 6.04

TO

LENNOX INTERNATIONAL INC.

FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




EXISTING INVESTMENTS


1.      25% common stock ownership interest in Alliance Compressor LLC, a joint venture engaged in the
manufacture and sale of compressors.



2.      50% common stock ownership in Frigus-Bohn S.A. de C.V., a Mexican joint venture that produces
unit coolers and condensing units.



3.      8% common stock ownership interest in Kulthorn Kirby Public Company Limited, a Thailand company
engaged in the manufacture of compressors for refrigeration applications.




SCHEDULE 6.04, Solo Page




 









 








SCHEDULE 6.10

TO

LENNOX INTERNATIONAL INC.

FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




EXISTING RESTRICTIONS


1. Receivables Purchase Agreement dated as of November 25, 2009, by and among Lennox Industries
Inc., LPAC Corp., Victory Receivables Corporation, as a Purchaser, The Bank of Tokyo-Mitsubishi
UFJ, LTD, New York Branch, as a Liquidity Bank, and The Bank of Toyko-Mitsubishi UFJ, LTD, New York
Branch, as Administrative Agent and the BTMU Purchaser Agent.




     a. Amendment No. 1 dated November 19, 2010, to the Receivables Purchase Agreement, dated as of
November 25, 2009, with Victory Receivables Corporation, as a Purchaser, The Bank of
Tokyo-Mitsubishi UFJ, LTD., New York Branch, as a Liquidity Bank, and The Bank of Tokyo-Mitsubishi
UFJ, LTD., New York Branch as Administrative Agent and the BTMU Purchaser Agent.


2. Senior Unsecured Notes



3. The Synthetic Lease and the documents executed in connection therewith




SCHEDULE 6.10, Solo Page






 









 








EXHIBIT A

TO

LENNOX INTERNATIONAL INC.




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




FORM OF ASSIGNMENT AND ASSUMPTION




EXHIBIT A, Cover Page




 









 




ASSIGNMENT AND ASSUMPTION



     This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used
but not defined herein shall have the meanings given to them in the Credit Agreement identified
below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached
hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment
and Assumption as if set forth herein in full.



     For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 

	1. Assignor:

	 	                                                            
	 
	 	 
	2. Assignee:

	 	                                                            

[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 
	3. Borrower:

	 	Lennox International Inc.
	 
	 	 
	4. Administrative Agent:

	 	JPMorgan Chase Bank, National Association, as the administrative agent under the Credit Agreement
	 
	 	 
	5. Credit Agreement:

	 	The $650,000,000 Fourth Amended and Restated Revolving Credit Facility
Agreement dated as of October 21, 2011 among Lennox International Inc.,
the Lenders parties thereto, JPMorgan Chase Bank, National Association, as
Administrative Agent, and the other agents parties thereto








 




			
	1	 	Select as applicable.





ASSIGNMENT AND ASSUMPTION, Page 1




 









 








6. Assigned Interest:




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	 	 
	 	 	Commitment/Loans for	 	 	Commitment/Loans	 	 	Percentage Assigned of	 
	Facility Assigned	 	all Lenders	 	 	Assigned	 	 	Commitment/Loans2	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 





Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL
BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]



The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more contacts to whom all syndicate-level information
(which may contain material non-public information about the Borrower and their respective
affiliates, the other Loan Parties 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.



The terms set forth in this Assignment and Assumption are hereby agreed to:




	 	 	 	 	 	 	 

	 	 	ASSIGNOR
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNOR]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	ASSIGNEE
	 
	 	 	 	 	 	 
	 	 	[NAME OF ASSIGNEE]
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 







 




			
	2	 	Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.





ASSIGNMENT AND ASSUMPTION, Page 2





 









 








	 	 	 	 	 	 	 

	[Consented to and]3 Accepted:	 	 
	 
	 	 	 	 	 	 
	[NAME OF ADMINISTRATIVE AGENT], as Administrative Agent	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	[Consented to:]4	 	 
	 
	 	 	 	 	 	 
	[NAME OF RELEVANT PARTY]	 	 
	 
	 	 	 	 	 	 
	By:
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 







 




			
	3	 	To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement.
	 
	4	 	To be added only if the consent of the
Borrower and/or other parties (e.g. Swingline Lender, Issuing Bank) is required
by the terms of the Credit Agreement.





ASSIGNMENT AND ASSUMPTION, Page 3





 









 








ANNEX 1




FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT

PROVIDED TO LENNOX INTERNATIONAL INC.




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION



     1. Representations and Warranties.



          1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the
financial condition of the Borrower, any of the Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower,
any of the Subsidiaries or Affiliates or any other Person of any of their respective obligations
under any Loan Document.




          1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, (v) if it is a Foreign Lender,
attached to the Assignment and Assumption is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee, and
(vi) it has, independently and without reliance upon the Administrative Agent or any other Lender
and based on such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned
Interest; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor 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 decisions in taking or not taking
action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.




     2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.



     3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy or other electronic communications shall be effective as
delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and
Assumption shall be governed by and construed in accordance with the applicable law pertaining in
the State of New York, other than those conflict of law provisions that would defer to the
substantive laws of another jurisdiction. This governing law election has been made by the parties
in reliance (at least in part) on Section 5—1401 of the General Obligations Law of the State of
New York, as amended (as and to the extent applicable), and other applicable law.



STANDARD TERMS AND CONDITIONS TO THE ASSIGNMENT AND ASSUMPTION, Solo Page





 









 








EXHIBIT B

TO

LENNOX INTERNATIONAL INC.

FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




COMPLIANCE CERTIFICATE


EXHIBIT B, Cover Page




 









 








COMPLIANCE CERTIFICATE

for the

quarter ending __________ __, _____




	 	 	 

	To:

	 	JPMorgan Chase Bank, National Association
	 

	 	Loan and Agency Services Group
	 

	 	10 South Dearborn Street, 7th Floor
	 

	 	Chicago, IL 60603
	 

	 	Attention: Nan Wilson
	 

	 	Telephone: 312-385-7084
	 

	 	Telecopy: 888-292-9533
	 
	 	 
	 

	 	and each Lender





Ladies and Gentlemen:




     This Compliance Certificate (the “Certificate”) is being delivered pursuant to Section
5.01(c) of that certain Fourth Amended and Restated Revolving Credit Facility Agreement (as
amended, the “Agreement”) dated as of October 21, 2011, among Lennox International Inc.
(the “Borrower”), JPMorgan Chase Bank, National Association, as administrative agent, and
the Lenders named therein. All capitalized terms, unless otherwise defined herein, shall have the
same meanings as in the Agreement. All the calculations set forth below shall be made pursuant to
the terms of the Agreement.



     The undersigned, an authorized financial officer of the Borrower in his capacity as such
financial officer and not in his individual capacity, does hereby certify to the Administrative
Agent and the Banks that:




	1.	 	DEFAULT
	 
	 	 	No Default has occurred or, if a Default has occurred, I have described on the attached Exhibit “A” the nature thereof
and the steps taken or proposed to remedy such Default.





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Compliance	 	 	 	 	 
	2. SECTION 5.01 - Financial Statements
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(a) Annual audited financial statements of the Borrower on a
consolidated basis within 90 days after the end of each
fiscal year end (together with Compliance Certificate).
	 	 	 	 	 	Yes	 	No	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(b) Quarterly unaudited financial statements of the Borrower
on a consolidated basis within 45 days after the end of the
first three fiscal quarters of each fiscal year (together
with Compliance Certificate).
	 	 	 	 	 	Yes	 	No	 	 	N/A	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3. SECTION 7.01 -Leverage Ratio
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(a) Total Indebtedness as of fiscal quarter end
	 	$	                    	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	(i) Principal amount of all obligations for
borrowed money (including Revolver Loans)
	 	$	                    	 	 	 	 	 	 	 	 	 	 	 	 	 
	(ii) Conditional sale or title retentions
	 	$	                    	 	 	 	 	 	 	 	 	 	 	 	 	 
	(iii) Deferred purchase price
	 	$	                    	 	 	 	 	 	 	 	 	 	 	 	 	 






     COMPLIANCE CERTIFICATE, Page 1



 









 





	 	 	 	 	 	 	 	 	 	 	 	 	 

	(iv) Obligations of others secured by a Lien
	 	$	                    	 	 	 	 	 	 	 	 	 
	(v) Capital Lease Obligations
	 	$	                    	 	 	 	 	 	 	 	 	 
	(vi) Letters of credit and banker’s acceptances
	 	$	                    	 	 	 	 	 	 	 	 	 
	(vii) Total
	 	$	                    	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(b) Adjusted EBITDA (from Schedule 1)
	 	$	                    	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(c) Line 3(a)  ̧ Line 3(b)
	 	      to 1.00	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(d) Maximum Leverage Ratio permitted by Credit Agreement
	 	 	3.50 to 1.00	 	 	Yes	 	No
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	4. SECTION 7.02 - Interest Coverage Ratio
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(a) EBITDA for last four fiscal quarters
	 	$	                    	 	 	 	 	 	 	 	 	 
	(b) Capital Expenditures for last four fiscal quarters
	 	$	                    	 	 	 	 	 	 	 	 	 
	(c) Interest Expense for last four fiscal quarters
	 	$	                    	 	 	 	 	 	 	 	 	 
	(d) Total interest income received during last four fiscal quarters
	 	$	                    	 	 	 	 	 	 	 	 	 
	(e) Interest Coverage Ratio (lines (4(a) - (b)) / (4(c) -
(d))
	 	      to 1.00	 	 	 	 	 	 	 	 
	(f) Maximum Interest Coverage Ratio permitted by Credit
Agreement
	 	 	3.00 to 1.00	 	 	Yes	 	No
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	5. Determination of Applicable Rate
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(a) Leverage Ratio
	 	      to 1.00	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(b) If adjustment required, set forth below new margins and
fees (see Schedule 2)
	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	(i) ABR Spread
	 	 	                    	%	 	 	 	 	 	 	 	 
	(ii) Commitment Fee Rate
	 	 	                    	%	 	 	 	 	 	 	 	 
	(iii) Eurodollar Spread
	 	 	                    	%	 	 	 	 	 	 	 	 
	(iii) Eurodollar Daily Floating Rate Spread
	 	 	                    	%	 	 	 	 	 	 	 	 







	6.	 	ATTACHED SCHEDULES
	 
	 	 	Attached hereto as schedules are the calculations supporting the computation set forth above in this Certificate. All
information contained herein and on the attached schedules is true and correct.
	 
	7.	 	FINANCIAL STATEMENTS
	 
	 	 	The financial statements attached hereto were prepared in accordance with GAAP, except where expressly noted
therein, and fairly present in all material respects (subject to year end audit adjustments and absence of
footnotes) the financial conditions and the results of the operations of the Persons reflected thereon, at the date
and for the periods indicated therein.
	 
	8.	 	CONFLICT
	 
	 	 	In the event of conflict between this Certificate and the Credit Agreement, the Credit Agreement shall control.
	 
	9.	 	REVOLVING EXPOSURE
The total Revolving Exposure of all Lenders does not exceed the total Revolving Commitments of all Lenders.





COMPLIANCE CERTIFICATE, Page 2






 









 








     IN WITNESS WHEREOF, the undersigned has executed this Certificate effective as of the
date first written above.



	 	 	 	 	 	 	 

	 	 	LENNOX INTERNATIONAL INC.
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 





COMPLIANCE CERTIFICATE, Page 3




 









 




SCHEDULE 1

TO

COMPLIANCE CERTIFICATE




	 	 	 	 	 	 	 	 	 

	(1) Consolidated Net Income.
	 	 	 	 	 	 	 	 
	Net income (loss) determined in accordance with GAAP
	 	$	                    	 	 	 	 	 
	(2) EBITDA.
	 	 	 	 	 	 	 	 
	(a) Consolidated Net Income (from line 1)
	 	$	                    	 	 	 	 	 
	(b) the total of the following to the extent deducted
from Consolidated Net Income:
	 	 	 	 	 	 	 	 
	(i) income and franchise taxes,
	 	$	                    	 	 	 	 	 
	(ii) Interest Expense,
	 	$	                    	 	 	 	 	 
	(iii) amortization and depreciation expense,
	 	$	                    	 	 	 	 	 
	(iv) non-cash charges resulting from the application of
GAAP that requires a charge against earnings for the
impairment of assets (including goodwill);
	 	$	                    	 	 	 	 	 
	(v) any non-cash expenses that arose in connection with
the grant of stock options or other equity based awards
to officers, directors, consultants, and employees of
the Borrower and its Subsidiaries;
	 	$	                    	 	 	 	 	 
	(vi) any non-recurring charges which relate to the
discontinuance of Subsidiary operations;
	 	$	                    	 	 	 	 	 
	(vii) any non-recurring charges which relate to
restructuring and severance activities; provided, that
the total cash amount of such charges shall not exceed
$15,000,000 during any four fiscal quarter period (not
taking into account any cash charges under (viii) below
	 	$	                    	 	 	 	 	 
	(viii) any non-recurring charges which relate to the
refinance of the lease of the Borrower’s headquarters
building located at 2140 Lake Park Blvd., Richardson,
Texas; provided, that the total cash amount of such
charges shall not exceed $15,000,000 during the term of
this Agreement;
	 	$	                    	 	 	 	 	 
	(ix) any non-cash loss (or minus any gain) associated
with the sale of assets not in the ordinary course of
business,
	 	 	 	 	 	 	 	 
	(x) extraordinary loss or other items (or minus any
extraordinary gain or income);
	 	$	                    	 	 	 	 	 
	(xii) any non-cash loss (or minus any non-cash gain)
related to financial instrument hedges (other than
foreign currency hedges)
	 	$	                    	 	 	 	 	 
	(xiii) the cumulative non-cash effects of changes in
accounting policies,
	 	$	                    	 	 	 	 	 
	Total (lines (i) through (xiii))
	 	$	                    	 	 	 	 	 
	(c) cash payments made in such period related to a
non-cash expense (other than with respect to
restructuring activities) added to Consolidated Net
Income in a previous period.
	 	$	                    	 	 	 	 	 
	(e) EBITDA: Lines 2(a) plus 2(b) minus 2(c)
	 	 	 	 	 	$	                    	 
	(3) Adjusted EBITDA.
	 	 	 	 	 	 	 	 
	(a) EBITDA (from Line 2(e)
	 	$	                    	 	 	 	 	 
	(b) EBIDTDA from Prior Targets for periods prior to
Acquisitions
	 	$	                    	 	 	 	 	 
	(c) EBIDTDA for prior Companies and Prior Assets
	 	$	                    	 	 	 	 	 
	(d) Total Adjusted EBITDA
	 	 	 	 	 	$	                    	 






SCHEDULE 1 to Compliance Certificate, Page 1






 









 





SCHEDULE 2

TO

COMPLIANCE CERTIFICATE




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	Eurodollar	 	 
	 	 	 	 	 	 	Eurodollar	 	Daily Swingline	 	Commitment
	Leverage Ratio	 	ABR Spread	 	Spread	 	Spread	 	Fee Rate
	Category 1
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	> 3.00 to 1.0
	 	 	1.00	%	 	 	2.00	%	 	 	2.00	%	 	 	0.35	%
	Category 2
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	£ 3.00 to 1.0 but
> 2.50 to 1.0
	 	 	0.75	%	 	 	1.75	%	 	 	1.75	%	 	 	0.30	%
	Category 3


£ 2.50 to 1.0 but
> 2.00 to 1.0
	 	 	0.50	%	 	 	1.50	%	 	 	1.50	%	 	 	0.25	%
	Category 4


£ 2.00 to 1.0 but
> 1.50 to 1.0
	 	 	0.25	%	 	 	1.25	%	 	 	1.25	%	 	 	0.20	%
	Category 5
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	£ 1.50 to 1.0
	 	 	0.00	%	 	 	1.00	%	 	 	1.00	%	 	 	0.15	%






SCHEDULE 2 to Compliance Certificate, Page 1




 









 








EXHIBIT C

TO

LENNOX INTERNATIONAL INC.

FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




GUARANTY AGREEMENT



EXHIBIT C, Cover Page






 









 








FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT




     WHEREAS, LENNOX INTERNATIONAL INC. (the “Borrower”) has entered into that certain
Fourth Amended and Restated Revolving Credit Facility Agreement dated October 21, 2011 among
Borrower, the lenders party thereto (the “Lenders”), JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as the administrative agent for the Lenders (the “Administrative Agent”) (such
Credit Agreement, as it may hereafter be amended or otherwise modified from time to time, being
hereinafter referred to as the “Credit Agreement”, and capitalized terms not otherwise defined
herein shall have the same meaning as set forth in the Credit Agreement);



     WHEREAS, this Guaranty Agreement amends and restates that certain Third Amended and Restated
Subsidiary Guaranty Agreement dated as of October 12, 2007 executed by the Guarantors in favor of
Bank of America, N.A., as administrative agent, in its entirety;



     WHEREAS, the execution of this Guaranty Agreement is a condition to the Administrative Agent’s
and each Lender’s obligations under the Credit Agreement;



     NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each of the undersigned Subsidiaries and any Subsidiary hereafter added as a
“Guarantor” hereto pursuant to a Subsidiary Joinder Agreement in the form attached hereto as
Exhibit A (individually a “Guarantor” and collectively the “Guarantors”), hereby
irrevocably and unconditionally guarantees to the Secured Parties the full and prompt payment and
performance of the Guaranteed Indebtedness (hereinafter defined), this Guaranty Agreement being
upon the following terms:



     1. Guaranteed Indebtedness. The term “Guaranteed Indebtedness”, as used
herein, means all of the Obligations, as defined in the Credit Agreement. The “Guaranteed
Indebtedness” shall include any and all post-petition interest and expenses (including attorneys’
fees) whether or not allowed under any bankruptcy, insolvency, or other similar law;
provided that the Guaranteed Indebtedness shall be limited, with respect to each Guarantor,
to an aggregate amount equal to the largest amount that would not render such Guarantor’s
obligations hereunder subject to avoidance under Section 544 or 548 of the United States Bankruptcy
Code or under any applicable state law relating to fraudulent transfers or conveyances.



     2. Contribution Agreement. The Guarantors together desire to allocate among
themselves (collectively, the “Contributing Guarantors”), in a fair and equitable manner,
their obligations arising under this Guaranty Agreement and the other Loan Documents. Accordingly,
in the event any payment or distribution is made by a Guarantor under this Guaranty Agreement or
under the other Loan Documents (a “Funding Guarantor”) that exceeds its Fair Share (as
defined below), that Funding Guarantor shall be entitled to a contribution from each of the other
Contributing Guarantors in the amount of such other Contributing Guarantor’s Fair Share Shortfall
(as defined below), with the result that all such contributions will cause each Contributing
Guarantor’s Aggregate Payments (as defined below) to equal its Fair Share. “Fair Share”
means, with respect to a Contributing Guarantor as of any date of determination, an amount equal to
(i) the ratio of (x) the Adjusted Maximum Amount (as defined below) with respect to such
Contributing Guarantor to (y) the aggregate of the Adjusted Maximum Amounts with respect to all
Contributing Guarantors, multiplied by (ii) the aggregate amount paid or
distributed on or before such date by all Funding Guarantors under the Loan Documents in respect of
the obligations guarantied. “Fair Share Shortfall” means, with respect to a Contributing
Guarantor as of any date of determination, the excess, if any, of the Fair Share of such
Contributing Guarantor over the Aggregate Payments of such Contributing Guarantor. “Adjusted
Maximum Amount” means, with respect to a Contributing Guarantor as of any date of
determination, the maximum aggregate amount of the obligations of such Contributing Guarantor under
this Guaranty Agreement determined in accordance



FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 1




 









 




with the provisions hereof; provided that, solely for purposes of calculating the
“Adjusted Maximum Amount” with respect to any Contributing Guarantor for purposes of this paragraph
2, the assets or liabilities arising by virtue of any rights to or obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing Guarantor.
“Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, the aggregate amount of all payments and distributions made on or before such date
by such Contributing Guarantor in respect of this Guaranty Agreement (including, without
limitation, in respect of this paragraph 2) and the other Loan Documents. The amounts payable as
contributions hereunder shall be determined as of the date on which the related payment or
distribution is made by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this paragraph 2 shall not be construed in any way
to limit the liability of any Contributing Guarantor hereunder.




     3. Absolute and Irrevocable Guaranty. This instrument shall be an absolute,
continuing, irrevocable and unconditional guaranty of payment and performance, and not a guaranty
of collection, and each Guarantor shall remain liable on its obligations hereunder until the
payment and performance in full of the Guaranteed Indebtedness. No set-off, counterclaim,
recoupment, reduction, or diminution of any obligation, or any defense of any kind or nature which
Borrower may have against any Secured Party or any other party, or which any Guarantor may have
against Borrower, any Secured Party or any other party, shall be available to, or shall be asserted
by, any Guarantor against any Secured Party or any subsequent holder of the Guaranteed Indebtedness
or any part thereof or against payment of the Guaranteed Indebtedness or any part thereof other
than Full Satisfaction of the Obligations. If the payment of any amount of principal of, interest
with respect to or any other amount constituting the Guaranteed Indebtedness, or any portion
thereof, is rescinded, voided or must otherwise be refunded by the Administrative Agent or any Loan
Party for any reason, then the Guaranteed Indebtedness and all terms and provisions of this
Guaranty Agreement will be automatically reinstated and become automatically effective and in full
force and effect, all to the extent that and as though such payment so rescinded, voided or
otherwise refunded had never been made.



     4. Rights Cumulative. If a Guarantor becomes liable for any indebtedness owing by
Borrower to any Secured Party by endorsement or otherwise, other than under this Guaranty
Agreement, such liability shall not be in any manner impaired or affected hereby, and the rights of
the Secured Parties hereunder shall be cumulative of any and all other rights that any Secured
Party may ever have against such Guarantor. The exercise by any Secured Party of any right or
remedy hereunder or under any other instrument, or at law or in equity, shall not preclude the
concurrent or subsequent exercise of any other right or remedy.



     5. Agreement to Pay Guaranteed Indebtedness. In the event of default by Borrower in
payment or performance of the Guaranteed Indebtedness, or any part thereof, when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration, or otherwise, the Guarantors
shall, jointly and severally, promptly pay the amount due thereon to Administrative Agent, without
notice or demand, in lawful currency of the United States of America, and it shall not be necessary
for Administrative Agent or any other Secured Party, in order to enforce such payment by any
Guarantor, first to institute suit or exhaust its remedies against Borrower or others liable on
such Guaranteed Indebtedness, or to enforce any rights against any collateral which shall ever have
been given to secure such Guaranteed Indebtedness. In the event such payment is made by a
Guarantor, then such Guarantor shall be subrogated to the rights then held by Administrative Agent
and any other Secured Party with respect to the Guaranteed Indebtedness to the extent to which the
Guaranteed Indebtedness was discharged by such Guarantor. Notwithstanding the foregoing, upon
payment by such Guarantor of any sums to Administrative Agent or any other Secured Party hereunder,
all rights of such Guarantor against Borrower, any other guarantor or any collateral arising as a
result therefrom by way of right of subrogation, reimbursement, contribution or otherwise shall in
all respects be subordinate and junior in



FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 2




 









 




right of payment to the prior Full Satisfaction of the Obligations. All payments received by
the Administrative Agent hereunder shall be applied by the Administrative Agent to payment of the
Guaranteed Indebtedness in the order provided for in Section 2.17(f) of the Credit Agreement.




     6. Stay of Acceleration. If acceleration of the time for payment of any amount
payable by Borrower under the Guaranteed Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower, all such amounts otherwise subject to acceleration under the terms of
the Guaranteed Indebtedness shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by Administrative Agent or any other Secured Party.



     7. Obligations Not Impaired. Each Guarantor hereby agrees that its obligations under
the Loan Documents shall not be released, discharged, diminished, impaired, reduced, or affected
for any reason or by the occurrence of any event, including, without limitation, one or more of the
following events, whether or not with notice to or the consent of any Guarantor: (a) the taking or
accepting of collateral as security for any or all of the Guaranteed Indebtedness or the release,
surrender, exchange, or subordination of any collateral now or hereafter securing any or all of the
Guaranteed Indebtedness; (b) any partial release of the liability of any Guarantor hereunder, or
the full or partial release of any other guarantor from liability for any or all of the Guaranteed
Indebtedness; (c) any disability of Borrower, or the dissolution, insolvency, or bankruptcy of
Borrower, any Guarantor, or any other party at any time liable for the payment of any or all of the
Guaranteed Indebtedness; (d) any renewal, extension, modification, waiver, amendment, or
rearrangement of any or all of the Guaranteed Indebtedness or any instrument, document, or
agreement evidencing, securing, or otherwise relating to any or all of the Guaranteed Indebtedness;
(e) any adjustment, indulgence, forbearance, waiver, or compromise that may be granted or given by
Administrative Agent or any other Secured Party to Borrower, any Guarantor, or any other party ever
liable for any or all of the Guaranteed Indebtedness; (f) any neglect, delay, omission, failure, or
refusal of Administrative Agent or any other Secured Party to take or prosecute any action for the
collection of any of the Guaranteed Indebtedness or to foreclose or take or prosecute any action in
connection with any instrument, document, or agreement evidencing, securing, or otherwise relating
to any or all of the Guaranteed Indebtedness; (g) the unenforceability or invalidity of any or all
of the Guaranteed Indebtedness or of any instrument, document, or agreement evidencing, securing,
or otherwise relating to any or all of the Guaranteed Indebtedness; (h) any payment by Borrower or
any other party to Administrative Agent or any other Secured Party is held to constitute a
preference under applicable bankruptcy or insolvency law or if for any other reason Administrative
Agent or any other Secured Party is required to refund any payment or pay the amount thereof to
someone else; (i) the settlement or compromise of any of the Guaranteed Indebtedness; (j) the
non-perfection of any security interest or lien securing any or all of the Guaranteed Indebtedness;
(k) any impairment of any collateral securing any or all of the Guaranteed Indebtedness; (l) the
failure of Administrative Agent or any other Secured Party to sell any collateral securing any or
all of the Guaranteed Indebtedness in a commercially reasonable manner or as otherwise required by
law; (m) any change in the corporate existence, structure, or ownership of Borrower; or (n) any
other circumstance which might otherwise constitute a defense available to, or discharge of,
Borrower or any other Guarantor (other than the Full Satisfaction of the Obligations).



     8. Representations and Warranties. Each Guarantor represents and warrants to
Administrative Agent and the Lenders as follows:




     (a) Credit Agreement Representations. All representations and
warranties in the Credit Agreement relating to it are true and correct as of the
date hereof and on each date the representations and warranties hereunder are
restated pursuant to any of the Loan Documents with the same force and effect as if
such representations and warranties had



FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 3




 









 






been made on and as of such date except to the extent that such representations
and warranties relate specifically to another date.




     (b) Independent Analysis. It has, independently and without reliance
upon Administrative Agent or any Lender and based upon such documents and
information as it has deemed appropriate, made its own analysis and decision to
enter into the Loan Documents to which it is a party.




     (c) Borrower Information. It has adequate means to obtain from
Borrower on a continuing basis information concerning the financial condition and
assets of Borrower and it is not relying upon Administrative Agent or any Lender to
provide (and neither the Administrative Agent nor any Lender shall have any duty to
provide) any such information to it either now or in the future.




     (d) Benefit of Guaranty. The value of the consideration received and
to be received by each Guarantor as a result of Borrower’s and the Lenders’ entering
into the Credit Agreement and each Guarantor’s executing and delivering this
Guaranty Agreement is reasonably worth at least as much as the liability and
obligation of each Guarantor hereunder, and such liability and obligation and the
Credit Agreement have benefited and may reasonably be expected to benefit each
Guarantor directly or indirectly.



     9. Covenants of Guarantor. Each Guarantor covenants and agrees that until the Loan
Obligations have been Fully Satisfied, it will comply with all covenants set forth in the Credit
Agreement specifically applicable to it.



     10. Right of Set Off. When an Event of Default exists and subject to the terms of
Section 2.17 of the Credit Agreement, Administrative Agent and each other Secured Party shall have
the right to set-off and apply against this Guaranty Agreement or the Guaranteed Indebtedness or
both, at any time and without notice to any Guarantor, any and all deposits (general or special,
time or demand, provisional or final) or other sums at any time credited by or owing from
Administrative Agent and each other Secured Party to any Guarantor whether or not the Guaranteed
Indebtedness is then due and irrespective of whether or not Administrative Agent or any other
Secured Party shall have made any demand under this Guaranty Agreement. Each Secured Party agrees
promptly to notify the Borrower (with a copy to the Administrative Agent) after any such setoff and
application, provided that the failure to give such notice shall not affect the validity of such
setoff and application. The rights and remedies of Administrative Agent and other Secured Parties
hereunder are in addition to other rights and remedies (including, without limitation, other rights
of set-off) which Administrative Agent or any other Secured Party may have.



     11. Intercompany Subordination.



          (a) Debt Subordination. Each Guarantor hereby agrees that the Subordinated
Indebtedness (as defined below) shall be subordinate and junior in right of payment to the Full
Satisfaction of the Obligations. The Subordinated Indebtedness shall not be payable, and no
payment of principal, interest or other amounts on account thereof, and no property or guarantee of
any nature to secure or pay the Subordinated Indebtedness shall be made or given, directly or
indirectly by or on behalf of any Debtor (hereafter defined) or received, accepted, retained or
applied by any Guarantor unless and until the Obligations shall have been Fully Satisfied; except
that prior to the occurrence and continuance of an Event of Default, each Debtor shall have the
right to make payments and a Guarantor shall have the right to receive payments on the Subordinated
Indebtedness from time to time in the ordinary course of business. When an Event of Default
exists, no payments may be made or given on the Subordinated




FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 4




 









 





Indebtedness, directly or indirectly,
by or on behalf of any Debtor or received, accepted, retained or
applied by any Guarantor unless and until the Obligations shall have been Fully Satisfied. If
any sums shall be paid to a Guarantor by any Debtor or any other Person on account of the
Subordinated Indebtedness when such payment is not permitted hereunder, such sums shall be held in
trust by such Guarantor for the benefit of Administrative Agent and the other Secured Parties and
shall forthwith be paid to Administrative Agent and applied by Administrative Agent against the
Guaranteed Indebtedness in accordance with this Guaranty Agreement. For purposes of this Guaranty
Agreement and with respect to a Guarantor, the term “Subordinated Indebtedness” means all
indebtedness, liabilities, and obligations of Borrower or any other Guarantor (Borrower and such
other Guarantor herein the “Debtors”) to such Guarantor, whether such indebtedness,
liabilities, and obligations now exist or are hereafter incurred or arise, or are direct, indirect,
contingent, primary, secondary, several, joint and several, or otherwise, and irrespective of
whether such indebtedness, liabilities, or obligations are evidenced by a note, contract, open
account, or otherwise, and irrespective of the Person or Persons in whose favor such indebtedness,
obligations, or liabilities may, at their inception, have been, or may hereafter be created, or the
manner in which they have been or may hereafter be acquired by such Guarantor.




          (b) Lien Subordination. Each Guarantor agrees that any and all Liens (including any
judgment liens), upon any Debtor’s assets securing payment of any Subordinated Indebtedness shall
be and remain inferior and subordinate to any and all Liens upon any Debtor’s assets securing
payment of the Guaranteed Indebtedness or any part thereof, regardless of whether such Liens in
favor of a Guarantor, Administrative Agent or any other Secured Party presently exist or are
hereafter created or attached. Without the prior written consent of Administrative Agent, no
Guarantor shall (i) file suit against any Debtor or exercise or enforce any other creditor’s right
it may have against any Debtor, or (ii) foreclose, repossess, sequester, or otherwise take steps or
institute any action or proceedings (judicial or otherwise, including without limitation the
commencement of, or joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or
insolvency proceeding) to enforce any obligations of any Debtor to such Guarantor or any Liens held
by such Guarantor on assets of any Debtor.




          (c) Insolvency Proceeding. In the event of any receivership, bankruptcy,
reorganization, rearrangement, debtor’s relief, or other insolvency proceeding involving any Debtor
as debtor, Administrative Agent shall have the right to prove and vote any claim under the
Subordinated Indebtedness and to receive directly from the receiver, trustee or other court
custodian all dividends, distributions, and payments made in respect of the Subordinated
Indebtedness until the Obligations have been Fully Satisfied. The Administrative Agent may apply
any such dividends, distributions, and payments against the Guaranteed Indebtedness in accordance
with the Credit Agreement.




     12. Amendment and Waiver. Except for modifications made pursuant to the execution and
delivery of a Subsidiary Joinder Agreement (which needs to be signed only by the Subsidiary party
thereto) and the release of any Guarantor from its obligations hereunder (which shall require the
consent of all Lenders except as otherwise provided in Section 9.10 of the Credit Agreement); no
amendment or waiver of any provision of this Guaranty Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be in writing and signed
by the parties required by Section 10.02(b) of the Credit Agreement. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.



     13. Tolling of Statutes of Limitation. To the extent permitted by law, any
acknowledgment or new promise, whether by payment of principal or interest or otherwise and whether
by Borrower or others (including any Guarantor), with respect to any of the Guaranteed Indebtedness
shall, if the statute of limitations in favor of a Guarantor against Administrative Agent or any
other Secured Party shall have commenced to run, toll the running of such statute of limitations
and, if the period of such statute of limitations shall have expired, prevent the operation of such
statute of limitations.



FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 5




 









 





     14. Successor and Assigns. This Guaranty Agreement is for the benefit of the Secured
Parties and their successors and assigns, and in the event of an assignment of the Guaranteed
Indebtedness, or any part thereof, the rights and benefits hereunder, to the extent applicable to
the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty Agreement
is binding not only on each Guarantor, but on each Guarantor’s successors and assigns. No
Guarantor may assign or otherwise transfer any of its rights or obligations hereunder without prior
written consent of each Lender except as otherwise permitted by the Credit Agreement and any
attempted assignment or transfer without such consent shall be null and void.



     15. Reliance and Inducement. Each Guarantor recognizes that Administrative Agent and
the Lenders are relying upon this Guaranty Agreement and the undertakings of each Guarantor
hereunder and under the other Loan Documents to which each is a party in making extensions of
credit to Borrower under the Credit Agreement and further recognizes that the execution and
delivery of this Guaranty Agreement and the other Loan Documents to which each Guarantor is a party
is a material inducement to Administrative Agent and the Lenders in entering into the Credit
Agreement and continuing to extend credit thereunder. Each Guarantor hereby acknowledges that
there are no conditions to the full effectiveness of this Guaranty Agreement or any other Loan
Document to which it is a party.



     16. Notice. Any notice or demand to any Guarantor under or in connection with this
Guaranty Agreement or any other Loan Document to which it is a party shall be deemed effective if
given to the Guarantor, care of Borrower in accordance with the notice provisions in the Credit
Agreement.



     17. Expenses. The Guarantors shall, jointly and severally, pay on demand all
reasonable attorneys’ fees and all other reasonable costs and expenses incurred by Administrative
Agent and the other Secured Parties in connection with the administration, enforcement, or
collection of this Guaranty Agreement.



     18. Waiver of Promptness, Diligence, etc. Except as otherwise specifically provided
in the Credit Agreement, each Guarantor hereby waives promptness, diligence, notice of any default
under the Guaranteed Indebtedness, demand of payment, notice of acceptance of this Guaranty
Agreement, presentment, notice of protest, notice of dishonor, notice of the incurring by Borrower
of additional indebtedness, and all other notices and demands with respect to the Guaranteed
Indebtedness and this Guaranty Agreement.



     19. Incorporation of Credit Agreement. The Credit Agreement, and all of the terms
thereof, are incorporated herein by reference (including, without limitation, Section 10.03(b) and
10.19 thereof), the same as if stated verbatim herein, and each Guarantor agrees that
Administrative Agent and the Lenders may exercise any and all rights granted to any of them under
the Credit Agreement and the other Loan Documents without affecting the validity or enforceability
of this Guaranty Agreement.



     20. Entire Agreement. This Guaranty Agreement embodies the final, entire agreement of
each Guarantor, agent and the other Loan Parties with respect to each Guarantor’s guaranty of the
Guaranteed Indebtedness and supersedes any and all prior commitments, agreements, representations,
and understandings, whether written or oral, relating to the subject matter hereof. This Guaranty
Agreement is intended by each Guarantor, Administrative Agent and the other Loan Parties as a final
and complete expression of the terms of the Guaranty Agreement, and no course of dealing among any
Guarantor, the Administrative Agent and any other Loan Parties, no course of performance, no trade
practices, and no evidence of prior, contemporaneous or subsequent oral agreements or discussions
or other extrinsic evidence of any nature shall be used to contradict, vary, supplement or modify
any term of this Guaranty Agreement.



FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 6




 









 





     21. No Waiver. No failure or delay by the Administrative Agent or any Secured Party
in exercising any right or power hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.



     22. Reserved.



     23. Survival. All covenants, agreements, representations and warranties made by the
Loan Parties in the Loan Documents and in the certificates or other instruments delivered in
connection with or pursuant to this Guaranty Agreement or any other Loan Document shall be
considered to have been relied upon by the other parties hereto and shall survive the execution and
delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent or any Secured Party may have had notice or knowledge of any Default
or incorrect representation or warranty at the time any credit is extended hereunder, and shall
continue in full force and effect until the Obligations have been Fully Satisfied.



     24. Counterparts. This Guaranty Agreement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall constitute an original,
but all of which when taken together shall constitute a single contract. Delivery of an executed
counterpart of a signature page of this Guaranty Agreement by telecopy or other electronic
transmission shall be effective as delivery of a manually executed counterpart of this Guaranty
Agreement.



     25. Severability. Any provision of this Guaranty Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.



     26. Governing Law. This Guaranty Agreement shall be governed by and construed in
accordance with the applicable law pertaining in the State of New York, other than those conflict
of law provisions that would defer to the substantive laws of another jurisdiction. This governing
law election has been made by the parties in reliance (at least in part) on Section 5—1401 of the
General Obligations Law of the State of New York, as amended (as and to the extent applicable), and
other applicable law.



     27. Jurisdiction. EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR
ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW
YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF
NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED
BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH
ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY AGREEMENT OR ANY OTHER
LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY OTHER SECURED PARTY MAY
OTHERWISE HAVE TO BRING ANY ACTION OR



FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 7





 









 







PROCEEDING RELATING TO THIS GUARANTY AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY
GUARANTOR OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




     28. Venue. Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or relating to this
Guaranty Agreement or any other Loan Document in any court referred to paragraph 27. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such court.



     29. Service of Process. Each party to this Guaranty Agreement irrevocably consents to
service of process in the manner provided for notices in paragraph 16. Nothing in this Guaranty
Agreement or any other Loan Document will affect the right of any party to this Guaranty Agreement
to serve process in any other manner permitted by law. Each Guarantor hereby irrevocably
designates, appoints and empowers the Borrower as its designee, appointee and agent to receive,
accept and acknowledge for and on its behalf, and in respect of its property, service of any and
all legal process, summons, notices and documents which may be served in any such action or
proceeding.



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



     31. Headings. All paragraph headings used herein are for convenience of reference
only, are not part of this Guaranty Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Guaranty Agreement.



     EXECUTED as of the date first written above.



	 	 	 	 	 

	 	 	GUARANTORS:
	 
	 	 	 	 
	 	 	ALLIED AIR ENTERPRISES INC.
	 	 	ADVANCED DISTRIBUTOR PRODUCTS LLC
	 	 	HEATCRAFT INC.
	 	 	HEATCRAFT REFRIGERATION PRODUCTS LLC
	 	 	LENNOX GLOBAL LTD.
	 	 	LENNOX INDUSTRIES INC.
	 	 	SERVICE EXPERTS LLC
	 	 	SERVICE EXPERTS HEATING & AIR CONDITIONING LLC
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Rick Pelini, Authorized Officer for each Guarantor






     FOURTH AMENDED AND RESTATED SUBSIDIARY GUARANTY AGREEMENT, Page 8




 











 





EXHIBIT “A”

TO




GUARANTY AGREEMENT



Subsidiary Joinder Agreement


EXHIBIT “A” to GUARANTY AGREEMENT (Subsidiaries), Cover Page





 









 








SUBSIDIARY JOINDER AGREEMENT




     This SUBSIDIARY JOINDER AGREEMENT (the “Agreement”) dated as of _______________ __,
201_ is executed by the undersigned (the “Debtor”) for the benefit of JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION, in its capacity as agent for the lenders party to the hereafter identified
Credit Agreement (in such capacity herein, the “Agent”) and for the benefit of such lenders
in connection with that certain Fourth Amended and Restated Revolving Credit Facility Agreement
among LENNOX INTERNATIONAL INC. (“Borrower”), the lenders party thereto (the
“Lenders”), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as the administrative agent for the
Lenders (the “Agent”) (such Credit Agreement, as it may hereafter be amended or otherwise
modified from time to time, being hereinafter referred to as the “Credit Agreement”, and
capitalized terms not otherwise defined herein shall have the same meaning as set forth in the
Credit Agreement) (as modified, the “Credit Agreement”, and capitalized terms not otherwise
defined herein being used herein as defined in the Credit Agreement).



     The Debtor [is a newly formed or newly acquired Material Subsidiary and] is required to
execute this Agreement pursuant to Sections 5.11 of the Credit Agreement.



     NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Debtor hereby agrees as follows:



     1. The Debtor hereby assumes all the obligations of a “Guarantor” under the Guaranty Agreement
and agrees that it is a “Guarantor” and bound as a “Guarantor” under the terms of the Guaranty
Agreement as if it had been an original signatory thereto. In accordance with the foregoing and
for valuable consideration, the receipt and adequacy of which are hereby acknowledged, Debtor
irrevocably and unconditionally guarantees to the Administrative Agent and the other Secured
Parties the full and prompt payment and performance of the Guaranteed Indebtedness (as defined in
the Guaranty Agreement) upon the terms and conditions set forth in the Guaranty Agreement.



     2. This Agreement shall be deemed to be part of, and a modification to, the Guaranty Agreement
and shall be governed by all the terms and provisions of the Guaranty Agreement, which terms are
incorporated herein by reference, are ratified and confirmed and shall continue in full force and
effect as valid and binding agreements of Debtor enforceable against Debtor. The Debtor hereby
waives notice of Agent’s, the Issuing Bank’s or any other Secured Parties’ acceptance of this
Agreement.



     IN WITNESS WHEREOF, the Debtor has executed this Agreement as of the day and year first
written above.



	 	 	 	 	 
	 	Debtor:

 	 
	 	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


SUBSIDIARY JOINDER AGREEMENT, Solo Page





 









 








EXHIBIT “D

TO

LENNOX INTERNATIONAL INC.

FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




INCREASED COMMITMENT SUPPLEMENT


EXHIBIT D, Cover Page




 









 





INCREASED COMMITMENT SUPPLEMENT





     This INCREASED COMMITMENT SUPPLEMENT (this “Supplement”) is dated as of ____________,
___ and entered into by and among LENNOX INTERNATIONAL INC., a Delaware corporation (the
“Borrower”), each of the banks or other lending institutions which is a signatory hereto
(the “Lenders”), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as agent for itself and the
other lenders (in such capacity, together with its successors in such capacity, the
“Agent”), and is made with reference to that certain Fourth Amended and Restated Revolving
Credit Facility Agreement dated as of October 21, 2011 (as amended, the “Credit
Agreement”), by and among the Company, certain lenders and the Agent. Capitalized terms used
herein without definition shall have the same meanings herein as set forth in the Credit Agreement.



RECITALS




     WHEREAS, pursuant to Section 2.19 of the Credit Agreement, the Borrower and the Lenders are
entering into this Increased Commitment Supplement to provide for the increase of the aggregate
Revolving Commitments;



     WHEREAS, each Lender [party hereto and already a party to the Credit Agreement] wishes to
increase its Revolving Commitment [, and each Lender, to the extent not already a Lender party to
the Credit Agreement (herein a “New Lender”), wishes to become a Lender party to the Credit
Agreement];5



     WHEREAS, the Lenders are willing to agree to supplement the Credit Agreement in the manner
provided herein.



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



     Section 1. Increase in Revolving Commitments. Subject to the terms and conditions
hereof, each Lender severally agrees that its Revolving Commitment shall be increased to [or in the
case of a New Lender, shall be] the amount set forth opposite its name on the signature pages
hereof.



     Section 2. [New Lenders. Each New Lender (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the most recent financial statements of the Borrower
delivered under Section 5.01 and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Supplement; (ii) agrees that it
has, independently and without reliance upon the Agent, any other Lender or any of their Related
Parties and based on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Supplement; (iii) agrees that it will,
independently and without reliance upon the Agent, any other Lender or any of their Related Parties
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit Agreement;
(iv) appoints and authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental thereto; and
(v) agrees that it is a “Lender” under the Credit Agreement and will perform in accordance





 




			
	5	 	Bracketed alternatives should be included if there are New Banks.




INCREASED COMMITMENT SUPPLEMENT, Page 1




 









 




with
their terms all of the obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender.




     Section 3. Representations and Warranties. In order to induce the Lenders to enter
into this Supplement and to supplement the Credit Agreement in the manner provided herein, Borrower
represents and warrants to Agent and each Lender that (a) the representations and warranties of
the Borrower and the Guarantors contained in the Loan Documents are and will be true, correct and
complete in all material respects on and as of the effective date hereof to the same extent as
though made on and as of that date and for that purpose, this Supplement shall be deemed to be a
Loan Document, and (b) no event has occurred and is continuing or will result from the consummation
of the transactions contemplated by this Supplement that would constitute a Default.



     Section 4. Effect of Supplement. The terms and provisions set forth in this
Supplement shall modify and supersede all inconsistent terms and provisions set forth in the Credit
Agreement and except as expressly modified and superseded by this Supplement, the terms and
provisions of the Credit Agreement and the other Loan Documents are ratified and confirmed and
shall continue in full force and effect. The Borrower, the Agent, and the Lenders party hereto
agree that the Credit Agreement as supplemented hereby and the other Loan Documents shall continue
to be legal, valid, binding and enforceable in accordance with their respective terms. Any and all
agreements, documents, or instruments now or hereafter executed and delivered pursuant to the terms
hereof or pursuant to the terms of the Credit Agreement as supplemented hereby, are hereby amended
so that any reference in such documents to the Agreement shall mean a reference to the Agreement as
supplemented hereby.



     Section 5. Applicable Law. This Supplement shall be governed by and construed in
accordance with the applicable law pertaining in the State of New York, other than those conflict
of law provisions that would defer to the substantive laws of another jurisdiction. This governing
law election has been made by the parties in reliance (at least in part) on Section 5–1401 of the
General Obligations Law of the State of New York, as amended (as and to the extent applicable), and
other applicable law.



     Section 7. Counterparts, Effectiveness. This Supplement may be executed in any number
of counterparts, by different parties hereto in separate counterparts and on telecopy counterparts,
each of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may be detached from
multiple separate counterparts and attached to a single counterpart so that all signature pages are
physically attached to the same document. This Supplement shall become effective upon the
execution of a counterpart hereof by the Borrower, the Lenders and receipt by the Borrower and the
Agent of written or telephonic notification of such execution and authorization of delivery
thereof.



     Section 8. ENTIRE AGREEMENT. THIS SUPPLEMENT EMBODIES THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS
COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO
THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.


INCREASED COMMITMENT SUPPLEMENT, Page 2





 









 








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



	 	 	 	 	 	 	 	 	 

	 	 	LENNOX INTERNATIONAL INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	New Total Revolving Commitment:
	 	 	 	 	 	 	 	 
	$                                        	 	JPMORGAN CHASE BANK,	 	 
	 	 	NATIONAL ASSOCIATION, as the Agent	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	$                                        	 	[BANK]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 
	$                                        	 	[NEW LENDER]	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 





INCREASED COMMITMENT SUPPLEMENT, Page 3






 









 








CONSENT OF GUARANTORS




     Each Guarantor: (i) consents and agrees to this Supplement; (ii) agrees that each of the Loan
Documents to which it is a party is in full force and effect and continues to be its legal, valid
and binding obligation enforceable in accordance with its respective terms; and (iii) agrees that
the obligations, indebtedness and liabilities of the Borrower arising as a result of the increase
in the Revolving Commitments contemplated hereby are “Guaranteed Indebtedness” as defined in the
Guaranty Agreement.



	 	 	 	 	 
	 	[List Guarantors]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


INCREASED COMMITMENT SUPPLEMENT, Page 4




 









 








EXHIBIT “E”

TO

LENNOX INTERNATIONAL INC.

CREDIT AGREEMENT




Borrowing Request


EXHIBIT E, Cover Page




 









 








BORROWING REQUEST



___________, __, ____



JPMorgan Chase Bank, National Association

Loan and Agency Services Group

10 South Dearborn Street, 7th Floor

Chicago, IL 60603

Attention: Nan Wilson

Telephone: 312-385-7084

Telecopy: 888-292-9533




and each Lender




Ladies and Gentlemen:





     The undersigned, Lennox International Inc. (the “Borrower”), refers to the Fourth
Amended and Restated Revolving Credit Facility Agreement dated as of October 21, 2011 among the
Borrower, the Lenders party thereto and JPMorgan Chase Bank, National Association as the
Administrative Agent (as otherwise modified from time to time, the “Credit Agreement”).
Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to
such terms in the Credit Agreement.



     The Borrower hereby gives the Administrative Agent and the Lenders notice pursuant to
Section 2.03 of the Credit Agreement that the Borrower requests a Borrowing under the Credit
Agreement, and in connection therewith sets forth below the information relating to such Borrowing
(the “Requested Borrowing”).




	 	(i)	 	The date of the Requested Borrowing is ______________;
	 
	 	(ii)	 	The aggregate principal amount of the Requested Borrowing is
$_______________;
	 
	 	(iii)	 	The Type or Types of the Borrowing requested (i.e., ABR Borrowing or
Eurodollar Borrowing) and, if applicable the Interest Periods applicable
thereto are set forth in the table below:





	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Interest Period	 
	Amount	 	Type	 	 	(if applicable)	 
	1.
	 	 	 	 	 	_____ Month(s)
	2.
	 	 	 	 	 	_____ Month(s)
	3.
	 	 	 	 	 	_____ Month(s)
	4.
	 	 	 	 	 	_____ Month(s)
	5.
	 	 	 	 	 	_____ Month(s)
	6.
	 	 	 	 	 	_____ Month(s)







	 	(vi)	 	The proceeds of the Requested Borrowing should be disbursed directly to
the entities in the amounts and in accordance with the transfer instructions
set forth in the table below:




BORROWING REQUEST, Page 1




 









 








	 	 	 	 	 	 	 	 	 
	Dollar Amount	 	Recipient	 	 	Instructions	 
	$
	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 
	$
	 	 	 	 	 	 	 	 






     By its execution below, the Borrower represents and warrants to the Administrative Agent and
the Lenders:



          (i) At the time of and immediately after giving effect to the Requested Borrowing, no Default
exists;




          (ii) The representations and warranties of each Loan Party set forth in the Loan Documents
shall be true and correct on and as of the date of such Requested Borrowing except to the extent
such representations and warranties specifically relate to any earlier date in which case such
representations and warranties shall have been true and correct in all material respects as of such
earlier date; and




          (iii) After giving effect to the credit extended pursuant to this request, the total Revolving
Exposure of all Lenders shall not exceed the total Revolving Commitments of all Lenders.




     The instructions set forth herein are irrevocable, except as otherwise provided by the Credit
Agreement. A telecopy of these instructions shall be deemed valid and may be accepted and relied
upon by the Administrative Agent and the Lenders as an original.



	 	 	 	 	 
	 	LENNOX INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


BORROWING REQUEST, Page 2




 









 








EXHIBIT “F”

TO

LENNOX INTERNATIONAL INC.

FOURTH AMENDED AND RESTATED REVOLVING CREDIT FACILITY AGREEMENT




Interest Election Request


EXHIBIT F, Cover Page





 









 








INTEREST ELECTION REQUEST




___________ ___, 201_



JPMorgan Chase Bank, National Association

Loan and Agency Services Group

10 South Dearborn Street, 7th Floor

Chicago, IL 60603

Attention: Nan Wilson

Telephone: 312-385-7084

Telecopy: 888-292-9533




and each Lender




Ladies and Gentlemen:





     The undersigned, Lennox International Inc. (the “Borrower”), refers to the Fourth
Amended and Restated Revolving Credit Facility Agreement dated as of October 21, 2011 among the
Borrower, the Lenders party thereto and JPMorgan Chase Bank, National Association, as the
Administrative Agent (as amended or otherwise modified from time to time, the “Credit
Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.



     The Borrower hereby gives the Administrative Agent and the Lenders notice pursuant to
Section 2.07 of the Credit Agreement that the Borrower requests a conversion or continuation (a
“Change”) of the Borrowing or Borrowings specified on Schedule 1.



     By its execution below, the Borrower represents and warrants to the Administrative Agent and
the Lenders:



          (i) At the time of and immediately after giving effect to the requested Change, no Default
exists; and




          (ii) The representations and warranties of each Loan Party set forth in the Loan Documents
shall be true and correct on and as of the date of the requested Change except to the extent such
representations and warranties specifically relate to any earlier date in which case such
representations and warranties shall have been true and correct in all material respects as of such
earlier date.




     The instructions set forth herein are irrevocable, except as otherwise provided by the Credit
Agreement. A telecopy of these instructions shall be deemed valid and may be accepted and relied
upon by the Administrative Agent and the Lenders as an original.



	 	 	 	 	 
	 	LENNOX INTERNATIONAL INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


INTEREST ELECTION REQUEST, Solo Page




 









 








SCHEDULE 1

TO

INTEREST ELECTION REQUEST




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Current Type	 	 	 	Current	 	 	 	 	 	New	 	 
	Current Class	 	(ABR or	 	Current	 	Interest Period	 	Continue as	 	Convert	 	Interest Period	 	Effective
	Revolver)	 	Eurodollar)	 	Principal Amount	 	Expiration Date	 	(Type)	 	to (Type)	 	Length	 	Date