Exhibit 10.39






Exhibit 10.39




EXECUTION VERSION




Published CUSIP Number: 052931AK8




AMENDED AND RESTATED

CREDIT AGREEMENT




Dated as of September 13, 2011



among



AUTOZONE, INC.,

as Borrower,



THE SEVERAL LENDERS

FROM TIME TO TIME PARTY HERETO



AND



BANK OF AMERICA, N.A.,

as Administrative Agent and Swingline Lender



and



JPMORGAN CHASE BANK, N.A.,

as Syndication Agent




MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

J.P. MORGAN SECURITIES LLC,

as Joint Lead Arrangers




and



MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

J.P. MORGAN SECURITIES LLC,

SUNTRUST ROBINSON HUMPHREY, INC.,

U.S. BANK NATIONAL ASSOCIATION,

WELLS FARGO SECURITIES, LLC

and

BARCLAYS CAPITAL,

as Joint Book Runners



and



SUNTRUST BANK,

U.S. BANK NATIONAL ASSOCIATION,

WELLS FARGO BANK, NATIONAL ASSOCIATION

and

BARCLAYS BANK PLC,

as Documentation Agents


 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 1 DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	1	 
	1.2 Computation of Time Periods
	 	 	20	 
	1.3 Accounting Terms
	 	 	20	 
	1.4 Time of Day
	 	 	20	 
	 
	 	 	 	 
	SECTION 2 CREDIT FACILITIES
	 	 	20	 
	 
	 	 	 	 
	2.1 Revolving Loans
	 	 	20	 
	2.2 Reserved
	 	 	22	 
	2.3 Swingline Loan Subfacility
	 	 	22	 
	2.4 Letters of Credit
	 	 	24	 
	 
	 	 	 	 
	SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES
	 	 	32	 
	 
	 	 	 	 
	3.1 Default Rate
	 	 	32	 
	3.2 Extension and Conversion
	 	 	32	 
	3.3 Prepayments
	 	 	33	 
	3.4 Termination, Reduction and Increase of Revolving Committed Amount
	 	 	34	 
	3.5 Fees
	 	 	37	 
	3.6 Capital Adequacy
	 	 	38	 
	3.7 Inability To Determine Interest Rate
	 	 	38	 
	3.8 Illegality
	 	 	38	 
	3.9 Yield Protection
	 	 	39	 
	3.10 Withholding Tax Exemption
	 	 	39	 
	3.11 Indemnity
	 	 	40	 
	3.12 Pro Rata Treatment
	 	 	41	 
	3.13 Payments Generally; Administrative Agent’s Clawback
	 	 	41	 
	3.14 Sharing of Payments
	 	 	42	 
	3.15 Payments, Computations, Etc.
	 	 	43	 
	3.16 Evidence of Debt
	 	 	44	 
	3.17 Replacement of Lenders
	 	 	45	 
	3.18 Cash Collateral
	 	 	45	 
	3.19 Defaulting Lenders
	 	 	46	 
	 
	 	 	 	 
	SECTION 4 CONDITIONS
	 	 	48	 
	 
	 	 	 	 
	4.1 Closing Conditions
	 	 	48	 
	4.2 Conditions to all Extensions of Credit
	 	 	49	 
	 
	 	 	 	 
	SECTION 5 REPRESENTATIONS AND WARRANTIES
	 	 	50	 
	 
	 	 	 	 
	5.1 Financial Position; No Internal Control Event
	 	 	50	 
	5.2 Organization; Existence; Compliance with Law
	 	 	50	 
	5.3 Power; Authorization; Enforceable Obligations
	 	 	50	 
	5.4 No Legal Bar
	 	 	51	 
	5.5 No Material Litigation
	 	 	51	 
	5.6 No Default
	 	 	51	 
	5.7 Ownership of Property; Liens
	 	 	51	 





 


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	 	 	Page	 
	 

	5.8 No Burdensome Restrictions
	 	 	51	 
	5.9 Taxes
	 	 	51	 
	5.10 ERISA
	 	 	52	 
	5.11 Governmental Regulations, Etc.
	 	 	52	 
	5.12 Subsidiaries
	 	 	53	 
	5.13 Purpose of Loans
	 	 	53	 
	5.14 Disclosure
	 	 	53	 
	5.15 Taxpayer Identification Number
	 	 	54	 
	5.16 Environmental Compliance
	 	 	54	 
	5.17 Solvency
	 	 	54	 
	5.18 OFAC
	 	 	54	 
	5.19 Patriot Act
	 	 	54	 
	 
	 	 	 	 
	SECTION 6 AFFIRMATIVE COVENANTS
	 	 	55	 
	 
	 	 	 	 
	6.1 Information Covenants
	 	 	55	 
	6.2 Preservation of Existence and Franchises
	 	 	58	 
	6.3 Books and Records
	 	 	58	 
	6.4 Compliance with Law
	 	 	58	 
	6.5 Payment of Taxes and Other Indebtedness
	 	 	58	 
	6.6 Insurance
	 	 	58	 
	6.7 Maintenance of Property
	 	 	59	 
	6.8 Use of Proceeds
	 	 	59	 
	6.9 Audits/Inspections
	 	 	59	 
	6.10 Adjusted Debt to EBITDAR Ratio
	 	 	59	 
	6.11 Interest Coverage Ratio
	 	 	59	 
	 
	 	 	 	 
	SECTION 7 NEGATIVE COVENANTS
	 	 	59	 
	 
	 	 	 	 
	7.1 Liens
	 	 	59	 
	7.2 Nature of Business
	 	 	60	 
	7.3 Consolidation, Merger, Sale or Purchase of Assets, etc.
	 	 	60	 
	7.4 Fiscal Year
	 	 	61	 
	7.5 Subsidiary Indebtedness
	 	 	61	 
	 
	 	 	 	 
	SECTION 8 EVENTS OF DEFAULT
	 	 	62	 
	 
	 	 	 	 
	8.1 Events of Default
	 	 	62	 
	8.2 Acceleration; Remedies
	 	 	64	 
	 
	 	 	 	 
	SECTION 9 AGENCY PROVISIONS
	 	 	64	 
	 
	 	 	 	 
	9.1 Appointment and Authority
	 	 	64	 
	9.2 Delegation of Duties
	 	 	65	 
	9.3 Exculpatory Provisions
	 	 	65	 
	9.4 Reliance on Communications
	 	 	65	 
	9.5 Notice of Default
	 	 	66	 
	9.6 Non-Reliance on Administrative Agent and Other Lenders
	 	 	66	 
	9.7 Indemnification
	 	 	66	 
	9.8 Administrative Agent in its Individual Capacity
	 	 	67	 
	9.9 Successor Administrative Agent
	 	 	67	 
	9.10 Syndication Agent
	 	 	68	 





 


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	 	 	Page	 
	 
	 	 	 	 
	SECTION 10 MISCELLANEOUS
	 	 	68	 
	 
	 	 	 	 
	10.1 Notices
	 	 	68	 
	10.2 Right of Set-Off
	 	 	70	 
	10.3 Successors and Assigns
	 	 	71	 
	10.4 No Waiver; Remedies Cumulative
	 	 	75	 
	10.5 Payment of Expenses, etc.
	 	 	75	 
	10.6 Amendments, Waivers and Consents
	 	 	76	 
	10.7 Counterparts
	 	 	77	 
	10.8 Headings
	 	 	77	 
	10.9 Survival
	 	 	77	 
	10.10 Governing Law; Submission to Jurisdiction; Venue
	 	 	78	 
	10.11 Severability
	 	 	78	 
	10.12 Entirety
	 	 	78	 
	10.13 Binding Effect; Termination
	 	 	79	 
	10.14 Confidentiality
	 	 	79	 
	10.15 Source of Funds
	 	 	79	 
	10.16 Conflict
	 	 	80	 
	10.17 USA PATRIOT Act Notice
	 	 	80	 
	10.18 No Advisory or Fiduciary Responsibility
	 	 	81	 





 


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SCHEDULES




	 	 	 

	Schedule 1.1

	 	Applicable Margin Pricing Levels
	Schedule 2.1(a)

	 	Lenders
	Schedule 2.1(b)(i)

	 	Form of Notice of Borrowing
	Schedule 2.1(e)

	 	Form of Revolving Note
	Schedule 2.3(d)

	 	Form of Swingline Note
	Schedule 2.4

	 	Existing Letters of Credit
	Schedule 3.2

	 	Form of Notice of Extension/Conversion
	Schedule 3.4(b)

	 	Form of New Commitment Agreement
	Schedule 5.5

	 	Material Litigation
	Schedule 5.12

	 	Subsidiaries
	Schedule 6.1(c)

	 	Form of Officer’s Compliance Certificate
	Schedule 7.5

	 	Subsidiary Indebtedness
	Schedule 10.1

	 	Administrative Agent’s Office; Certain Addresses for Notices
	Schedule 10.3(a)

	 	Form of Assignment and Acceptance





 


iv 









 





AMENDED AND RESTATED

CREDIT AGREEMENT




THIS AMENDED AND RESTATED CREDIT AGREEMENT dated as of September 13, 2011 (“Credit
Agreement”), is by and among AUTOZONE, INC., a Nevada corporation (the “Borrower”), the
several lenders identified on the signature pages hereto and such other lenders as may from time to
time become a party hereto (the “Lenders”), BANK OF AMERICA, N.A., as administrative agent
for the Lenders (in such capacity, the “Administrative Agent”), and JPMORGAN CHASE BANK,
N.A., as syndication agent (in such capacity, the “Syndication Agent”).



W I T N E S S E T H




WHEREAS, the Borrower, the lenders party thereto, Bank of America, N.A., as Administrative
Agent, and certain other Persons are party to that certain Credit Agreement dated as of July 9,
2009 (as amended prior to the date hereof, the “Existing Credit Agreement”).



WHEREAS, the Borrower, the Administrative Agent and the Lenders have agreed to amend and
restate the Existing Credit Agreement in its entirety upon and subject to the terms and conditions
set forth herein.



NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



SECTION 1




DEFINITIONS



1.1 Definitions.



As used in this Credit Agreement, the following terms shall have the meanings specified below
unless the context otherwise requires:




“Administrative Agent” shall have the meaning assigned to such term in the
heading hereof, together with any successors or assigns.




“Administrative Agent’s Fee Letter” means that certain letter agreement, dated
as of August 19, 2011, among the Administrative Agent, Merrill Lynch, Pierce, Fenner & Smith
Incorporated and the Borrower, as amended, modified, supplemented or replaced from time to
time.




“Administrative Agent’s Fees” shall have the meaning assigned to such term in
Section 3.5(b).




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




“Affiliate” means, with respect to any Person, any other Person (i) directly or
indirectly controlling or controlled by or under direct or indirect common control with such
Person or (ii) directly or indirectly owning or holding five percent (5%) or more of the
equity interest in such Person. For purposes of this definition, “control” when used with
respect to any Person means the
power to direct the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the foregoing.


 


 









 






“Applicable Margin” means for purposes of calculating the applicable Facility
Fee for any day under Section 3.5(a), the applicable interest rate for any day for
any Eurodollar Loan, the applicable Letter of Credit Fee for any day under Section
3.5(c)(i) and the applicable interest rate for any day for any Base Rate Loan, the
Applicable Margin for the appropriate Pricing Level set forth on Schedule 1.1. The
appropriate Pricing Level for the Applicable Margin calculation shall be determined and
adjusted on the following dates (each a “Calculation Date”):




(i) on the Closing Date;




(ii) where the Borrower has a senior unsecured (non-credit enhanced) long term
debt rating from S&P, Moody’s and/or Fitch, five (5) Business Days after a change in
any such debt rating, based on such debt rating(s); and




(iii) where the Borrower previously had a senior unsecured (non-credit
enhanced) long term debt rating from S&P, Moody’s and/or Fitch, but any or all three
of S&P, Moody’s and Fitch withdraws its rating such that the Borrower’s senior
unsecured (non-credit enhanced) long term debt no longer is rated by S&P, Moody’s or
Fitch, five (5) Business Days after the withdrawal of the last to exist of such
previous debt ratings, in which event the Applicable Margins (including the
Applicable Margin for the Facility Fee) shall be based on Pricing Level VI until the
earlier of (A) such time as S&P, Moody’s and/or Fitch provides another rating for
such debt of the Borrower or (B) the Required Lenders have agreed to an alternative
pricing grid or other method for determining Pricing Levels pursuant to an effective
amendment to this Credit Agreement.




The appropriate Pricing Level for the Applicable Margin calculation shall be effective from
a Calculation Date until the next such Calculation Date. The Administrative Agent shall
determine the appropriate Pricing Level for the Applicable Margin calculation promptly upon
receipt of the notices and information necessary to make such determination and shall
promptly notify the Borrower and the Lenders of any change thereof. Such determinations by
the Administrative Agent shall be conclusive, absent convincing evidence to the contrary.




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




“Approving Lenders” shall have the meaning specified in Section 3.4(d).




“Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P.
Morgan Securities LLC, together with any successors or assigns thereof.




“Assignee Group” means two or more Eligible Assignees that are Affiliates of one
another.




“Assignment and Assumption” means an assignment and assumption entered into by
a Lender and an Eligible Assignee with the consent of any party whose consent is required by
Section 10.3(b), and accepted by the Administrative Agent, in substantially the form
of Schedule 10.3(a) or any other form approved by the Administrative Agent.


 


2









 






“Audited Financial Statements” means the audited consolidated balance sheet of
the Borrower and its Subsidiaries for the fiscal year ended August 28, 2010, and the related
consolidated statements of income or operations, stockholders’ equity and cash flows for
such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.




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




“Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States
Code, as amended, modified, succeeded or replaced from time to time.




“Bankruptcy Event” means, with respect to any Person, the occurrence of any of
the following with respect to such Person: (i) a court or governmental agency having
jurisdiction in the premises shall enter a decree or order for relief in respect of such
Person in an involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of such Person or for any substantial part of
its Property or ordering the winding up or liquidation of its affairs; or (ii) there shall
be commenced against such Person an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or any case, proceeding or other
action for the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such involuntary case or
other case, proceeding or other action shall remain undismissed, undischarged or unbonded
for a period of sixty (60) consecutive days; or (iii) such Person shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary case under any such
law, or consent to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for any substantial
part of its Property or make any general assignment for the benefit of creditors; or (iv)
such Person shall be unable to, or shall admit in writing its inability to, pay its debts
generally as they become due.




“Base Rate” means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime rate” and (c)
the Eurodollar Rate plus 1.0%. “Prime Rate” means the rate of interest in effect for such
day as publicly announced from time to time by Bank of America as its “prime rate.” The
“prime rate” is a rate set by Bank of America based upon various factors including Bank of
America’s costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above, or below
such announced rate. Any change in such rate announced by Bank of America shall take effect
at the opening of business on the day specified in the public announcement of such change.




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




“Borrower” means the Person identified as such in the heading hereof, together
with any permitted successors and assigns.




“Business Day” means a day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required by law to close,
except that, when used in connection with a Eurodollar Loan, such day shall
also be a day on which dealings between banks are carried on in U.S. dollar deposits in
London, England and New York, New York.


 


3









 






“Calculation Date” has the meaning set forth in the definition of Applicable
Margin.




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




“Cash Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Administrative Agent, the respective L/C
Issuers or the Swingline Lender (as applicable) and the Lenders, as collateral for L/C
Obligations, Obligations in respect of Swingline Loans, or obligations of Lenders to fund
participations in respect of either thereof (as the context may require), cash or deposit
account balances or, if the applicable L/C Issuer or Swingline Lender benefitting from such
collateral shall agree in its sole discretion, other credit support, in each case pursuant
to documentation in form and substance satisfactory to (a) the Administrative Agent and (b)
the respective L/C Issuers or the Swingline Lender (as applicable). “Cash
Collateral” shall have a meaning correlative to the foregoing and shall include the
proceeds of such cash collateral and other credit support.




“Change in Law” means the occurrence, after the date of this Credit Agreement,
of any of the following: (a) the adoption or taking effect of any law, rule, regulation or
treaty, (b) any change in any law, rule, regulation or treaty or in the administration,
interpretation, implementation or application thereof by any Governmental Authority or (c)
the making or issuance of any request, rule, guideline or directive (whether or not having
the force of law) by any Governmental Authority; provided, that,
notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and
Consumer Protection Act and all requests, rules, guidelines, interpretations or directives
thereunder or issued in connection therewith and (y) all requests, rules, guidelines,
interpretations or directives promulgated by the Bank for International Settlements, the
Basel Committee on Banking Supervision (or any successor or similar authority) or the United
States 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.




“Change of Control” means the occurrence of either of the following events:




(a) a “person” or a “group” (within the meaning of Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934), other than a Permitted Holder (as
defined below), becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of more than 40% of the then outstanding voting stock of
the Borrower; or




(b) a majority of the board of directors of the Borrower shall consist of individuals
who are not Continuing Directors. For purposes hereof, “Continuing Directors” means, as of
any date of determination, (i) an individual who on the date two years prior to such
determination date was a member of the Borrower’s board of directors, or (ii) (a) any new
director whose nomination for election by the Borrower’s shareholders was approved by a vote
of a majority of the directors then still in office who either were directors on the date
two years prior to such determination date or whose nomination for election was previously
so approved (or who are Continuing Directors pursuant to clause (b) below) or (b) any
director who was elected by a majority of the directors then still in office who either were
directors on the date two years prior to such determination date or whose nomination for
election was previously so approved (or who are Continuing Directors pursuant to clause (a)
above).


 


4









 






For purposes hereof, “Permitted Holder” means (a) any “person” or “group” (within the
meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act of
1934) that, as of the Closing Date, is the “beneficial owner” (as defined in Rule 13d-3
under the Securities Exchange Act of 1934) of more than 29.0% of the then outstanding voting
stock of the Borrower and (b) any Affiliate of such a “person” or “group”.




Notwithstanding the foregoing, a Reorganization permitted under Section 7.3
hereof shall not be deemed a Change of Control for the purposes of this Credit Agreement.




“Change of Control Notice” shall have the meaning specified in Section
3.4(e).




“Change of Control Prepayment Amount” shall have the meaning specified in
Section 3.4(e).




“Change of Control Standstill Period” shall have the meaning specified in
Section 3.4(e).




“Closing Date” means the date hereof.




“Code” means the Internal Revenue Code of 1986, as amended, and any successor
statute thereto, as interpreted by the rules and regulations issued thereunder, in each case
as in effect from time to time. References to sections of the Code shall be construed also
to refer to any successor sections.




“Commercial Credit Business Arrangement” means any agreement between the
Borrower or any of its Subsidiaries and an entity that purchases such Person’s commercial
accounts receivable with only such limited recourse back to such Person as is customary in
factoring arrangements of this type.




“Commitment” means (i) with respect to each Lender at any time, the Revolving
Commitment of such Lender, (ii) with respect to the Swingline Lender, the Swingline
Commitment, and (iii) with respect to any L/C Issuer, the commitment to issue, extend and/or
amend Letters of Credit under the Letter of Credit Sublimit.




“Commitment Percentage” means, for any Lender, the percentage which such
Lender’s Revolving Commitment then constitutes of the aggregate Revolving Committed Amount,
subject to adjustment as provided herein, including in Section 3.19.




“Consolidated Adjusted Debt” means, at any time, the sum of, without
duplication, (i) Consolidated Funded Indebtedness and (ii) the product of Consolidated Rents
multiplied by 6.0.




“Consolidated EBITDA” means, for any period for the Borrower and its
Subsidiaries, (a) Consolidated Net Income plus (b) to the extent deducted in
calculating such Consolidated Net Income, the sum of (i) Consolidated Interest Expense
plus (ii) all provisions for any Federal, state or other domestic and foreign income
taxes plus (iii) depreciation and amortization, in each case on a consolidated basis
determined in accordance with GAAP applied on a consistent basis or otherwise defined
herein. Except as otherwise expressly provided herein, the applicable period shall be for
the four consecutive fiscal quarters ending as of the date of determination.




“Consolidated EBITDAR” means, for any period, the sum of Consolidated EBITDA
and Consolidated Rents. Except as otherwise expressly provided herein, the applicable
period shall be for the four consecutive fiscal quarters ending as of the date of
determination.


 


5









 






“Consolidated EBITR” means, for any period for the Borrower and its
Subsidiaries, Consolidated EBITDA minus depreciation and amortization plus
Consolidated Rents, in each case on a consolidated basis as determined in accordance with
GAAP applied on a consistent basis. Except as otherwise expressly provided herein, the
applicable period shall be for the four consecutive fiscal quarters ending as of the date of
determination.




“Consolidated Funded Indebtedness” means, at any time, the outstanding
principal amount of all Funded Indebtedness, without duplication and on a consolidated
basis, of the Borrower and its Subsidiaries at such time.




“Consolidated Interest Coverage Ratio” means, as of the last day of any fiscal
quarter of the Borrower, the ratio of (i) Consolidated EBITR to (ii) Consolidated Interest
Expense plus Consolidated Rents.




“Consolidated Interest Expense” means, for any period for the Borrower and its
Subsidiaries, net interest expense on a consolidated basis as determined in accordance with
GAAP applied on a consistent basis. Except as otherwise expressly provided, the applicable
period shall be for the four consecutive fiscal quarters ending as of the date of
determination.




“Consolidated Net Income” means, for any period for the Borrower and its
Subsidiaries, net income on a consolidated basis determined in accordance with GAAP applied
on a consistent basis, but excluding (i) share-based expenses and all other non-cash charges
(other than any such charges that would result in an accrual or a reserve for cash charges
in the future); (ii) non-recurring charges in an aggregate amount not to exceed $50,000,000
collectively, and/or non-recurring gains to the extent such non-recurring gains in the
aggregate exceed $50,000,000 collectively, in either event with respect to any twelve-month
period relevant for such calculation of the financial covenants contained in Sections
6.10 and 6.11; and (iii) all extraordinary items. Except as otherwise expressly
provided herein, the applicable period shall be for the four consecutive fiscal quarters
ending as of the date of determination.




“Consolidated Rents” means, for any period for the Borrower and its
Subsidiaries, all rental expense of the Borrower and its Subsidiaries for such period under
operating leases (specifically including rents paid in connection with synthetic leases, tax
retention operating leases, off-balance sheet loans or similar off-balance sheet financing
products), on a consolidated basis as determined in accordance with GAAP applied on a
consistent basis, but excluding rental expense related to any operating lease that has been
converted to a Capital Lease. Except as otherwise expressly provided herein, the applicable
period shall be for the four consecutive fiscal quarters ending as of the date of
determination.




“Credit Documents” means a collective reference to this Credit Agreement, the
Notes, the L/C Documents (except that L/C Documents shall not constitute Credit Documents
for purposes of Section 10.6), the Administrative Agent’s Fee Letter, any agreement
creating or perfecting rights in Cash Collateral pursuant to the provisions of Section
3.18 of this Credit Agreement, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto.




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


 


6









 






“Default” means any event, act or condition which with notice or lapse of time,
or both, would constitute an Event of Default.




“Defaulting Lender” means, subject to Section 3.19(b), any Lender that,
as reasonably determined by the Administrative Agent, (a) has failed to perform any of its
funding obligations hereunder, including in respect of its Loans or participations in
respect of Letters of Credit or Swingline Loans, within three Business Days of the date
required to be funded by it hereunder, (b) has notified the Borrower or the Administrative
Agent that it does not intend to comply with its funding obligations or has made a public
statement to that effect with respect to its funding obligations hereunder or generally
under other agreements in which it commits to extend credit, (c) has failed, within three
Business Days after request by the Administrative Agent, to confirm in a manner satisfactory
to the Administrative Agent that it will comply with its funding obligations, or (d) has, or
has a direct or indirect parent company that has, (i) become the subject of a proceeding
under any Debtor Relief Law, (ii) had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or
liquidation of its business or a custodian appointed for it, or (iii) taken any action in
furtherance of, or indicated its consent to, approval of or acquiescence in any such
proceeding or appointment; provided that a Lender shall not be a Defaulting Lender solely by
virtue of the ownership or acquisition of any equity interest in that Lender or any direct
or indirect parent company thereof by a Governmental Authority.




“Disapproving Lender” means such term as defined in Section 3.4(d).




“Documentation Agents” means SunTrust Bank, U.S. Bank National Association,
Wells Fargo Bank, National Association and Barclays Bank PLC, in each case, together with
its successors and assigns.




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




“Eligible Assignee” means any Person that meets the requirements to be an
assignee under Section 10.3(b)(iii) and 10.3(b)(v) (subject to such
consents, if any, as may be required under Section 10.3(b)(iii)).




“Environmental Laws” means any and all lawful and applicable Federal, state,
local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders,
decrees, permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous substances or wastes into the environment including, without limitation, ambient
air, surface water, ground water, or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.




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




“ERISA Affiliate” means any trade or business (whether or not incorporated) the
employees of which are treated as employees of the Borrower pursuant to Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating
to Section 412 of the Code).


 


7









 






“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b)
the withdrawal of the Borrower or any ERISA Affiliate from a Pension Plan subject to Section
4063 of ERISA during a plan year in which such entity was a “substantial employer” as
defined in Section 4001(a)(2) of ERISA or a cessation of operations that is treated as such
a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the
Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a
Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Pension Plan amendment as a termination under Sections 4041 or 4041A of
ERISA; (e) the institution by the PBGC of proceedings to terminate a Pension Plan; (f) any
event or condition which constitutes grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan; (g) the determination
that any Pension Plan’s final actuarially-certified funding target attainment percentage
drops below sixty percent (60%) as of the most recent valuation date as determined under
Section 430 of the Code and taking into account any exceptions, actuarial assumptions,
extensions of such date and supplemental or additional contributions provided for in or
permitted to be considered by Section 430 or the regulations promulgated thereunder; or (h)
the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due
but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.




“Eurodollar Base Rate” has the meaning specified in the definition of
Eurodollar Rate.




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




“Eurodollar Rate” means:




(a) For any Interest Period with respect to a Eurodollar Loan, a rate per annum
determined by the Administrative Agent pursuant to the following formula:



	 	 	 	 	 

	Eurodollar Rate =

	 	Eurodollar Base Rate
	 	 
	 	 	 
	 	1.00 – Eurodollar Reserve Percentage	 	 







Where, for the purposes of this clause (a):




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


 


8









 






(2) “Eurodollar Reserve Percentage” means, for any day during
any Interest Period, the reserve percentage (expressed as a decimal, carried
out to five decimal places) in effect on such day, whether or not applicable
to any Lender, under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “Eurocurrency liabilities”).
The Eurodollar Rate for each outstanding Eurodollar Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar
Reserve Percentage.




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




“Event of Default” means such term as defined in Section 8.1.




“Existing Credit Agreement” means such term as defined in the recitals hereto.




“Existing Letters of Credit” means the Letters of Credit outstanding on the
Closing Date and identified on Schedule 2.4.




“Facility Fee” shall have the meaning assigned to such term in Section
3.5(a).




“Facility Fee Calculation Period” shall have the meaning assigned to such term
in Section 3.5(a).




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




“Fees” means all fees payable pursuant to Section 3.5.


 


9









 






“Financial Officer” means, with respect to the Borrower, the Treasurer, the
Controller, the General Counsel, the Chief Financial Officer or the Chief Executive Officer
of the Borrower; provided that the Borrower may designate additional persons or
delete persons so authorized by written notice to the Administrative Agent from at least two
existing Financial Officers of the Borrower.




“Fitch” means Fitch Inc., or any successor or assignee of the business of such
company in the business of rating securities.




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




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




“Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with
respect to an L/C Issuer, such Defaulting Lender’s Commitment Percentage of the applicable
outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender’s
participation obligation has been reallocated to other Lenders or Cash Collateralized in
accordance with the terms hereof and (b) with respect to the Swingline Lender, such
Defaulting Lender’s Applicable Percentage of Swingline Loans other than Swingline Loans as
to which such Defaulting Lender’s participation obligation has been reallocated to other
Lenders or Cash Collateralized in accordance with the terms hereof.




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




“Funded Indebtedness” means, with respect to any Person (for purposes of this
sentence only, the “Debtor”), without duplication and on a consolidated basis, (i)
all Indebtedness of such Debtor for borrowed money; (ii) all purchase money Indebtedness of
such Debtor, including without limitation the principal portion of all obligations of such
Debtor under Capital Leases; (iii) all Guaranty Obligations of such Debtor with respect to
Funded Indebtedness of another Person; (iv) the maximum amount of all (x) drawn and
unreimbursed documentary letters of credit, (y) standby letters of credit and (z) bankers
acceptances, in each case issued or created for the account of such Debtor and, without
duplication, all drafts drawn thereunder (to the extent unreimbursed); and (v) all Funded
Indebtedness of another Person secured by a Lien on any Property of such Debtor, whether or
not such Funded Indebtedness has been assumed. The Funded Indebtedness of any Person shall
include the Funded Indebtedness of any partnership or joint venture in which such Person is
a general partner or joint venturer.




“GAAP” means generally accepted accounting principles in the United States
applied on a consistent basis and subject to the terms of Section 1.3 hereof.




“Governmental Authority” means any Federal, state, local or foreign court or
governmental agency, authority, instrumentality or regulatory body.


 


10









 






“Guaranty Obligation” means, with respect to any Person, without duplication,
any obligation of such Person (other than endorsements in the ordinary course of business of
negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any
Indebtedness of any
other Person in any manner, whether direct or indirect, and including without limitation any
obligation, whether or not contingent, (i) to purchase any such Indebtedness or any Property
constituting security therefor, (ii) to advance or provide funds or other support for the
payment or purchase of any such Indebtedness or to maintain working capital, solvency or any
other balance sheet condition of such other Person (including without limitation keep well
agreements, maintenance agreements, comfort letters or similar agreements or arrangements)
for the benefit of any holder of Indebtedness of such other Person, (iii) to lease or
purchase Property, securities or services primarily for the purpose of assuring the holder
of such Indebtedness, or (iv) to otherwise assure or hold harmless the holder of such
Indebtedness against loss in respect thereof. The amount of any Guaranty Obligation
hereunder shall (subject to any limitations set forth therein) be deemed to be an amount
equal to the outstanding principal amount (or maximum principal amount, if larger) of the
Indebtedness in respect of which such Guaranty Obligation is made.




“Indebtedness” of any Person means (i) all obligations of such Person for
borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made, (iii) all
obligations of such Person under conditional sale or other title retention agreements
relating to Property purchased by such Person (other than customary reservations or
retentions of title under agreements with suppliers entered into in the ordinary course of
business), (iv) all obligations of such Person issued or assumed as the deferred purchase
price of Property or services purchased by such Person (other than (a) trade accounts
payable in the ordinary course of business and, in each case, not past due for more than
ninety (90) days after the due date of such trade account payable and (b) unsecured
obligations of such Person due to vendors under any vendor factoring line in the ordinary
course of business), (v) all obligations of such Person under take-or-pay or similar
arrangements or under commodities agreements, (vi) 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, or payable out of the proceeds of production from, Property
owned or acquired by such Person, whether or not the obligations secured thereby have been
assumed, (vii) all Guaranty Obligations of such Person, (viii) the principal portion of all
obligations of such Person under Capital Leases, (ix) all obligations of such Person in
respect of interest rate protection agreements, foreign currency exchange agreements,
commodity purchase or option agreements or other interest or exchange rate or commodity
price hedging agreements, calculated as described below, (x) subject to the proviso below,
the maximum amount of all standby letters of credit issued or bankers’ acceptances created
for the account of such Person and, without duplication, all drafts drawn thereunder (to the
extent unreimbursed), (xi) all preferred stock issued by such Person and required by the
terms thereof to be redeemed, or for which mandatory sinking fund payments are due, by a
fixed date and (xii) the principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet financing
product to which such Person is a party, where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in accordance with
GAAP; provided that Indebtedness shall not include (i) any documentary letters of
credit or other letters of credit used by such Person for the financing of inventory in the
ordinary course of business, except to the extent such letters of credit have been drawn
upon and unreimbursed or (ii) any amounts received by such Person pursuant to a Commercial
Credit Business Arrangement. The Indebtedness of any Person shall include the Indebtedness
of any partnership or joint venture in which such Person is a general partner or a joint
venturer. For purposes hereof, obligations in respect of hedging agreements referred to in
clause (ix) above shall be calculated after taking into account the effect of any legally
enforceable netting agreement relating to such hedging obligations and shall be valued at
(1) for any date on or after the date such hedging obligations have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (2)
for any date prior to the date referenced
in clause (1) of this sentence, the amount(s) determined as the mark-to-market value(s)
for such hedging obligations, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such hedging obligations
(which may include a Lender or any Affiliate of a Lender).


 


11









 






“Information” has the meaning specified in Section 10.14.




“Interest Payment Date” means (i) as to any Base Rate Loan, the last Business
Day of each March, June, September and December, the date of repayment of principal of such
Loan and the Termination Date and (ii) as to any Eurodollar Loan or any Swingline Loan, the
last day of each Interest Period for such Loan, the date of repayment of principal of such
Loan and on the Termination Date, and in addition where the applicable Interest Period is
more than 3 months, then also on the date 3 months from the beginning of the Interest
Period, and each 3 months thereafter. If an Interest Payment Date falls on a date which is
not a Business Day, such Interest Payment Date shall be deemed to be the next succeeding
Business Day, except that in the case of Eurodollar Loans where the next
succeeding Business Day falls in the next succeeding calendar month, then on the next
preceding Business Day.




“Interest Period” means (i) as to any Eurodollar Loan, a period of one, two,
three or six month’s duration, as the Borrower may elect, commencing in each case, on the
date of the borrowing (including conversions, extensions and renewals) and (ii) as to any
Swingline Loan, a period commencing in each case on the date of the borrowing and ending on
the date agreed to by the Borrower and the Swingline Lender in accordance with the
provisions of Section 2.3(b)(i) (such ending date in any event to be not more than
seven (7) Business Days from the date of borrowing); provided, however, (A)
if any Interest Period would end on a day which is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day (except that in the case of Eurodollar
Loans where the next succeeding Business Day falls in the next succeeding calendar month,
then on the next preceding Business Day), (B) no Interest Period shall extend beyond the
Termination Date, and (C) in the case of Eurodollar Loans, where an Interest Period begins
on a day for which there is no numerically corresponding day in the calendar month in which
the Interest Period is to end, such Interest Period shall end on the last day of such
calendar month.




“Internal Control Event” means a material weakness in, or fraud that involves
management or other employees who have a significant role in, the Borrower’s internal
controls over financial reporting, in each case as described in the Securities Laws or as
otherwise determined by the Borrower’s external auditors, that has resulted in or could
reasonably be expected to result in a material misstatement in any financial information
delivered or to be delivered to the Administrative Agent or the Lenders, with respect to (i)
covenant compliance calculations provided hereunder or (ii) the assets, liabilities,
financial condition or results of operations of the Borrower and its Subsidiaries on a
consolidated basis, in any event that has not been (x) disclosed to the Administrative
Agent, who in turn discloses such material weaknesses to the Lenders, and (y) remedied or
otherwise diligently addressed (or is in the process of being diligently addressed) by the
Borrower including, if applicable, in accordance with recommendations made by the Borrower’s
auditors in consultation with the Borrower.




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




“Joint Book Runners” means Merrill Lynch, Pierce, Fenner & Smith Incorporated,
J.P. Morgan Securities LLC, SunTrust Robinson Humphrey, Inc., U.S. Bank National
Association, Wells
Fargo Securities, LLC and Barclays Capital, the investment banking division of Barclays Bank
PLC, in each case, together with its successors and assigns.


 


12









 






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




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




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




“L/C Documents” means, with respect to any Letter of Credit, such Letter of
Credit, any amendments thereto, any documents delivered in connection therewith, any
application therefor, and any agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter of Credit) governing or
providing for (i) the rights and obligations of the parties concerned or at risk or (ii) any
collateral security for such obligations.




“L/C Issuer” means (i) Bank of America, or any Subsidiary or Affiliate of Bank
of America designated by Bank of America, SunTrust or Wells Fargo, or, with the consent of
the Borrower and the Administrative Agent, any other Lender that has agreed to act as an
issuer of Letters of Credit, (ii) with respect to any Existing Letter of Credit, the Lender
that issued (in its capacity as an L/C Issuer hereunder) such Letter of Credit and (iii)
with respect to any Letter of Credit requested hereunder, the L/C Issuer that has agreed to
issue such Letter of Credit hereunder. In the event that there is more than one L/C Issuer
at any time, references herein and in the other Credit Documents to the L/C Issuer shall be
deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all
L/C Issuers, as the context requires.




“L/C Issuer Fees” shall have the meaning assigned to such term in Section
3.5(c)(ii).




“L/C Obligations” means, at any time, the sum of (i) the maximum amount which
is, or at any time thereafter may become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referred to in such
Letters of Credit plus (ii) the aggregate amount of all drawings under Letters of
Credit and honored by an L/C Issuer but not theretofore reimbursed, including all L/C
Borrowings.




“Lenders” means each of the Persons identified as a “Lender” on the signature
pages hereto, and each Person which may become a Lender by way of assignment in accordance
with the terms hereof, together with their successors and permitted assigns.




“Lending Installation” means, with respect to a Lender or the Administrative
Agent, any office, branch, subsidiary or affiliate of such Lender or the Administrative
Agent.




“Letter of Credit” means any letter of credit issued hereunder and shall
include the Existing Letters of Credit. A Letter of Credit may be a commercial letter of
credit or a standby letter of credit.




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




“Letter of Credit Expiration Date” means the day that is five (5) days prior to
the Termination Date (or, if such day is not a Business Day, the next preceding Business
Day).


 


13









 






“Letter of Credit Fee” shall have the meaning assigned to such term in
Section 3.5(c)(i).




“Letter of Credit Sublimit” means an amount equal to the lesser of the
Revolving Committed Amount and $200,000,000. The Letter of Credit Sublimit is part of, and
not in addition to, the Revolving Committed Amount.




“Lien” means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, security interest, encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or similar statement or
notice filed under the Uniform Commercial Code as adopted and in effect in the relevant
jurisdiction or other similar recording or notice statute, and any lease in the nature
thereof).




“Loan” or “Loans” means the Revolving Loans, the Swingline Loans (or
any Swingline Loan bearing interest at the Base Rate or the Quoted Rate and referred to as a
Base Rate Loan or a Quoted Rate Swingline Loan) and, to the extent applicable, the L/C
Borrowings, individually or collectively, as appropriate.




“Master Account” means such account at Bank of America as may be identified by
written notice from at least two Financial Officers of the Borrower to the Administrative
Agent or such other bank account as may be mutually agreed by the Borrower and the
Administrative Agent.




“Material Adverse Effect” means a material adverse effect on (i) the condition
(financial or otherwise), operations, business, assets or liabilities of the Borrower and
its Subsidiaries, taken as a whole, (ii) the ability of the Borrower to perform any material
obligation under the Credit Documents or (iii) any aspect of the Borrower or its business
that materially and adversely affects the rights and remedies of the Administrative Agent or
the Lenders under the Credit Documents.




“Materials of Environmental Concern” means any gasoline or petroleum (including
crude oil or any fraction thereof) or petroleum products or any hazardous or toxic
substances, materials or wastes, defined or regulated as such in or under any Environmental
Laws, including, without limitation, asbestos, polychlorinated biphenyls and
urea-formaldehyde insulation.




“Moody’s” means Moody’s Investors Service, Inc., or any successor or assignee
of the business of such company in the business of rating securities.




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




“Multiple Employer Plan” means a Plan which has two or more contributing
sponsors (including the Borrower or any ERISA Affiliate) at least two of whom are not under
common control, as such a plan is described in Section 4064 of ERISA.




“New Commitment Agreement” means a New Commitment Agreement substantially in
the form of Schedule 3.4(b), as executed pursuant to Section 3.4(b).




“Note” or “Notes” means any Revolving Note or the Swingline Note, as
the context may require.


 


14









 






“Notice of Borrowing” means a written notice of borrowing in substantially the
form of Schedule 2.1(b)(i), as required by Section 2.1(b)(i).




“Notice of Extension/Conversion” means the written notice of extension or
conversion in substantially the form of Schedule 3.2, as required by Section
3.2.




“Participant” has the meaning specified in Section 10.3(d).




“Participation Interest” means, the extension of credit by a Lender by way of a
purchase of a participation in any Swingline Loans as provided in Section
2.3(b)(iii) or in any Loans and other obligations as provided in Sections 2.4(c)
and 3.14.




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




“PCAOB” means the Public Company Accounting Oversight Board.




“Pension Act” means the Pension Protection Act of 2006.




“Pension Funding Rules” means the rules of the Code and ERISA regarding minimum
required contributions (including any installment payment thereof) to Pension Plans and set
forth in, with respect to plan years ending prior to the effective date of the Pension Act,
Section 412 of the Code and Section 302 of ERISA, each as in effect prior to the Pension Act
and, thereafter, Sections 412, 430, 431, 432 and 436 of the Code and Sections 302, 303, 304
and 305 of ERISA.




“Pension Plan” means any employee pension benefit plan (including a Multiple
Employer Plan) other than a Multiemployer Plan, that is maintained or is contributed to by
the Borrower and any ERISA Affiliate and is either covered by Title IV of ERISA or is
subject to the minimum funding standards under Section 412 of the Code.




“Permitted Liens” means:




(i) Liens in favor of the Administrative Agent on behalf of the Lenders;




(ii) Liens (other than Liens created or imposed under ERISA) for taxes,
assessments or governmental charges or levies not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as to which the
Property subject to any such Lien is not yet subject to foreclosure, sale or loss on
account thereof);




(iii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and suppliers and other Liens imposed by law or pursuant to
customary reservations or retentions of title arising in the ordinary course of
business, provided that any such Liens which are material secure only
amounts not yet due and payable or, if due and payable, are unfiled and no other
action has been taken to enforce the same or are being contested in good faith by
appropriate proceedings for which adequate reserves determined in accordance with
GAAP have been established (and as to which the Property subject to any such Lien is
not yet subject to foreclosure, sale or loss on account thereof);


 


15









 






(iv) Liens (other than Liens created or imposed under ERISA) incurred or
deposits made by the Borrower and its Subsidiaries in the ordinary course of
business in connection with workers’ compensation, unemployment insurance and other
types of social security, or to secure the performance of tenders, statutory
obligations, bids, leases, government contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the payment of
borrowed money);




(v) Liens in connection with attachments or judgments (including judgment or
appeal bonds) provided that the judgments secured shall, within 30 days
after the entry thereof, have been discharged or execution thereof stayed pending
appeal, or shall have been discharged within 30 days after the expiration of any
such stay;




(vi) easements, rights-of-way, restrictions (including zoning restrictions),
minor defects or irregularities in title and other similar charges or encumbrances
not, in any material respect, impairing the use of the encumbered Property for its
intended purposes;




(vii) leases or subleases granted to others not interfering in any material
respect with the business of the Borrower and its Subsidiaries taken as a whole;




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




(ix) Liens on assets at the time such assets are acquired by the Borrower or
any Subsidiary in accordance with Section 7.3(d); provided that such
Liens are not created in contemplation of such acquisition;




(x) Liens on assets of any Person at the time such Person becomes a Subsidiary
in accordance with Section 7.3(d); provided that such Liens are not
created in contemplation of such Person becoming a Subsidiary;




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




(xii) Liens on receivables sold pursuant to a Commercial Credit Business
Arrangement;




(xiii) Liens on inventory held by the Borrower or any of its Subsidiaries under
consignment;




(xiv) Liens on any inventory of the Borrower or any of its Subsidiaries in
favor of a vendor of such inventory, arising in the normal course of business upon
its sale to the Borrower or any such Subsidiary;




(xv) Liens, if any, in favor of the L/C Issuer and/or Swingline Lender to cash
collateralize or otherwise secure the obligations of a Defaulting Lender to fund
risk participations hereunder; and




(xvi) other Liens on Property of the Borrower and its Subsidiaries, so long as
the Borrower and its Subsidiaries own at all times Property (a) unencumbered by any
Liens other than Liens permitted by clauses (i) through (xv) above and (b) having an
aggregate fair market value of at least $2,000,000,000.


 


16









 






“Person” means any individual, partnership, joint venture, firm, corporation,
limited liability company, association, trust or other enterprise (whether or not
incorporated) or any Governmental Authority.




“Plan” means any employee benefit plan within the meaning of Section 3(3) of
ERISA maintained for employees of the Borrower, or with respect to a Pension Plan maintained
for employees of the Borrower or any ERISA Affiliate.




“Platform” has the meaning specified in Section 6.1.




“Pricing Level” means the applicable pricing level for the Applicable Margin
shown in Schedule 1.1.




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




“Quoted Rate” means, with respect to any Quoted Rate Swingline Loan, the fixed
percentage rate per annum offered by the Swingline Lender and accepted by the Borrower with
respect to such Swingline Loan as provided in accordance with the provisions of Section
2.3.




“Quoted Rate Swingline Loan” means a Swingline Loan bearing interest at a
Quoted Rate.




“Register” shall have the meaning given such term in Section 10.3(c).




“Registered Public Accounting Firm” has the meaning specified in the Securities
Laws and shall be independent of the Borrower as prescribed by the Securities Laws.




“Regulation D, T, U, or X” means Regulation D, T, U or X, respectively, of the
Board of Governors of the Federal Reserve System as from time to time in effect and any
successor to all or a portion thereof.




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




“Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing into the environment
(including the abandonment or discarding of barrels, containers and other closed receptacles
containing any Materials of Environmental Concern).




“Reorganization” shall have the meaning specified in Section 7.3.




“Replaced Lender” shall have the meaning specified in Section 3.17.




“Replacement Lender” shall have the meaning specified in Section 3.17.




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


 


17









 






“Required Lenders” means, as of any date of determination, Lenders having more
than 50% of the aggregate Revolving Committed Amount or, if the commitment of each Lender to
make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been
terminated pursuant to Section 8.2, Lenders holding in the aggregate more than 50%
of the total amount of outstanding Revolving Loans and Participation Interests (with the
aggregate amount of each Lender’s risk participation and funded participation in L/C
Obligations and Swingline Loans being deemed “held” by such Lender for purposes of this
definition); provided that the Commitment of, and the portion of the total amount of
outstanding Revolving Loans and Participation Interests held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a determination of Required
Lenders.




“Requirement of Law” means, as to any Person, the certificate of incorporation
and by-laws or other organizational or governing documents of such Person, and any law,
treaty, rule or regulation or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person or any of its
material property is subject.




“Revolving Commitment” means, with respect to each Lender, the commitment of
such Lender in an aggregate principal amount at any time outstanding not to exceed the
amount set forth opposite such Lender’s name on Schedule 2.1(a) (as such amount may
be reduced or increased from time to time in accordance with the provisions of this Credit
Agreement), (i) to make Revolving Loans in accordance with the provisions of Section
2.1(a), (ii) to purchase participation interests in Letters of Credit in accordance with
the provisions of Section 2.4(c), and (iii) to purchase participation interests in
the Swingline Loans in accordance with the provisions of Section 2.3(b)(iii).




“Revolving Committed Amount” shall have the meaning assigned to such term in
Section 2.1(a).




“Revolving Loans” shall have the meaning assigned to such term in Section
2.1(a).




“Revolving Note” means a promissory note of the Borrower in favor of a Lender
delivered pursuant to Section 2.1(e) and evidencing the Revolving Loans of such
Lender, as such promissory note may be amended, modified, restated or replaced from time to
time.




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




“Sarbanes-Oxley” means the Sarbanes-Oxley Act of 2002.




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




“Securities Laws” means the Securities Act of 1933, the Securities Exchange Act
of 1934, Sarbanes-Oxley and the applicable accounting and auditing principles, rules,
standards and practices promulgated, approved or incorporated by the SEC or the PCAOB.




“SPV” has the meaning set forth in Section 10.3(g).




 


18









 





“Solvent” or “Solvency” means, with respect to any Person as of a
particular date, that on such date (i) such Person is able to pay its debts and other
liabilities, and commitments as they mature in the normal course of business, (ii) such
Person is not obligated to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay as such debts and liabilities



mature in their ordinary course, (iii) such Person is not engaged in a business or a
transaction, and does not intend to engage in a business or a transaction, for which such
Person’s Property would constitute unreasonably small capital after giving due consideration
to the prevailing practice in the industry in which such Person is engaged or is to engage,
(iv) the fair market value of the Property of such Person is greater than the total amount
of liabilities, including, without limitation, contingent liabilities, of such Person and
(v) the present fair market value of the assets of such Person is not less than the amount
that will be required to pay the probable liability of such Person on its debts as they
become absolute and matured. In computing the amount of contingent liabilities at any time,
it is intended that such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.




“Subsidiary” means, as to any Person, (a) any corporation more than 50% of
whose stock of any class or classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (irrespective of whether or not at the
time, any class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries, and (b) any partnership, association, joint venture or
other entity in which such Person directly or indirectly through Subsidiaries has more than
50% equity interest at any time.




“SunTrust” means SunTrust Bank and its successors.




“Swingline Commitment” means the commitment of the Swingline Lender to make
Swingline Loans in an aggregate principal amount at any time outstanding of up to the
Swingline Committed Amount.




“Swingline Committed Amount” shall have the meaning assigned to such term in
Section 2.3(a).




“Swingline Lender” means Bank of America.




“Swingline Loan” shall have the meaning assigned to such term in Section
2.3(a).




“Swingline Note” means, to the extent requested by the Swingline Lender, the
promissory note of the Borrower in favor of the Swingline Lender in the original principal
amount of $75,000,000, as such promissory note may be amended, modified, restated or
replaced from time to time.




“Syndication Agent” means JPMorgan Chase Bank, N.A., together with any
successors and assigns.




“Terminating Lenders” shall have the meaning specified in Section
3.4(e).




“Termination Date” means September 13, 2016, as such date may be extended
pursuant to clause (d) of Section 3.4, provided, however that if
such date is not a Business Day, the Termination Date shall be the next preceding Business
Day.




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




“Unreimbursed Amount” has the meaning specified in Section 2.4(c)(i).


“Wells Fargo” means Wells Fargo Bank, N.A. and its successors.



 


19









 







1.2 Computation of Time Periods.



For purposes of computation of periods of time hereunder, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding.”



1.3 Accounting Terms.



Except as otherwise expressly provided herein, all accounting terms used herein shall be
interpreted, and all financial statements and certificates and reports as to financial matters
required to be delivered to the Lenders hereunder shall be prepared, in accordance with GAAP
applied on a consistent basis. All calculations made for the purposes of determining compliance
with this Credit Agreement shall (except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with the most recent annual or quarterly
financial statements delivered pursuant to Section 6.1 hereof (or, prior to the delivery of
the first financial statements pursuant to Section 6.1 hereof, consistent with the
financial statements as at August 28, 2010); provided, however, if (a) the Borrower
shall object to determining such compliance on such basis at the time of delivery of such financial
statements due to any change in GAAP or the rules promulgated with respect thereto or (b) the
Administrative Agent or the Required Lenders shall so object in writing within 30 days after
delivery of such financial statements, then the Administrative Agent and the Borrower shall
negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Required Lenders); provided
that, until so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents required under this
Credit Agreement or as reasonably requested hereunder setting forth a reconciliation between
calculations of such ratio or requirement made before and after giving effect to such change in
GAAP.



1.4 Time of Day.



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



SECTION 2




CREDIT FACILITIES



2.1 Revolving Loans.



(a) Revolving Commitment. Subject to the terms and conditions hereof and in reliance
upon the representations and warranties set forth herein, each Lender severally agrees to make
available to the Borrower revolving credit loans requested by the Borrower in Dollars
(“Revolving Loans”) up to such Lender’s Revolving Commitment from time to time from the
Closing Date until the Termination Date, or such earlier date as the Revolving Commitments shall
have been terminated as provided herein for the purposes hereinafter set forth; provided,
however, that the sum of the aggregate principal amount of outstanding Revolving Loans
shall not exceed ONE BILLION DOLLARS ($1,000,000,000.00) (as such aggregate maximum amount may be
reduced or increased from time to time as provided in Section 3.4, the “Revolving
Committed Amount”); provided, further, (i) with regard to each Lender
individually, the aggregate amount of such Lender’s outstanding Revolving Loans, pro rata share of
Swingline Loans and pro rata


 


20









 





share of L/C Obligations shall not exceed such Lender’s Revolving
Commitment, and (ii) with regard to the Lenders collectively, the sum of the aggregate principal amount of outstanding Revolving Loans
plus the aggregate principal amount of outstanding Swingline Loans plus the L/C
Obligations outstanding shall not at any time exceed the Revolving Committed Amount. Revolving
Loans may consist of Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower
may request, and may be repaid and reborrowed in accordance with the provisions hereof;
provided, however, that no more than borrowings of fifteen (15) Eurodollar Loans
shall be outstanding hereunder at any time. For purposes hereof, borrowings of Eurodollar Loans
with different Interest Periods shall be considered as separate Eurodollar Loans, even if they
begin on the same date, although borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to constitute a new
borrowing of Eurodollar Loans with a single Interest Period. Revolving Loans hereunder may be
repaid and reborrowed in accordance with the provisions hereof. Notwithstanding the foregoing, the
Borrower may not request any Loans hereunder while a Change of Control Standstill Period shall be
in effect pursuant to Section 3.4(e) hereof.




(b) Revolving Loan Borrowings.




(i) Notice of Borrowing. The Borrower shall request a Revolving Loan
borrowing by notice, which may be given by telephone and promptly confirmed in
writing. Each such notice must be received by the Administrative Agent not later
than (i) 12:00 noon on the Business Day of the requested borrowing in the case of
Base Rate Loans, and (ii) 11:00 A.M. three Business Days prior to the date of the
requested borrowing in the case of Eurodollar Loans. Each such request for
borrowing shall be irrevocable, executed by a Financial Officer of the Borrower and
shall specify (A) that a Revolving Loan is requested, (B) the date of the requested
borrowing (which shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Base Rate Loans,
Eurodollar Loans or a combination thereof, and if Eurodollar Loans are requested,
the Interest Period(s) therefor. If the Borrower shall fail to specify in any such
Notice of Borrowing (I) an applicable Interest Period in the case of a Eurodollar
Loan, then such notice shall be deemed to be a request for an Interest Period of one
month, or (II) the type of Revolving Loan requested, then such notice shall be
deemed to be a request for a Base Rate Loan hereunder. The Administrative Agent
shall give notice to each affected Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.1(b)(i), the contents thereof and each
such Lender’s share of any borrowing to be made pursuant thereto.




(ii) Minimum Amounts. Each borrowing of Revolving Loans shall be in a
minimum aggregate principal amount of $5,000,000 and integral multiples of
$1,000,000 in excess thereof (or the remaining amount of the Revolving Committed
Amount, if less).




(iii) Advances. Each Lender will make its Commitment Percentage of
each borrowing of Revolving Loans available to the Administrative Agent for the
account of the Borrower at the Administrative Agent’s office set forth on
Schedule 10.1 by 2:00 P.M. on the date specified in the applicable Notice of
Borrowing in Dollars and in funds immediately available to the Administrative Agent.
Such borrowing will then be made available to the Borrower by the Administrative
Agent by crediting the Master Account with the aggregate of the amounts made
available to the Administrative Agent by the Lenders and in like funds as received
by the Administrative Agent.



(c) Repayment. The principal amount of all Revolving Loans shall be due and payable
in full on the Termination Date, subject to the provisions of Sections 3.4(c) and
(e).



(d) Interest. Subject to the provisions of Section 3.1,


 


21









 






(i) Base Rate Loans. During such periods as Revolving Loans shall be
comprised in whole or in part of Base Rate Loans, such Base Rate Loans shall bear
interest at a per annum rate equal to the Base Rate plus the Applicable
Margin; and




(ii) Eurodollar Loans. During such periods as Revolving Loans shall be
comprised in whole or in part of Eurodollar Loans, such Eurodollar Loans shall bear
interest at a per annum rate equal to the Eurodollar Rate plus the
Applicable Margin.




Interest on Revolving Loans shall be payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified herein).



(e) Revolving Notes. The Revolving Loans made by each Lender shall, to the extent
requested by such Lender through the Administrative Agent, be evidenced by a duly executed
promissory note of the Borrower to such Lender in an original principal amount equal to such
Lender’s Revolving Commitment and in substantially the form of Schedule 2.1(e).



2.2 Reserved.



2.3 Swingline Loan Subfacility.



(a) Swingline Commitment. Subject to the terms and conditions set forth herein, the
Swingline Lender shall, in reliance upon the agreements of the other Lenders set forth in this
Section 2.3, make certain revolving credit loans requested by the Borrower in Dollars to
the Borrower (each a “Swingline Loan” and, collectively, the “Swingline Loans”)
from time to time from the Closing Date until the Termination Date for the purposes hereinafter set
forth; provided, however, (i) the aggregate principal amount of Swingline Loans
outstanding at any time shall not exceed SEVENTY-FIVE MILLION DOLLARS ($75,000,000.00) (the
“Swingline Committed Amount”), and (ii) the sum of the aggregate principal amount of
outstanding Revolving Loans plus the aggregate principal amount of outstanding Swingline
Loans plus the L/C Obligations outstanding shall not exceed the Revolving Committed Amount.
Swingline Loans hereunder shall be made as Base Rate Loans or Quoted Rate Swingline Loans as the
Borrower may request in accordance with the provisions of this Section 2.3, and may be
repaid and reborrowed in accordance with the provisions hereof. Notwithstanding the foregoing, (i)
the Borrower may not request any Loans hereunder while a Change of Control Standstill Period shall
be in effect pursuant to Section 3.4(e) hereof; and (ii) the Swingline Lender shall not be
under any obligation to issue a Swingline Loan if any Lender is at that time a Defaulting Lender,
unless the Swingline Lender has entered into arrangements, including the delivery of Cash
Collateral, with the Borrower or such Lender to eliminate the Swingline Lender’s actual or
potential Fronting Exposure (after giving effect to Section 3.19(a)(iv)) with respect to
the Defaulting Lender arising from either the Swingline Loan then proposed to be made and all other
Swingline Loans as to which the Swingline Lender has actual or potential Fronting Exposure, as it
may elect in its sole discretion.



(b) Swingline Loan Advances.




(i) Notices; Disbursement. Whenever the Borrower desires a Swingline
Loan advance hereunder it shall give written notice (or telephone notice promptly
confirmed in writing) to the Swingline Lender not later than 2:00 P.M. on the
Business Day of the requested Swingline Loan advance. Each such notice shall be
irrevocable and shall specify (A) that a Swingline Loan advance is requested, (B)
the date of the requested Swingline Loan advance (which shall be a Business Day) and
(C) the principal amount of the Swingline Loan advance requested. Each Swingline
Loan shall be made as a Base Rate
Loan or a Quoted Rate Swingline Loan and shall have such maturity date as the
Swingline Lender and the Borrower shall agree upon receipt by the Swingline Lender
of any such notice from the Borrower. The Swingline Lender shall initiate the
transfer of funds representing the Swingline Loan advance to the Master Account by
3:30 P.M. on the Business Day of the requested borrowing.


 


22









 






(ii) Minimum Amounts. Each Swingline Loan advance shall be in a
minimum principal amount of $5,000,000 and in integral multiples of $1,000,000 in
excess thereof (or the remaining amount of the Swingline Committed Amount, if less).




(iii) Repayment of Swingline Loans. The principal amount of all
Swingline Loans shall be due and payable on the earlier of (A) the maturity date
agreed to by the Swingline Lender and the Borrower with respect to such Loan (which
maturity date shall not be a date more than seven (7) Business Days from the date of
advance thereof), (B) the Termination Date, or (C) the demand of the Swingline
Lender. The Swingline Lender may, at any time, in its sole discretion, by written
notice to the Borrower and the Lenders, demand repayment of its Swingline Loans by
way of a Revolving Loan advance, in which case the Borrower shall be deemed to have
requested a Revolving Loan advance comprised solely of Base Rate Loans in the amount
of such Swingline Loans; provided, however, that any such demand
shall be deemed to have been given one Business Day prior to the Termination Date
and on the date of the occurrence of any Event of Default described in Section
8.1 and upon acceleration of the indebtedness hereunder and the exercise of
remedies in accordance with the provisions of Section 8.2. Each Lender
hereby irrevocably agrees to make its pro rata share of each such Revolving Loan in
the amount, in the manner and on the date specified in the preceding sentence (and
the Administrative Agent may apply Cash Collateral available with respect to the
applicable Swingline Loan) notwithstanding (I) the amount of such borrowing
may not comply with the minimum amount for advances of Revolving Loans otherwise
required hereunder, (II) whether any conditions specified in Section 4.2 are
then satisfied, (III) whether a Default or an Event of Default then exists, (IV)
failure of any such request or deemed request for Revolving Loan to be made by the
time otherwise required hereunder, (V) whether the date of such borrowing is a date
on which Revolving Loans are otherwise permitted to be made hereunder or (VI) any
termination of the Commitments relating thereto immediately prior to or
contemporaneously with such borrowing. In the event that any Revolving Loan cannot
for any reason be made on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding under the Bankruptcy
Code with respect to the Borrower), then each Lender hereby agrees that it shall
forthwith purchase (as of the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the Borrower on or after such date and prior
to such purchase) from the Swingline Lender such participations in the outstanding
Swingline Loans as shall be necessary to cause each such Lender to share in such
Swingline Loans ratably based upon its Commitment Percentage (determined before
giving effect to any termination of the Commitments pursuant to Section
3.4), provided that (A) all interest payable on the Swingline Loans
shall be for the account of the Swingline Lender until the date as of which the
respective participation is purchased and (B) at the time any purchase of
participations pursuant to this sentence is actually made, the purchasing Lender
shall be required to pay to the Swingline Lender, to the extent not paid to the
Swingline Lender by the Borrower in accordance with the terms of subsection (c)(ii)
hereof, interest on the principal amount of participation purchased for each day
from and including the day upon which such borrowing would otherwise have occurred
to but excluding the date of payment for such participation, at the rate equal to
the Federal Funds Rate.


 


23









 





(c) Interest on Swingline Loans.




(i) Subject to the provisions of Section 3.1, each Swingline Loan shall
bear interest as follows:




(A) Base Rate Loans. If such Swingline Loan is a Base Rate
Loan, at a per annum rate (computed on the basis of the actual number of
days elapsed over a year of 365 days) equal to the Base Rate plus
the Applicable Margin.




(B) Quoted Rate Swingline Loans. If such Swingline Loan is a
Quoted Rate Swingline Loan, at a per annum rate (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to the
Quoted Rate applicable thereto.




Notwithstanding any other provision to the contrary set forth in this Credit
Agreement, in the event that the principal amount of any Quoted Rate Swingline Loan
is not repaid on the last day of the Interest Period for such Loan, then such Loan
shall be automatically converted into a Base Rate Loan at the end of such Interest
Period.




(ii) Payment of Interest. Interest on Swingline Loans shall be payable
in arrears on each applicable Interest Payment Date (or at such other times as may
be specified herein).



(d) Swingline Note. The Swingline Loans shall, to the extent requested by the
Swingline Lender, be evidenced by a duly executed promissory note of the Borrower to the Swingline
Lender in an original principal amount equal to the Swingline Committed Amount substantially in the
form of Schedule 2.3(d).



2.4 Letters of Credit.



(a) The Letter of Credit Commitment.




(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer
agrees (subject, in the case of an L/C Issuer other than Bank of America, to any
maximum Letter of Credit commitment amount applicable to such L/C Issuer), in
reliance upon the agreements of the other Lenders set forth in this Section
2.4, (1) from time to time on any Business Day during the period from the
Closing Date until the Letter of Credit Expiration Date, to issue a requested Letter
of Credit for the account of the Borrower, and to amend or renew a Letter of Credit
previously issued by such L/C Issuer, in accordance with subsection (b) below, and
(2) to honor drafts under any Letter of Credit such L/C Issuer has issued; and (B)
the Lenders severally agree to participate in Letters of Credit issued for the
account of the Borrower; provided that no L/C Issuer shall be obligated to
make any L/C Credit Extension with respect to any Letter of Credit, and no Lender
shall be obligated to participate in any Letter of Credit, to the extent that, as of
the date of such L/C Credit Extension, (x) the sum of the aggregate principal amount
of outstanding Revolving Loans plus the aggregate principal amount of outstanding
Swingline Loans plus the L/C Obligations outstanding shall exceed the Revolving
Committed Amount or (y) the L/C Obligations would exceed the Letter of Credit
Sublimit. Within the foregoing limits, and subject to the terms and conditions
hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving,
and accordingly the Borrower may, during


 


24









 







the foregoing period, obtain Letters of
Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing
Letters of Credit shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and conditions
hereof. Notwithstanding the foregoing, the Borrower may not request any Letters of
Credit hereunder while a Change of Control Standstill Period shall be in effect
pursuant to Section 3.4(e) hereof.




(ii) No L/C Issuer shall be under any obligation to issue any Letter of Credit
if:




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




(B) the expiry date of such requested Letter of Credit would occur more
than eighteen (18) months after the date of issuance or last renewal, unless
the Required Lenders have approved such expiry date;




(C) the expiry date of such requested Letter of Credit would occur
after the Letter of Credit Expiration Date, unless all the Lenders have
approved such expiry date (pursuant to additional documentation in form and
substance satisfactory to the Administrative Agent and the applicable L/C
Issuer);




(D) such Letter of Credit is in a face amount less than $100,000, in
the case of a commercial Letter of Credit, or $100,000, in the case of a
standby Letter of Credit, or is to be denominated in a currency other than
Dollars;




(E) the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer applicable to letters of credit generally (it
being understood that each L/C Issuer acknowledges that (x) as of the
Closing Date, it is not aware of any such policies that would make it
impossible for the Borrower to have Letters of Credit issued hereunder for
use in the ordinary course of the Borrower’s business and in accordance with
its past practices and (y) it will not implement any such policies solely
with the intent to deprive the Borrower of having Letters of Credit issued
hereunder for use in the ordinary course of the Borrower’s business and in
accordance with its past practices); or




(F) any Lender is at that time a Defaulting Lender, unless the L/C
Issuer has entered into arrangements, including the delivery of Cash
Collateral, with the Borrower or such Lender to eliminate the L/C Issuer’s
actual or potential Fronting Exposure (after giving effect to Section
3.19(a)(iv)) with respect to the Defaulting Lender arising from either
the Letter of Credit then proposed to be
issued or that Letter of Credit and all other L/C Obligations as to
which the L/C Issuer has actual or potential Fronting Exposure, as it may
elect in its sole discretion.


 


25









 






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



(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Renewal Letters of
Credit.




(i) Each Letter of Credit shall be issued or amended, as the case may be, upon
the request of the Borrower delivered to an L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application, appropriately
completed and signed by a Financial Officer of the Borrower. Such L/C Application
must be received by such L/C Issuer and the Administrative Agent not later than
11:00 A.M. at least three Business Days prior to the proposed issuance date or date
of amendment, as the case may be. In the case of a request for an initial issuance
of a Letter of Credit, such Letter of Credit Application shall specify in form and
detail satisfactory to such L/C Issuer: (A) the proposed issuance date of the
requested Letter of Credit (which shall be a Business Day); (B) the amount thereof;
(C) the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such beneficiary
in case of any drawing thereunder; and (G) such other matters as such L/C Issuer may
require. In the case of a request for an amendment of any outstanding Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the applicable L/C Issuer (A) the Letter of Credit to be amended;
(B) the proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as such L/C Issuer may
require.




(ii) Promptly after receipt of any Letter of Credit Application, the L/C Issuer
receiving such Letter of Credit Application will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a copy
of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer
will provide the Administrative Agent with a copy thereof. Upon receipt by such L/C
Issuer of confirmation from the Administrative Agent that the requested issuance or
amendment is permitted in accordance with the terms hereof (such confirmation shall
be provided to such L/C Issuer no later than the next Business Day following the
Administrative Agent’s receipt of a copy of such Letter of Credit Application),
then, subject to the terms and conditions hereof, such L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the Borrower or enter
into the applicable amendment, as the case may be, in each case in accordance with
such L/C Issuer’s usual and customary business practices. Immediately upon the
issuance of each Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the issuing L/C Issuer a
risk participation in such Letter of Credit in an amount equal to the product of
such Lender’s Commitment Percentage times the amount of such Letter of
Credit.


 


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(iii) Solely with respect to standby Letters of Credit, if the Borrower so
requests in any applicable Letter of Credit Application, any L/C Issuer may, in its
sole and absolute discretion, agree to issue a Letter of Credit that has automatic
renewal
provisions (each, an “Auto-Renewal Letter of Credit”); provided
that any such Auto-Renewal Letter of Credit must permit such L/C Issuer to prevent
any such renewal at least once in each twelve-month period (commencing with the date
of issuance of such Letter of Credit) by giving prior notice to the beneficiary
thereof not later than a day (the “Nonrenewal Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is issued.
Unless otherwise directed by such L/C Issuer, the Borrower shall not be required to
make a specific request to such L/C Issuer for any such renewal. Once an
Auto-Renewal Letter of Credit has been issued, the Lenders shall be deemed to have
authorized (but may not require) such L/C Issuer to permit the renewal of such
Letter of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that such L/C Issuer shall not
permit any such renewal if (A) such L/C Issuer would have no obligation at such time
to issue such Letter of Credit in its renewed form under the terms hereof, or (B) it
has received notice (which may be by telephone or in writing) on or before the day
that is two Business Days before the Nonrenewal Notice Date (1) from the
Administrative Agent that the Required Lenders have elected not to permit such
renewal or (2) from the Administrative Agent, any Lender or the Borrower that one or
more of the applicable conditions specified in Section 4.2 is not then
satisfied. No L/C Issuer shall be under any obligation to permit the renewal of an
Auto-Renewal Letter of Credit if such L/C Issuer would have no obligation at such
time to issue such Letter of Credit under the terms of this Section 2.4.




(iv) Promptly after its delivery of any Letter of Credit or any amendment to a
Letter of Credit to an advising bank with respect thereto or to the beneficiary
thereof, each L/C Issuer will also deliver to the Borrower and the Administrative
Agent a true and complete copy of such Letter of Credit or amendment. On the
Business Day that is three Business Days prior to the last Business Day of each
March, June, September and December, each L/C Issuer will deliver to the
Administrative Agent a report of all outstanding Letters of Credit issued,
delivered, extended and/or amended by such L/C Issuer for the current calendar
quarter (or portion thereof), with an estimate of any activity that is expected to
occur during the remainder of such calendar quarter. The Administrative Agent shall
maintain a register for the recordation of the identity of the principal amount,
type and undrawn amount of each Letter of Credit outstanding hereunder, the names
and addresses of each beneficiary thereunder and the L/C Advances of the Lenders
pursuant to the terms hereof from time to time (the “L/C Register”).



(c) Drawings and Reimbursements; Funding of Participations.




(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of
a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the
Borrower and the Administrative Agent thereof. Not later than 11:00 A.M. on the
date of any payment by such L/C Issuer under a Letter of Credit (each such date, an
“Honor Date”), the Borrower shall reimburse such L/C Issuer through the
Administrative Agent in an amount equal to the amount of such drawing (it being
understood that such reimbursement may be accomplished pursuant to the application
of funds held in a cash collateral account in accordance with the documentation
governing such account). If the Borrower fails to so reimburse such L/C Issuer
through the Administrative Agent by such time, such L/C Issuer shall, prior to 11:00
A.M. on such date, so notify the Administrative Agent and the Administrative Agent
shall promptly notify each Lender of the Honor Date, the amount of the unreimbursed
drawing (the “Unreimbursed Amount”), and such Lender’s Commitment Percentage
thereof. In such


 


27









 







event, the Borrower shall be deemed to have requested a borrowing
of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the
minimum and multiples specified in Section 2.1(b)(ii) for the principal
amount of Base Rate Loans, but subject to the amount of the unutilized portion of
the Revolving Committed Amount and the conditions set forth in Section 4.2
(other than the delivery of a Notice of Borrowing). Any notice given by any L/C
Issuer or the Administrative Agent pursuant to this Section 2.4(c)(i) may be
given by telephone if immediately confirmed in writing; provided that the
lack of such an immediate confirmation shall not affect the conclusiveness or
binding effect of such notice.




(ii) Each Lender (including the Lender acting as L/C Issuer) shall upon any
notice pursuant to Section 2.4(c)(i) make funds available to the
Administrative Agent for the account of the issuing L/C Issuer in an amount equal to
its Commitment Percentage of the Unreimbursed Amount not later than 2:00 p.m. on the
Business Day specified in such notice by the Administrative Agent, whereupon,
subject to the provisions of Section 2.4(c)(iii), each Lender that so makes
funds available shall be deemed to have made a Base Rate Loan to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to such L/C
Issuer.




(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a
borrowing of Base Rate Loans because the conditions set forth in Section 4.2
cannot be satisfied or for any other reason, the Borrower shall be deemed to
have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and
payable on demand (together with interest) and shall bear interest at the default
rate as set forth in Section 3.1. In such event, the applicable L/C Issuer
shall promptly notify the Administrative Agent, who in turn will promptly notify
each Lender, and each Lender (including the Lender acting as L/C Issuer) that has
not made funds available to such L/C Issuer pursuant to Section 2.4(c)(ii)
shall, promptly upon any such notice, make funds available to the Administrative
Agent for the account of such L/C Issuer in an amount equal to its Commitment
Percentage of such L/C Borrowing, whereupon each Lender that so makes funds
available shall be deemed to have made payment in respect of its participation in
such L/C Borrowing and such payment shall constitute an L/C Advance from such Lender
in satisfaction of its participation obligation under this Section 2.4.
Likewise, to the extent a Lender has already made funds available pursuant to
Section 2.4(c)(ii) in respect of any Unreimbursed Amount and such
Unreimbursed Amount may not be refinanced by a Base Rate Loan because the conditions
set forth in Section 4.2 cannot be satisfied or for any other reason, the
funds made available by such Lender pursuant to Section 2.4(c)(ii) in
respect of such Unreimbursed Amount shall be deemed payment in respect of its
participation in the related L/C Borrowing and such payment shall constitute an L/C
Advance from such Lender in satisfaction of its participation obligation under this
Section 2.4. The Administrative Agent shall remit the funds so received to
the applicable L/C Issuer.




(iv) Until each Lender funds its Loan or L/C Advance pursuant to this
Section 2.4(c) to reimburse the issuing L/C Issuer for any amount drawn
under any Letter of Credit, interest in respect of such Lender’s Commitment
Percentage of such amount shall be solely for the account of such L/C Issuer.




 


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(v) Each Lender’s obligation to make Base Rate Loans or L/C Advances to
reimburse an L/C Issuer for amounts drawn under Letters of Credit, as contemplated
by this Section 2.4(c), shall be absolute and unconditional and shall not be
affected by any


circumstance, including, without limitation, (A) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against any L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default or Event of Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender’s obligation to make Base Rate
Loans pursuant to this Section 2.4(c) is subject to the conditions set forth
in Section 4.2 (other than delivery by the Borrower of a Notice of
Borrowing). Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse any L/C Issuer for the amount of any payment
made by such L/C Issuer under any Letter of Credit, together with interest as
provided herein.




(vi) If any Lender fails to make available to the Administrative Agent for the
account of any L/C Issuer any amount required to be paid by such Lender pursuant to
the foregoing provisions of this Section 2.4(c) by the time specified in
Section 2.4(c)(ii), such L/C Issuer shall be entitled (acting through the
Administrative Agent) to recover from such Lender, on demand, such amount with
interest thereon for the period from the date such payment is required to the date
on which such payment is immediately available to such L/C Issuer at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by the
L/C Issuer in accordance with banking industry rules on interbank compensation, plus
any administrative, processing or similar fees customarily charged by the L/C Issuer
in connection with the foregoing. If such Lender pays such amount (with interest
and fees as aforesaid), the amount so paid shall constitute such Lender’s Base Rate
Loan included in the relevant borrowing of Base Rate Loans or L/C Advance in respect
of the relevant L/C Borrowing, as the case may be. A certificate of such L/C Issuer
submitted (through the Administrative Agent) to any Lender with respect to any
amounts owing under this clause (vi) shall be conclusive absent manifest error.




(vii) With respect to any payment in respect of a Letter of Credit, each Lender
(including the Lender acting as L/C Issuer) agrees to act in accordance with the
ratable sharing of payments provisions set forth in Section 3.13.



(d) Repayment of Participations.




(i) At any time after any L/C Issuer has made a payment under any Letter of
Credit and has received from any Lender such Lender’s L/C Advance in respect of such
payment in accordance with Section 2.4(c), if the Administrative Agent
receives for the account of such L/C Issuer any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), or any payment of interest
thereon, the Administrative Agent will distribute to such Lender its Commitment
Percentage thereof in the same funds as those received by the Administrative Agent.




(ii) If any payment received by the Administrative Agent for the account of any
L/C Issuer pursuant to Section 2.4(c)(i) is required to be returned, each
Lender shall pay to the Administrative Agent for the account of such L/C Issuer its
Commitment Percentage thereof on demand of the Administrative Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect.


 


29









 





(e) Obligations Absolute. In the absence of gross negligence or willful misconduct,
and subject to Section 2.4(g) regarding the applicability of ISP and UCP (as defined
below), the obligation of
the Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of
Credit, and to repay each L/C Borrowing and each drawing under a Letter of Credit that is
refinanced by a Base Rate Loan, shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Credit Agreement under all circumstances, including
the following:




(i) any lack of validity or enforceability of such Letter of Credit, this
Credit Agreement, or any other agreement or instrument relating thereto;




(ii) the existence of any claim, counterclaim, set-off, defense or other right
that the Borrower may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), any L/C Issuer or any other Person, whether in connection
with this Credit Agreement, the transactions contemplated hereby or by such Letter
of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;




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




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




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




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



(f) Role of L/C Issuers. Each Lender and the Borrower agree that, in paying any
drawing under a Letter of Credit, the applicable L/C Issuers shall not have any responsibility to
obtain any document (other than any sight draft, certificates and documents expressly required by
the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. No L/C Issuer
nor any Affiliate thereof nor any of the respective correspondents, participants or assignees of
any L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable;
(ii) any action taken or omitted in the absence of gross negligence, willful misconduct or material
breach in bad faith of an express contractual obligation; or (iii) the due execution,
effectiveness, validity or enforceability of any document or instrument related to any Letter of
Credit or Letter of Credit Application.


 


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The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter of Credit (other than the
presentation of any sight draft, certificates and documents expressly required by the Letter of
Credit); provided, however, that this assumption is not intended to, and shall not,
preclude the Borrower’s pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No L/C Issuer nor any Affiliate thereof, nor any of
the respective correspondents, participants or assignees of any L/C Issuer, shall be liable or
responsible for any of the matters described in clauses (i) through (v) of Section 2.4(e);
provided, however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to the
Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or
exemplary, damages suffered by the Borrower which the Borrower proves were caused by such L/C
Issuer’s willful misconduct, gross negligence or material breach of an express contractual
obligation or such L/C Issuer’s willful failure to pay under any Letter of Credit after the
presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with
the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the
foregoing, any L/C Issuer may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary,
and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason.




(g) Applicability of ISP and UCP. Unless otherwise expressly agreed by the L/C Issuer
and the Borrower when a Letter of Credit is issued (including any such agreement applicable to an
Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit,
and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently
published by the International Chamber of Commerce at the time of issuance (the “UCP”) shall apply
to each commercial Letter of Credit.



(h) Conflict with Letter of Credit Application. In the event of any conflict between
the terms hereof and the terms of any Letter of Credit Application, the terms hereof shall control.



(i) Assignments. Each Lender may assign all or a portion of its rights and
obligations of participation in the Letters of Credit issued hereunder in accordance with the terms
and conditions for such assignments as set forth in Section 10.3(b). If at any time Bank
of America or such other L/C Issuer assigns all of its Commitment and Loans pursuant to Section
10.3(b), Bank of America or such L/C Issuer may, upon thirty (30) days’ notice to the Borrower
and the Lenders, resign as an L/C Issuer. In the event of any such resignation of an L/C Issuer,
the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder;
provided, however, that no failure by the Borrower to appoint any such successor
shall affect the resignation of any L/C Issuer. Each of Bank of America, SunTrust, Wells Fargo and
such other L/C Issuer shall retain all the rights and obligations of an L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C
Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to
make Base Rate Loans or fund participations in Letters of Credit pursuant to Section
2.4(c)).



(j) Responsibility of L/C Issuer for Causing the Letter of Credit Sublimit To Be
Exceeded. If any L/C Issuer (i) issues or amends a Letter of Credit without confirming with
the Administrative Agent that the requested issuance or amendment is permitted in accordance with
the terms hereof as is required pursuant to Section 2.4(b)(ii) (or in disregard of the
information conveyed by the Administrative Agent in response to such confirmation request) or (ii)
fails to provide the Administrative Agent with a proper reporting of any activity with respect to
Letters of Credit issued or requested of such L/C Issuer during the current calendar quarter as is
required pursuant to Section 2.4(b)(iv), and the result of such action or inaction is to
cause, at any time, (A) the outstanding L/C Obligations to exceed the Letter of
Credit Sublimit or (B) the sum of the aggregate principal amount of outstanding Revolving
Loans plus the aggregate principal amount of outstanding Swingline Loans plus the
L/C Obligations outstanding to exceed the Revolving Committed Amount, then such L/C Issuer shall be
solely responsible for collecting payment for unreimbursed draws thereunder from the Borrower, and
the Lenders shall not be required to participate in the L/C Obligations relating thereto.


 


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SECTION 3




OTHER PROVISIONS RELATING TO CREDIT FACILITIES



3.1 Default Rate.



Upon the occurrence, and during the continuance, of an Event of Default, the principal of and,
to the extent permitted by law, interest on the Loans and any other amounts owing hereunder or
under the other Credit Documents shall bear interest, payable on demand, at a per annum rate 2%
greater than the rate which would otherwise be applicable (or if no rate is applicable, whether in
respect of interest, fees or other amounts, then 2% greater than the Base Rate).



3.2 Extension and Conversion.



The Borrower shall have the option, on any Business Day, to deliver a Notice of
Extension/Conversion to (i) extend existing Loans into a single subsequent permissible Interest
Period, (ii) convert Loans into Loans of another interest rate type or (iii) extend existing Loans
into automatic rolling subsequent three-month Interest Periods; provided that, with respect to this
clause (iii) such Loans will be automatically extended on the last day of each three-month Interest
Period into the subsequent three-month Interest Period (as requested pursuant to the relevant
Notice of Extension/Conversion) until such time as the Borrower delivers a new Notice of
Extension/Conversion, which new Notice of Extension/Conversion shall be delivered prior to 11:00
A.M. on the fifth Business Day prior to the last day of the then current Interest Period;
provided, however, that (a) except as provided in Section 3.8, Eurodollar
Loans may be converted into Base Rate Loans only on the last day of the Interest Period applicable
thereto, (b) Eurodollar Loans may be extended, and Base Rate Loans may be converted into Eurodollar
Loans, only if no Default or Event of Default is in existence on the date of extension or
conversion, (c) Loans extended as, or converted into, Eurodollar Loans shall be subject to the
terms of the definition of “Interest Period” set forth in Section 1.1 and shall be
in such minimum amounts as provided in Section 2.1(b)(ii), (d) no more than fifteen (15)
Eurodollar Loans shall be outstanding hereunder at any time (it being understood that, for purposes
hereof, Eurodollar Loans with different Interest Periods shall be considered as separate Eurodollar
Loans, even if they begin on the same date, although borrowings, extensions and conversions may, in
accordance with the provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period), (e) any request for extension or
conversion of a Eurodollar Loan which shall fail to specify an Interest Period shall be deemed to
be a request for an Interest Period of one month and (f) Swingline Loans may not be extended or
converted pursuant to this Section 3.2. Each such extension or conversion shall be
effected by a Financial Officer of the Borrower giving a Notice of Extension/Conversion (or
telephone notice promptly confirmed in writing) to the Administrative Agent prior to 11:00 A.M. on
the third Business Day prior to, in the case of the extension of a Eurodollar Loan as, or
conversion of a Base Rate Loan into, a Eurodollar Loan, the date of the proposed extension or
conversion, specifying the date of the proposed extension or conversion, the Loans to be so
extended or converted, the types of Loans into which such Loans are to be converted and, if
appropriate, the applicable Interest Periods with respect thereto. Each request for extension or
conversion shall be irrevocable and shall constitute a representation and warranty by the Borrower
of the matters specified in subsections (b), (c), (d) and (e) of Section 4.2. In the event
the Borrower


fails to request extension or conversion of any Eurodollar Loan in accordance with this Section, or
any such conversion or extension is not permitted or required by this Section, then such Eurodollar
Loan shall be automatically converted into a Base Rate Loan at the end of the Interest Period
applicable thereto. The Administrative Agent shall give each Lender notice as promptly as
practicable of any such proposed extension or conversion affecting any Loan.





 


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3.3 Prepayments.



(a) Voluntary Prepayments. The Borrower shall have the right to prepay Loans in whole
or in part from time to time, subject to Section 3.11, but otherwise without premium or
penalty; provided, however, that (i) Base Rate Loans may only be prepaid on one
Business Day’s prior written notice to the Administrative Agent and specifying the applicable Loans
to be prepaid; (ii) Eurodollar Loans may only be prepaid on three Business Days’ prior written
notice to the Administrative Agent and specifying the applicable Loans to be prepaid; (iii) any
prepayment of Eurodollar Loans or Quoted Rate Swingline Loans will be subject to Section
3.11; and (iv) each such partial prepayment of Loans shall be (A) in the case of Revolving
Loans, in a minimum principal amount of $5,000,000 and multiples of $1,000,000 in excess thereof
(or, if less, the full remaining amount of the Revolving Loan being prepaid) and (B) in the case of
Swingline Loans, in a minimum principal amount of $250,000 and multiples of $100,000 in excess
thereof (or, if less, the full remaining amount of the then outstanding Swingline Loans). Subject
to the foregoing terms and to Sections 3.12 and 3.19 (to the extent applicable),
amounts prepaid under this Section 3.3(a) shall be applied as the Borrower may elect.



(b) Mandatory Prepayments.




(i) Commitment Limitation. If at any time, the sum of the aggregate
principal amount of outstanding Revolving Loans plus L/C Obligations
outstanding plus the aggregate principal amount of outstanding Swingline
Loans shall exceed the Revolving Committed Amount, the Borrower promises to
immediately prepay Loans and/or Cash Collateralize undrawn L/C Obligations in an
amount sufficient to eliminate such excess (such payments to be applied as set forth
in clause (iv) below).




(ii) Letter of Credit Sublimit. If at any time, the sum of the
aggregate principal amount of L/C Obligations shall exceed the Letter of Credit
Sublimit, the Borrower shall immediately repay L/C Borrowings and, within seven (7)
days, Cash Collateralize undrawn L/C Obligations in an amount sufficient to
eliminate such excess (such payments to be applied as set forth in clause (iv)
below). It is understood that if the Borrower is able to eliminate such excess
within the seven-day grace period through the reduction of L/C Obligations, then no
Cash Collateralization shall be required by the Borrower under this clause (iii).




(iii) Application of Mandatory Prepayments. All amounts required to be
paid pursuant to this Section 3.3(b) shall be applied as follows: (A) with
respect to all amounts paid pursuant to Section 3.3(b)(i), to (I) Swingline
Loans, (II) L/C Borrowings that have not been reimbursed through L/C Advances, (III)
L/C Advances and Revolving Loans and (IV) Cash Collateralize undrawn L/C Obligations
and (B) with respect to all amounts paid pursuant to Section 3.3(b)(ii), to
(I) L/C Borrowings that have not been reimbursed through L/C Advances, (II) L/C
Advances and (III) Cash Collateralize undrawn L/C Obligations. Within the
parameters of the applications set forth above, payments shall be applied first to
Base Rate Loans and then to Eurodollar Loans in direct order of Interest Period
maturities. All payments under this Section 3.3(b)shall be subject to
Section 3.11, but otherwise
without premium or penalty, and shall be accompanied by interest on the principal
amount paid through the date of payment.


 


33









 





(c) General. All prepayments made pursuant to this Section 3.3 shall (i) be
subject to Section 3.11 and (ii) unless the Borrower shall specify otherwise, be applied
first to Base Rate Loans, if any, and then to Eurodollar Loans in direct order of Interest Period
maturities. Except as otherwise set forth in subclause (b) above, amounts prepaid on the Revolving
Loans may be reborrowed in accordance with the provisions hereof.



3.4 Termination, Reduction and Increase of Revolving Committed Amount.



(a) Voluntary Reductions. The Borrower may from time to time permanently reduce or
terminate the Revolving Committed Amount in whole or in part (in minimum aggregate amounts of
$5,000,000 or in integral multiples of $1,000,000 in excess thereof (or, if less, the full
remaining amount of the then applicable Revolving Committed Amount)) upon five Business Days’ prior
written notice to the Administrative Agent; provided, however, no such termination
or reduction shall be made which would cause (i) the aggregate principal amount of outstanding
Revolving Loans plus L/C Obligations outstanding plus the aggregate principal
amount of outstanding Swingline Loans to exceed the Revolving Committed Amount (ii) the aggregate
principal amount of outstanding L/C Obligations not fully Cash Collateralized hereunder to exceed
the Letter of Credit Sublimit, or (iii) the aggregate principal amount of outstanding Swingline
Loans to exceed the Swingline Committed Amount, unless, concurrently with such termination or
reduction, the Revolving Loans are repaid to the extent necessary to eliminate such excess. The
Administrative Agent shall promptly notify each affected Lender of receipt by the Administrative
Agent of any notice from the Borrower pursuant to this Section 3.4(a).



(b) Increase in Revolving Committed Amount.




(i) Provided there exists no Default or Event of Default, upon notice from the
Borrower to the Administrative Agent (which shall promptly notify the Lenders), the
Borrower may from time to time, request an increase in the Revolving Committed
Amount in an aggregate amount for all such increases not to exceed $250,000,000;
provided, however, that the maximum amount of the Revolving
Committed Amount after giving effect to any such increase shall not exceed
$1,250,000,000. The aggregate amount of any individual increase hereunder shall be
in a minimum amount of $5,000,000 (and in integral multiples of $1,000,000 in excess
thereof). To achieve the full amount of a requested increase, the Borrower may
solicit increased commitments from existing Lenders and/or invite additional
Eligible Assignees to become Lenders; provided, however, that no
existing Lender shall be obligated and/or required to accept an increase in its
Commitment pursuant to this Section 3.4(b) unless it specifically consents
to such increase in writing. Any Lender or Eligible Assignee agreeing to increase
its Commitment or provide a new Commitment pursuant to this Section 3.4(b)
shall, in connection therewith, deliver to the Administrative Agent a New Commitment
Agreement substantially in the form of Schedule 3.4(b) hereto.




(ii) If the Revolving Committed Amount is increased in accordance with this
Section, the Administrative Agent and the Borrower shall determine the effective
date (the “Increase Effective Date”) and the final allocation of such
increase. The Administrative Agent shall promptly notify the Borrower and the
Lenders of the final allocation of such increase and the Increase Effective Date and
Schedule 2.1(a) hereto shall be deemed amended to reflect such increase and
final allocation.


 


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As a condition precedent to such increase, in addition to any
deliveries pursuant to subsection (i) above, the Borrower shall deliver to the Administrative Agent each of the following in
form and substance satisfactory to the Administrative Agent: (A) a certificate of
the Borrower dated as of the Increase Effective Date signed by a Financial Officer
of the Borrower (1) certifying and attaching the resolutions adopted by the Borrower
approving or consenting to such increase, and (2) certifying that, before and after
giving effect to such increase, (x) the representations and warranties contained in
Section 5 and the other Credit Documents are true and correct on and as of
the Increase Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they are true and
correct as of such earlier date, and except that for purposes of this Section
3.4(b), the representations and warranties contained in Section 5.1
shall be deemed to refer to the most recent statements furnished pursuant to
subsections (a) and (b), respectively, of Section 6.1, (y) no Default exists
and (z) the Borrower is in compliance with the financial covenants in Sections
6.10 and 6.11; (B) a statement of reaffirmation from the Borrower
pursuant to which the Borrower ratifies this Credit Agreement and the other Credit
Documents and acknowledges and reaffirms that, after giving effect to such increase,
it is bound by all terms of this Credit Agreement and the other Credit Documents;
(C) if the increase is being provided by an existing Lender, and such Lender is then
in possession of a Revolving Note, a revised Revolving Note in favor of such Lender
reflecting such Lender’s Commitment after giving effect to such increase; (D) if the
increase is being provided by a new Lender, a Revolving Note in favor of such Lender
if so requested by such Lender; and (E) payment of any applicable fee related to
such increase (including, without limitation, any applicable arrangement, upfront
and/or administrative fee). The Borrower shall prepay any Loans outstanding on the
Increase Effective Date (and pay any additional amounts required pursuant to
Section 3.11) to the extent necessary to keep the outstanding Loans ratable
with any revised Commitment Percentages arising from any nonratable increase in the
Commitments under this Section.




(iii) This Section shall supersede any provisions in Sections 3.12,
3.14 or 10.6 to the contrary.



(c) Termination Date. The Revolving Commitments of the Lenders, the commitment of any
L/C Issuer to issue Letters of Credit under the Letter of Credit Sublimit and the Swingline
Commitment of the Swingline Lender shall automatically terminate on the Termination Date.



(d) Extension. The Borrower may, on or after the second anniversary of the Closing
Date, by notice to the Administrative Agent, make a single written request of the Lenders to extend
the Termination Date hereunder for an additional period of one (1) year. The Administrative Agent
will give prompt notice to each of the Lenders of its receipt of any such request for extension of
such Termination Date. Each Lender, in its sole discretion, shall make a determination within 30
days of such notice as to whether or not it will agree to extend such Termination Date as
requested; provided, however, that failure by any Lender to make a timely response
to the Borrower’s request for extension of such Termination Date shall be deemed to constitute a
refusal by the Lender to extend such Termination Date. If, in response to a request for an
extension of such Termination Date, one or more Lenders shall fail to agree to the requested
extension (the “Disapproving Lenders”), then the Borrower may elect to either (A) continue
the revolving credit facility hereunder at the same level of Revolving Commitments by replacing
each of the Disapproving Lenders in accordance with Section 3.17, or (B) provided that the
requested extension is approved by Lenders holding more than 50% of the Revolving Commitments
hereunder (including for purposes hereof any Replacement Lenders which may replace a Disapproving
Lender, the “Approving Lenders”), extend and continue the revolving credit facility at a
lower aggregate amount equal to the Revolving Commitments held by the Approving Lenders. In any
such case, (i) such Termination Date relating to the Revolving Commitments


 


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held by the Disapproving
Lenders (other than those Disapproving Lenders replaced in accordance with Section 3.17) shall remain as then in effect with
repayment of obligations held by such Disapproving Lenders being due on such date and termination
of their respective Revolving Commitments on such date, and (ii) such Termination Date relating to
the Revolving Commitments held by the Approving Lenders including any applicable Replacement
Lenders shall be extended by an additional period of one (1) year. With respect to the L/C
Obligations of any Disapproving Lenders whose Revolving Commitments are terminated on the
applicable Termination Date relating to the Revolving Commitments held by such Disapproving
Lenders, such L/C Obligations shall automatically be allocated among the Approving Lenders
including any applicable Replacement Lenders, whereupon each such Disapproving Lender shall be
released from all of its obligations to the Borrower, the Administrative Agent and/or such L/C
Issuer in respect of Letters of Credit under this Credit Agreement. The provisions of this
Section 3.4(d) shall supersede any provisions of Section 3.12 or 3.14 to
the contrary.




(e) Change of Control.




(i) As set forth in Sections 2.1(a), 2.3(a) and 2.4(a)
above, the Borrower may not request any Loans or Letters of Credit hereunder while a
Change of Control Standstill Period shall be in effect pursuant to this Section
3.4(e). Subject to the procedures set forth below in clause (iii) of this
Section 3.4(e), upon the occurrence of a Change of Control and the
expiration of the 20-day notice period described below, each Lender shall have the
right to terminate its Commitment hereunder and require that the Borrower prepay
(and the Borrower agrees to so prepay) in full such Lender’s outstanding Loans and
Cash Collateralize such Lender’s L/C Obligations (such amount the “Change of
Control Prepayment Amount”), plus accrued and unpaid fees and interest, if any,
to the date of prepayment and all other obligations due to such Lender under this
Credit Agreement and the other Credit Documents. The portion of any such prepayment
attributable to (and equal to) such Lender’s L/C Obligations shall be retained by
the applicable L/C Issuer(s) and applied to Cash Collateralize such Lender’s L/C
Obligations, whereupon such Lender shall be released from all of its obligations to
the Borrower, the Administrative Agent and/or such L/C Issuer in respect of Letters
of Credit under this Credit Agreement.




(ii) Upon the occurrence of any Change of Control, the Administrative Agent
shall mail a notice (the “Change of Control Notice”) simultaneously to all
Lenders providing each Lender with notice of its rights under this Section
3.4(e) and a period of twenty (20) calendar days to evaluate the Change of
Control and make a determination as to whether such Lender will terminate its
Commitment and accept payment of the Change of Control Prepayment Amount, or whether
such Lender will accept such Change of Control and continue as a Lender hereunder.
The period beginning on the effective date of such Change of Control and continuing
through the expiration of such twenty (20) day notice period shall be referred to
herein as a “Change of Control Standstill Period”).




(iii) Lenders electing to have their Loans prepaid pursuant to this Section
3.4(e) shall so notify the Administrative Agent as directed in the Change of
Control Notice; provided, however, that failure by any Lender to
make a timely response shall be deemed to constitute an election by such Lender to
terminate its Commitment and accept prepayment of its Loans. Upon the expiration
date of the Change of Control Standstill Period, (A) all Lenders electing to
terminate their Commitments (the “Terminating Lenders”) shall surrender
their Notes to the Administrative Agent at the address specified in Section
10.1, (B) all Notes held by Terminating Lenders shall be cancelled by the
Borrower and the Borrower shall pay the applicable Change of Control Prepayment
Amounts to the Administrative Agent, for the account of the Terminating


 


36









 







Lenders, and all other Obligations due to the Terminating Lenders under this Credit
Agreement and the other Credit Documents, (C) the Commitments of the Terminating
Lenders hereunder shall be terminated and the Revolving Committed Amount shall be
automatically reduced by an amount equal to the aggregate amount of the Commitments
so terminated, and (D) and the Commitments of those Lenders not electing to
terminate their Commitments shall automatically continue.



(f) General. The Borrower shall pay to the Administrative Agent for the account of
the Lenders in accordance with the terms of Section 3.5(a), on the date of each termination
or reduction of the Revolving Committed Amount, the Facility Fee accrued through the date of such
termination or reduction on the amount of the Revolving Committed Amount so terminated or reduced.



3.5 Fees.



(a) Facility Fee. In consideration of the Revolving Commitments of the Lenders
hereunder, the Borrower agrees to pay to the Administrative Agent for the account of each Lender a
fee (the “Facility Fee”) on the Revolving Committed Amount computed at a per annum rate for
each day during the applicable Facility Fee Calculation Period (hereinafter defined) equal to the
Applicable Margin in effect from time to time. The Facility Fee shall commence to accrue on the
Closing Date and shall be due and payable in arrears on the last Business Day of each March, June,
September and December (and any date that the Revolving Committed Amount is reduced or increased as
provided in Section 3.4 and the Termination Date) for the immediately preceding quarter (or
portion thereof) (each such quarter or portion thereof for which the Facility Fee is payable
hereunder being herein referred to as a “Facility Fee Calculation Period”), beginning with
the first of such dates to occur after the Closing Date.



(b) Administrative Fees. The Borrower agrees to pay to the Administrative Agent, for
its own account, the fees referred to in the Administrative Agent’s Fee Letter (collectively, the
“Administrative Agent’s Fees”).



(c) Letter of Credit Fees.




(i) Letter of Credit Fee. In consideration of the issuance of Letters
of Credit hereunder, the Borrower promises to pay to the Administrative Agent for
the account of each Lender a fee (the “Letter of Credit Fee”) on such
Lender’s Commitment Percentage of the actual daily maximum amount available to be
drawn under each Letter of Credit computed at a per annum rate for each day from the
date of issuance to the date of expiration equal to the Applicable Margin for
Eurodollar Loans; provided, however, any Letter of Credit Fees otherwise payable for
the account of a Defaulting Lender with respect to any Letter of Credit as to which
such Defaulting Lender has not provided Cash Collateral satisfactory to the
applicable L/C Issuer pursuant to Section 2.4 (and, to the extent
applicable,Section 3.18) shall be payable, to the maximum extent permitted
by applicable law, to the other Lenders in accordance with the upward adjustments in
their respective Commitment Percentages allocable to such Letter of Credit pursuant
to Section 3.19(a)(iv), with the balance of such fee, if any, payable to the
applicable L/C Issuer for its own account. The Letter of Credit Fee will be payable
quarterly in arrears on the last Business Day of each March, June, September and
December for the immediately preceding quarter (or a portion thereof).


 


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(ii) L/C Issuer Fees. In addition to the Letter of Credit Fee payable
pursuant to clause (i) above, the Borrower promises to pay to each L/C Issuer for
its own account without sharing by the other Lenders (A) a letter of credit fronting
fee (i) with respect to
each commercial Letter of Credit, at the rate negotiated by the applicable L/C
Issuer and the Borrower, computed on the amount of such Letter of Credit, and
payable upon the issuance thereof, (ii) with respect to any amendment of a
commercial Letter of Credit increasing the amount of such Letter of Credit, at a
rate separately agreed between the Borrower and the applicable L/C Issuer, computed
on the amount of such increase, and payable upon the effectiveness of such
amendment, and (iii) with respect to each standby Letter of Credit, at the rate per
annum negotiated by the applicable L/C Issuer and the Borrower, on the average daily
maximum amount available to be drawn under each Letter of Credit issued by such L/C
Issuer from the date of issuance to the date of expiration and (B) such other
customary charges from time to time of such L/C Issuer with respect to the issuance,
amendment, transfer, administration, cancellation and conversion of, and drawings
under, and other processing fees, and other standard costs and charges, of such L/C
Issuer relating to such Letters of Credit as from time to time in effect, due and
payable on demand therefor by such L/C Issuer (collectively, the “L/C Issuer
Fees”).



3.6 Capital Adequacy.



If any Lender determines the amount of capital required or expected to be maintained by such
Lender, any Lending Installation of such Lender or any corporation controlling such Lender is
increased as a result of a Change in Law, then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender determines is attributable to
this Credit Agreement, its Loans or its obligation to make Loans hereunder (after taking into
account such Lender’s policies as to capital adequacy).



3.7 Inability To Determine Interest Rate.



If prior to the first day of any Interest Period, the Administrative Agent shall have
reasonably determined that, by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such Interest Period, the
Administrative Agent shall give telecopy or telephonic notice thereof to the Borrower and the
Lenders as soon as practicable thereafter. If such notice is given (a) any Eurodollar Loans
requested to be made on the first day of such Interest Period shall be made as Base Rate Loans
(with the Base Rate determined other than by reference to the Eurodollar Rate) and (b) any Loans
that were to have been converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrower have the right to convert Base Rate Loans to Eurodollar Loans.



3.8 Illegality.



Notwithstanding any other provision herein, if the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof occurring after the Closing Date
shall make it unlawful for any Lender to make or maintain Eurodollar Loans as contemplated by this
Credit Agreement, or any Governmental Authority has imposed material restrictions on the authority
of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market,
(a) such Lender shall promptly give written notice of such circumstances to the Borrower and the
Administrative Agent (which notice shall be withdrawn whenever such circumstances no longer exist),
(b) the commitment of such Lender hereunder to make Eurodollar Loans, continue Eurodollar Loans as
such and convert a Base Rate Loan to Eurodollar Loans shall forthwith be canceled and, until such
time as it shall no longer be unlawful for such Lender to make or maintain Eurodollar Loans, such
Lender shall then have a commitment only to make a Base Rate


 


38









 





Loan when a Eurodollar Loan is
requested and (c) such Lender’s Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans on the respective last days of the then current
Interest Periods with respect to such Loans or within such earlier period as required by law. If
any such conversion of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such Lender such amounts,
if any, as may be required pursuant to Section 3.11.




3.9 Yield Protection.



If any Change in Law shall occur that,



(a) subjects any Lender or any applicable Lending Installation to any tax, duty, charge or
withholding on or from payments due from the Borrower (excluding federal taxation of the overall
net income of any Lender or applicable Lending Installation), or changes the basis of taxation of
payments to any Lender in respect of its Loans or other amounts due it hereunder;



(b) imposes or increases or deems applicable any reserve, assessment, insurance charge,
special deposit or similar requirements against assets of, deposits with or for the account of, or
credit extended by, any Lender or any applicable Lending Installation (other than reserves and
assessments taken into account in determining the Base Rate);



and the result of which is to increase the cost to any Lender of making, funding or maintaining
loans or reduces any amount receivable by any Lender or any applicable Lending Installation in
connection with loans, or requires any Lender or any applicable Lending Installation to make any
payment calculated by reference to the amount of loans held or interest received by it, by an
amount deemed material by such Lender;




then, within 15 days of demand by such Lender, the Borrower shall pay such Lender that portion of
such increased expense incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans and its Commitments. This covenant shall
survive the termination of this Credit Agreement and the payment of the Loans and all other amounts
payable hereunder.




3.10 Withholding Tax Exemption.



Each Lender that is not incorporated under the laws of the United States of America or a state
thereof shall:



(a) (i) on or before the date of any payment by the Borrower under this Credit Agreement or
Notes to such Lender, deliver to the Borrower and the Administrative Agent (A) two (2) duly
completed copies of United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, certifying that it is entitled to receive payments under this
Credit Agreement and any Notes without deduction or withholding of any United States federal income
taxes and (B) an Internal Revenue Service Form W-8 or W-9, or successor applicable form, as the
case may be, certifying that it is entitled to an exemption from United States backup withholding
tax;




(ii) deliver to the Borrower and the Administrative Agent two (2) further
copies of any such form or certification on or before the date that any such form or
certification expires or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously delivered by it to the
Borrower; and


(iii) obtain such extensions of time for filing and complete such forms or
certifications as may reasonably be requested by the Borrower or the Administrative
Agent; or




 


39









 







(b) in the case of any such Lender that is not a “bank” within the meaning of Section
881(c)(3)(A) of the Code, (i) represent to the Borrower (for the benefit of the Borrower and the
Administrative Agent) that it is not a bank within the meaning of Section 881(c)(3)(A) of the Code,
(ii) agree to furnish to the Borrower on or before the date of any payment by the Borrower, with a
copy to the Administrative Agent two (2) accurate and complete original signed copies of Internal
Revenue Service Form W-8, or successor applicable form certifying to such Lender’s legal
entitlement at the date of such certificate to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to payments to be made under this Credit
Agreement and any Notes (and to deliver to the Borrower and the Administrative Agent two (2)
further copies of such form on or before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recently provided form and, if necessary,
obtain any extensions of time reasonably requested by the Borrower or the Administrative Agent for
filing and completing such forms), and (iii) agree, to the extent legally entitled to do so, upon
reasonable request by the Borrower, to provide to the Borrower (for the benefit of the Borrower and
the Administrative Agent) such other forms as may be reasonably required in order to establish the
legal entitlement of such Lender to an exemption from withholding with respect to payments under
this Credit Agreement and any Notes;



unless in any such case any change in treaty, law or regulation has occurred after the date such
Person becomes a Lender hereunder which renders all such forms inapplicable or which would prevent
such Lender from duly completing and delivering any such form with respect to it and such Lender so
advises the Borrower and the Administrative Agent in either case. Each Person that shall become a
Lender or a participant of a Lender pursuant to subsection 10.3 shall, upon the effectiveness of
the related transfer, be required to provide all of the forms, certifications and statements
required pursuant to this subsection, provided that in the case of a participant of a
Lender the obligations of such participant of a Lender pursuant to this Section 3.10 shall
be determined as if the participant of a Lender were a Lender except that such participant of a
Lender shall furnish all such required forms, certifications and statements to the Lender from
which the related participation shall have been purchased.




3.11 Indemnity.



The Borrower promises to indemnify each Lender and to hold each Lender harmless from any loss
or expense which such Lender may sustain or incur (other than through such Lender’s gross
negligence, willful misconduct or material breach in bad faith of its express contractual
obligation) as a consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans or Quoted Rate Swingline Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this Credit Agreement, (b)
default by the Borrower in making any prepayment of a Eurodollar Loan or a Quoted Rate Swingline
Loan after the Borrower has given a notice thereof in accordance with the provisions of this Credit
Agreement or (c) the making of a prepayment of Eurodollar Loans or Quoted Rate Swingline Loans on a
day which is not the last day of an Interest Period with respect thereto. With respect to
Eurodollar Loans, such indemnification may include an amount equal to the excess, if any, of (i)
the amount of interest which would have accrued on the amount so prepaid, or not so borrowed,
converted or continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have commenced on the date
of such failure) in each case at the applicable rate of interest for such Eurodollar Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the
amount of interest (as reasonably determined by such Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period with leading banks
in the interbank Eurodollar market. The covenants of the Borrower set
forth in this Section 3.11 shall survive the termination of this Credit Agreement and the
payment of the Loans and all other amounts payable hereunder.


 


40









 





3.12 Pro Rata Treatment.



Except to the extent otherwise provided herein (including, without limitation, in Sections
3.4(d) and 3.4(e)), each Loan, each payment or prepayment of principal of any Loan,
each payment of interest on the Loans, each payment of Facility Fees, each reduction of the
Revolving Committed Amount and each conversion or extension of any Loan, shall be allocated pro
rata among the Lenders in accordance with the respective Commitment Percentages.



3.13 Payments Generally; Administrative Agent’s Clawback.



(a) General. All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly
provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent,
for the account of the respective Lenders to which such payment is owed, at the Administrative
Agent’s Office in Dollars and in immediately available funds not later than 4:00 P.M. on the date
specified herein. The Administrative Agent will promptly distribute to each Lender its Commitment
Percentage (or other applicable share as provided herein) of such payment in like funds as received
by wire transfer to such Lender’s Lending Office. All payments received by the Administrative
Agent after 4:00 P.M. shall be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower
shall come due on a day other than a Business Day, payment shall be made on the next following
Business Day, and such extension of time shall be reflected in computing interest or fees, as the
case may be.



(b) (i) Funding by Lenders; Presumption by Administrative Agent. Unless the
Administrative Agent shall have received notice from a Lender prior to the proposed date of any
borrowing of Eurodollar Loans (or, in the case of any borrowing of Base Rate Loans, prior to 12:00
noon on the date of such borrowing) that such Lender will not make available to the Administrative
Agent such Lender’s share of such borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with Sections 2.1(b) and
3.2 (or, in the case of a borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by Sections 2.1(b) and
3.2) 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 in
immediately available funds with interest thereon, for each day from and including the date such
amount is made available to the Borrower to but excluding the date of payment to the Administrative
Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds
Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation and (B) in the case of a payment to be made by the Borrower, the interest
rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the
Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for such period. If such
Lender pays its share of the applicable borrowing to the Administrative Agent, then the amount so
paid shall constitute such Lender’s Revolving Loan included in such borrowing. Any payment by the
Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall
have failed to make such payment to the Administrative Agent.


 


41









 





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



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



(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing
provisions of this Section 3, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Loan set forth in Section 4
are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall
return such funds (in like funds as received from such Lender) to such Lender, without interest.



(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Revolving Loans, to fund participations in Letters of Credit and Swingline Loans and to make
payments pursuant to Section 9.7are several and not joint. The failure of any Lender to
make any Revolving Loan, to fund any such participation or to make any payment under Section
9.7 on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Revolving Loan, to purchase its participation or to make its payment under
Section 9.7.



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



3.14 Sharing of Payments.



The Lenders agree among themselves that, in the event that any Lender shall obtain payment in
respect of any Loan or any other obligation owing to such Lender under this Credit Agreement
through the exercise of a right of setoff, banker’s lien or counterclaim, or pursuant to a secured
claim under Section 506 of Title 11 of the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in excess of its pro rata
share of such payment as provided for in this Credit Agreement (excluding any amounts applied by
the Swingline Lender to outstanding Swingline Loans and excluding any amounts received by the L/C
Issuer and/or Swingline Lender to secure obligations of a Defaulting Lender to fund risk
participations hereunder), such Lender shall promptly purchase from the other Lenders a
participation in such Loans and other obligations in such amounts, and make such other adjustments
from time to time, as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit Agreement. The
Lenders further agree among themselves that if payment to a Lender obtained by such Lender through
the exercise of a right of setoff, banker’s lien, counterclaim or other event as aforesaid shall be



 


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rescinded
or must otherwise be restored, each Lender which shall have shared the benefit of such payment shall, by repurchase of a
participation theretofore sold, return its share of that benefit (together with its share of any
accrued interest payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. The Borrower agrees that any Lender so purchasing such a
participation may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker’s lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Loan or other obligation in the amount of such participation.
Except as otherwise expressly provided in this Credit Agreement, if any Lender or the
Administrative Agent shall fail to remit to the Administrative Agent or any other Lender an amount
payable by such Lender or the Administrative Agent to the Administrative Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such payments shall be made
together with interest thereon for each date from the date such amount is due until the date such
amount is paid to the Administrative Agent or such other Lender at a rate per annum equal to the
Federal Funds Rate. If under any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a setoff to which this Section 3.14applies,
such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders under this Section 3.14 to share in
the benefits of any recovery on such secured claim. The provisions of this Section 3.14
shall not be construed to apply to (x) any payment made by or on behalf of the Borrower pursuant to
and in accordance with the express terms of this Credit Agreement (including the application of
funds arising from the existence of a Defaulting Lender), (y) the application of Cash Collateral
provided for in Section 3.18 or (z) any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or subparticipations in L/C
Obligations or Swingline Loans to any assignee or participant, other than an assignment to the
Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).




3.15 Payments, Computations, Etc.



(a) Except as otherwise specifically provided herein, all payments hereunder shall be made to
the Administrative Agent in dollars in immediately available funds, without offset, deduction,
counterclaim or withholding of any kind, at the Administrative Agent’s office specified in
Schedule 10.1 not later than 4:00 P.M. on the date when due. Payments received after such
time shall be deemed to have been received on the next succeeding Business Day. The Administrative
Agent may (but shall not be obligated to) debit the amount of any such payment which is not made by
such time to any ordinary deposit account of the Borrower maintained with the Administrative Agent
(with notice to the Borrower). The Borrower shall, at the time it makes any payment under this
Credit Agreement, specify to the Administrative Agent the Loans, Fees, interest or other amounts
payable by the Borrower hereunder to which such payment is to be applied (and in the event that it
fails so to specify, or if such application would be inconsistent with the terms hereof, the
Administrative Agent shall distribute such payment to the Lenders in such manner as the
Administrative Agent may determine to be appropriate in respect of obligations owing by the
Borrower hereunder, subject to the terms of Section 3.12(a)). The Administrative Agent
will distribute such payments to such Lenders, if any such payment is received prior to 12:00 Noon
on a Business Day in like funds as received prior to the end of such Business Day and otherwise the
Administrative Agent will distribute such payment to such Lenders on the next succeeding Business
Day. Whenever any payment hereunder shall be stated to be due on a day which is not a Business
Day, the due date thereof shall be extended to the next succeeding Business Day (subject to accrual
of interest and Fees for the period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the next following calendar month,
then such payment shall instead be made on the next preceding Business Day. Except as expressly
provided otherwise herein, all computations of interest and fees shall be made on the basis of
actual number of days elapsed over a year of 360 days, except with respect to computation of
interest on Base Rate Loans which shall be calculated based on a year of 365 or 366 days, as
appropriate. Interest shall accrue from and include the date of borrowing, but exclude the date of
payment.


 


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(b) Allocation of Payments. Notwithstanding any other provisions of this Credit
Agreement to the contrary, after the exercise of remedies provided for in Section 8.2 (or
after the Loans have automatically become due and payable as set forth in the last paragraph of
Section 8.2), all amounts collected or received by the Administrative Agent or any Lender
on account of the Loans, L/C Obligations, Fees or any other amounts outstanding under any of the
Credit Documents shall be paid over or delivered as follows:




FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys’ fees) of the Administrative
Agent in connection with enforcing the rights of the Lenders under the Credit
Documents;




SECOND, to payment of any fees owed to the Administrative Agent, in its
capacity as such;




THIRD, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation, reasonable attorneys’ fees) of each of the Lenders in
connection with enforcing its rights under the Credit Documents or otherwise with
respect to amounts owing to such Lender;




FOURTH, to the payment of accrued fees and interest;




FIFTH, to the payment of the outstanding principal amount of the Loans
(including, without limitation, the payment or Cash Collateralization of the
outstanding L/C Obligations);




SIXTH, to all other amounts and other obligations which shall have become due
and payable under the Credit Documents or otherwise and not repaid pursuant to
clauses “FIRST” through “FIFTH” above; and




SEVENTH, to the payment of the surplus, if any, to whomever may be lawfully
entitled to receive such surplus.




In carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next succeeding
category; (ii) each of the Lenders shall receive an amount equal to its pro rata
share (based on the proportion that the then outstanding Loans held by such Lender
bears to the aggregate then outstanding Loans) of amounts available to be applied
pursuant to clauses “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the extent
that any amounts available for distribution pursuant to clause “FIFTH” above are
attributable to the issued but undrawn amount of outstanding Letters of Credit, such
amounts shall be Cash Collateralized by the Administrative Agent and applied (A)
first, to reimburse the applicable L/C Issuers from time to time for any drawings
under such Letters of Credit and (B) then, following the expiration of all Letters
of Credit, to all other obligations of the types described in clauses “THIRD” and
“SIXTH” above in the manner provided in this Section 3.15(b).



3.16 Evidence of Debt.



(a) Each Lender shall maintain an account or accounts evidencing each Loan made by such Lender
to the Borrower from time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each Lender will make reasonable
efforts to maintain the accuracy of its account or accounts and to promptly update its account or
accounts from time to time, as necessary.


 


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(b) The Administrative Agent shall maintain the Register pursuant to Section 10.3(c)
hereof, and a subaccount for each Lender, in which Register and subaccounts (taken together) shall
be recorded (i) the amount, type and Interest Period of each such Loan hereunder, (ii) the amount
of any principal or interest due and payable or to become due and payable to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder from or for the
account of the Borrower and each Lender’s share thereof. The Administrative Agent will make
reasonable efforts to maintain the accuracy of the subaccounts referred to in the preceding
sentence and to promptly update such subaccounts from time to time, as necessary.



(c) The entries made in the accounts, Register and subaccounts maintained pursuant to
subsection (b) of this Section 3.16(and, if consistent with the entries of the
Administrative Agent, subsection (a)) shall be conclusive, absent convincing evidence to the
contrary, evidence of the existence and amounts of the obligations of the Borrower therein
recorded; provided, however, that the failure of any Lender or the Administrative
Agent to maintain any such account, such Register or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrower to repay the Loans made by
such Lender in accordance with the terms hereof.



3.17 Replacement of Lenders.



In the event any Lender delivers to the Borrower any notice in accordance with Sections
3.4(d) (with respect to such Lender being a Disapproving Lender), 3.6, 3.8,
3.9 or 3.10 or if any Lender is a Defaulting Lender, then the Borrower shall have
the right, if no Default or Event of Default then exists, to replace such Lender (the “Replaced
Lender”) with one or more additional banks or financial institutions (collectively, the
“Replacement Lender”), provided that (A) at the time of any replacement pursuant to
this Section 3.17, the Replacement Lender shall enter into one or more Assignment and
Assumptions pursuant to, and in accordance with the terms of, Section 10.3(b) (and with all
fees payable pursuant to said Section 10.3(b) to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the rights and obligations of the
Replaced Lender hereunder and, in connection therewith, shall pay to the Replaced Lender in respect
thereof an amount equal to the sum of (a) the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Lender, and (b) all accrued, but theretofore unpaid, fees owing
to the Replaced Lender pursuant to Section 3.5(a), and (B) all obligations of the Borrower
owing to the Replaced Lender (including all obligations, if any, owing pursuant to Section
3.6, 3.8 or 3.9, but excluding those obligations specifically described in
clause (A) above in respect of which the assignment purchase price has been, or is concurrently
being paid) shall be paid in full to such Replaced Lender concurrently with such replacement.



3.18 Cash Collateral.



(a) Certain Credit Support Events. Upon the request of the Administrative Agent
or an L/C Issuer (i) if such L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing or (ii) if, as of the Letter of
Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Borrower shall,
in each case, immediately Cash Collateralize the then outstanding amount of all L/C Obligations.
At any time that there shall exist a Defaulting Lender, within one (1) Business Day after the
request of the Administrative Agent, an L/C Issuer or the Swingline Lender, the Borrower shall
deliver to the Administrative Agent Cash Collateral in an amount sufficient to cover all Fronting
Exposure (after giving effect to Section 3.19(a)(iv) and any Cash Collateral provided by
the Defaulting Lender).


 


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(b) Grant of Security Interest. All Cash Collateral (other than credit support not
constituting funds subject to deposit) shall be maintained in blocked, non-interest bearing deposit
accounts at the
Administrative Agent. The Borrower, and to the extent provided by any Lender, such Lender,
hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the
Administrative Agent, the L/C Issuers and the Lenders (including the Swingline Lender) and agrees
to maintain, a first priority security interest in all such Cash Collateral and in all proceeds of
the foregoing, all as security for the obligations to which such Cash Collateral may be applied
pursuant to Section 3.18(c). If at any time the Administrative Agent determines that Cash
Collateral is subject to any right or claim of any Person other than the Administrative Agent as
herein provided, or that the total amount of such Cash Collateral is less than the applicable
Fronting Exposure and other obligations secured thereby, the Borrower or the relevant Defaulting
Lender will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative
Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency.



(c) Application. Notwithstanding anything to the contrary contained in this Credit
Agreement, Cash Collateral provided under any of this Section 3.18 or Sections 2.3,
2.4, 3.3, 3.19 or 8.2 in respect of Letters of Credit or Swingline
Loans shall be held and applied in satisfaction of the specific L/C Obligations, Swingline Loans,
obligations to fund participations therein (including, as to Cash Collateral provided by a
Defaulting Lender, any interest accrued on such obligation) and other obligations for which the
Cash Collateral was so provided, prior to any other application of such property as may be provided
herein.



(d) Release. Cash Collateral (or the appropriate portion thereof) provided to reduce
Fronting Exposure or other obligations shall be released promptly following (i) the elimination of
the applicable Fronting Exposure or other obligations giving rise thereto (including by the
termination of Defaulting Lender status of the applicable Lender) or (ii) the Administrative
Agent’s good faith determination that there exists excess Cash Collateral; provided,
however, (x) that Cash Collateral furnished by or on behalf of the Borrower shall not be
released during the continuance of a Default or Event of Default (and following application as
provided in this Section 3.18 may be otherwise applied in accordance with Section
3.15) and (y) the Person providing Cash Collateral and the applicable L/C Issuer or the
Swingline Lender, as applicable, may agree that Cash Collateral shall not be released but instead
held to support future anticipated Fronting Exposure or other obligations.



3.19 Defaulting Lenders.



(a) Adjustments. Notwithstanding anything to the contrary contained in this
Credit Agreement, if any Lender becomes a Defaulting Lender, then, until such time as that Lender
is no longer a Defaulting Lender, to the extent permitted by applicable law:




(i) Waivers and Amendment. The Defaulting Lender’s right to approve or
disapprove any amendment, waiver or consent with respect to this Credit Agreement shall be
restricted as set forth in Section 10.6.




(ii) Reallocation of Payments. Any payment of principal, interest, fees or
other amounts received by the Administrative Agent for the account of that Defaulting Lender
(whether voluntary or mandatory, at maturity, pursuant to Section 8 or otherwise,
and including any amounts made available to the Administrative Agent by that Defaulting
Lender pursuant to Section 10.2), shall be applied at such time or times as may be
determined by the Administrative Agent as follows: first, to the payment of any
amounts owing by that Defaulting Lender to the Administrative Agent hereunder;
second, to the payment on a pro rata basis of any amounts owing by
that Defaulting Lender to any L/C Issuer or the Swingline Lender hereunder; third,
if so determined by the Administrative Agent or requested by an L/C Issuer or the Swingline
Lender, to be held as Cash Collateral for future funding obligations of that Defaulting
Lender of any participation in any Swingline Loan or Letter of Credit; fourth, as
the


 


46









 







Borrower
may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect
of which that Defaulting Lender has failed to fund its portion thereof as required by this
Credit Agreement, as determined by the Administrative Agent; fifth, if so determined
by the Administrative Agent and the Borrower, to be held in a non-interest bearing deposit
account and released in order to satisfy obligations of that Defaulting Lender to fund Loans
under this Credit Agreement; sixth, to the payment of any amounts owing to the
Lenders, an L/C Issuer or the Swingline Lender as a result of any judgment of a court of
competent jurisdiction obtained by any Lender, an L/C Issuer or the Swingline Lender against
that Defaulting Lender as a result of that Defaulting Lender’s breach of its obligations
under this Credit Agreement; seventh, so long as no Default or Event of Default
exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a
court of competent jurisdiction obtained by the Borrower against that Defaulting Lender as a
result of that Defaulting Lender’s breach of its obligations under this Credit Agreement;
and eighth, to that Defaulting Lender or as otherwise directed by a court of
competent jurisdiction; provided, that, if (x) such payment is a payment of
the principal amount of any Loans or L/C Borrowings in respect of which that Defaulting
Lender has not fully funded its appropriate share and (y) such Loans or L/C Borrowings were
made at a time when the conditions set forth in Section 4.2 were satisfied or
waived, such payment shall be applied solely to the pay the Loans of, and L/C Borrowings
owed to, all non-Defaulting Lenders on a pro rata basis prior to being
applied to the payment of any Loans of, or L/C Borrowings owed to, that Defaulting Lender.
Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are
applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral
pursuant to this Section 3.19(a)(ii) shall be deemed paid to and redirected by that
Defaulting Lender, and each Lender irrevocably consents hereto.




(iii) Certain Fees. Each Defaulting Lender (x) shall be entitled to receive
any facility fee pursuant to Section 3.5(a) for any period during which that Lender
is a Defaulting Lender only to extent allocable to the sum of (1) the outstanding amount of
the Revolving Loans funded by it and (2) its Commitment Percentage of the stated amount of
Letters of Credit and Swingline Loans for which it has provided Cash Collateral pursuant to
Section 2.3, Section 2.4, Section 3.18, or Section
3.19(a)(ii), as applicable (and the Borrower shall (A) be required to pay to each L/C
Issuer and the Swingline Lender, as applicable, the amount of such fee allocable to its
Fronting Exposure arising from that Defaulting Lender, (B) with respect to any Facility Fee
that a Defaulting Lender is not entitled to receive pursuant to clause (x) above, be
required to pay (without duplication of any other payment obligation of the Borrower with
respect to Facility Fees) to the Administrative Agent for the account of each non-Defaulting
Lender that portion of any such Facility Fee otherwise payable for the account of such
Defaulting Lender with respect to such Defaulting Lender’s participation in Swingline Loans
and/or Letters of Credit that has been reallocated to such non-Defaulting Lenders pursuant
to clause (iv) below and (C) not be required to pay the remaining amount of such fee that
otherwise would have been required to have been paid to that Defaulting Lender) and (y)
shall be limited in its right to receive Letter of Credit Fees as provided in Section
3.5(c)(i).




(iv) Reallocation of Applicable Percentages to Reduce Fronting Exposure.
During any period in which there is a Defaulting Lender, for purposes of computing the
amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Swingline Loans or Letters of Credit pursuant to Sections 2.3 and
2.4, the “Commitment Percentage” of each non-Defaulting Lender shall be computed
without giving effect to the Commitment of that Defaulting Lender; provided,
that, (x) each such reallocation shall be given effect only if, at the date the
applicable Lender becomes a Defaulting Lender, no Default or Event of Default exists; and
(y) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or fund
participations in Letters of Credit and Swingline Loans shall not exceed the


positive difference, if any, of (1) the Commitment of that non-Defaulting Lender
minus (2) the aggregate outstanding amount of the Revolving Loans of that Lender.
No reallocation hereunder shall constitute a waiver or release of any claim of any party
hereunder against a Defaulting Lender arising from that Lender having become a Defaulting
Lender, including any claim of any Lender that is not a Defaulting Lender as a result of
such Lender’s increased exposure following such reallocation.




 


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(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline
Lender and the L/C Issuers agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the effective date specified in such notice and subject to any
conditions set forth therein (which may include arrangements with respect to any Cash Collateral),
that Lender will, to the extent applicable, purchase that portion of outstanding Loans of the other
Lenders or take such other actions as the Administrative Agent may determine to be necessary to
cause the Revolving Loans and funded and unfunded participations in Letters of Credit and Swingline
Loans to be held on a pro rata basis by the Lenders in accordance with their
Commitment Percentages (without giving effect to Section 3.19(a)(iv)), whereupon that
Lender will cease to be a Defaulting Lender; provided that no adjustments will be
made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower
while that Lender was a Defaulting Lender; provided, further, that, except
to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from that Lender having been a Defaulting Lender.



SECTION 4




CONDITIONS



4.1 Closing Conditions.



The obligation of the Lenders to enter into this Credit Agreement and to make the initial
Loans shall be subject to satisfaction of the following conditions (in form and substance
acceptable to the Lenders):



(a) The Administrative Agent shall have received original counterparts of this Credit
Agreement executed by each of the parties hereto;



(b) The Administrative Agent shall have received an appropriate original Revolving Note for
each Lender requesting a Revolving Note, executed by the Borrower;



(c) The Administrative Agent shall have received an appropriate original Swingline Note for
the Swingline Lender, executed by the Borrower;



(d) The Administrative Agent shall have received all documents it may reasonably request
relating to the existence and good standing of the Borrower, the corporate or other necessary
authority for and the validity of the Credit Documents, and any other matters relevant thereto, all
in form and substance reasonably satisfactory to the Administrative Agent;



(e) The Administrative Agent shall have received one or more legal opinions of Harry L.
Goldsmith, Esq., general counsel for the Borrower, and/or Bass, Berry & Sims PLC, outside counsel
for the Borrower, dated as of the Closing Date in form and substance reasonably satisfactory to the
Administrative Agent and its counsel;


 


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(f) Since August 28, 2010 there shall not have occurred or otherwise exist an event or
condition which has a Material Adverse Effect;



(g) The Administrative Agent shall have received, for its own account and for the accounts of
the Lenders, all fees and expenses required by this Credit Agreement or any other Credit Document
to be paid on or before the Closing Date;



(h) The Administrative Agent shall have received evidence that all obligations due and owing
under the Existing Credit Agreement shall have been, or concurrently with the date hereof will be,
paid in full; and



(i) The Administrative Agent shall have received such other documents, agreements or
information which may be reasonably requested by the Administrative Agent.



4.2 Conditions to all Extensions of Credit.



The obligations of each Lender to make, convert or extend any Loan (including the initial
Loans), and of any L/C Issuer to issue, extend or amend a Letter of Credit hereunder are subject to
satisfaction of the following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 4.1:



(a) The Borrower shall have delivered (A) in the case of any Revolving Loan to the
Administrative Agent, an appropriate Notice of Borrowing or Notice of Extension/Conversion, (B) in
the case of any Swingline Loan to the Administrative Agent, an appropriate Notice of Borrowing or
Notice of Extension/Conversion or (C) in the case of any Letter of Credit, to the applicable L/C
Issuer an appropriate request for issuance (with a copy to the Administrative Agent) in accordance
with the provisions of Section 2.4(b);



(b) The representations and warranties set forth in Section 5 shall be, subject to the
limitations set forth therein, true and correct in all material respects as of such date (except
for those which expressly relate to an earlier date, which shall remain true and correct in all
material respects as of such earlier date);



(c) There shall not have been commenced against the Borrower an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or any case,
proceeding or other action for the appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Borrower or for any substantial part of its
Property or for the winding up or liquidation of its affairs, and such involuntary case or other
case, proceeding or other action shall remain undismissed, undischarged or unbonded;



(d) No Default or Event of Default shall exist and be continuing either prior to or after
giving effect thereto; and



(e) Immediately after giving effect to the making of such Loan (and the application of the
proceeds thereof) or the issuance, extension or amendment of such Letter of Credit, as applicable,
the sum of the aggregate principal amount of outstanding Revolving Loans plus the aggregate
principal amount of outstanding Swingline Loans plus the L/C Obligations outstanding shall
not exceed the Revolving Committed Amount.



The delivery of each Notice of Borrowing and each Notice of Extension/Conversion shall constitute a
representation and warranty by the Borrower of the correctness of the matters specified in
subsections (b), (c), (d) and (e) above. Notwithstanding the foregoing, the Borrower may not
request any Loans hereunder while a Change of Control Standstill Period shall be in effect pursuant
to Section 3.4(e) hereof.



 


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SECTION 5




REPRESENTATIONS AND WARRANTIES



The Borrower hereby represents to the Administrative Agent and each Lender that:



5.1 Financial Position; No Internal Control Event.



(a) The audited consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as of August 28, 2010 and the audited consolidated statement of earnings and statement of cash
flows for the year ended August 28, 2010 have heretofore been made available to each Lender. Such
financial statements (including the notes thereto) (a) have been audited by Ernst & Young LLP, (b)
have been prepared in accordance with GAAP consistently applied throughout the periods covered
thereby and (c) present fairly (on the basis disclosed in the footnotes to such financial
statements) the consolidated financial position, results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such date and for such periods. During the period
from August 28, 2010 to and including the Closing Date, there has been no sale, transfer or other
disposition by the Borrower or any of its Subsidiaries of any material part of the business or
property of the Borrower and its consolidated Subsidiaries, taken as a whole, and no purchase or
other acquisition by any of them of any business or property (including any capital stock of any
other person) material in relation to the consolidated financial position of the Borrower and its
consolidated Subsidiaries, taken as a whole, in each case, which, is not reflected in the foregoing
financial statements or in the notes thereto and has not otherwise been disclosed in writing to the
Lenders on or prior to the Closing Date. Since August 28, 2010, through and including the Closing
Date, there has not occurred an event or condition which has had a Material Adverse Effect.



(b) To the best knowledge of the Borrower, no Internal Control Event exists or has occurred
since the date of the Audited Financial Statements through the Closing Date.



5.2 Organization; Existence; Compliance with Law.



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



5.3 Power; Authorization; Enforceable Obligations.



The Borrower has the corporate or other necessary power and authority, and the legal right, to
make, deliver and perform the Credit Documents to which it is a party, and in the case of the
Borrower, to borrow hereunder, and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Credit Agreement and to authorize the execution,
delivery and performance of the Credit Documents to which it is a party. No consent or
authorization of, filing with, notice to or other similar act


 


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by or in respect of, any Governmental Authority or any other Person is required to be obtained or made
by or on behalf of the Borrower in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Credit Documents to which the Borrower is
a party. This Credit Agreement has been, and each other Credit Document to which the Borrower is a
party will be, duly executed and delivered on behalf of the Borrower. This Credit Agreement
constitutes, and each other Credit Document to which the Borrower is a party when executed and
delivered will constitute, a legal, valid and binding obligation of the Borrower enforceable
against such party in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law).




5.4 No Legal Bar.



The execution, delivery and performance of the Credit Documents by the Borrower, the
borrowings hereunder and the use of the proceeds thereof (a) will not violate any Requirement of
Law or contractual obligation of the Borrower or any of its Subsidiaries in any respect that would
reasonably be expected to have a Material Adverse Effect, (b) will not result in, or require, the
creation or imposition of any Lien (other than a Permitted Lien) on any of the properties or
revenues of any of the Borrower or any of its Subsidiaries pursuant to any such Requirement of Law
or contractual obligation, and (c) will not violate or conflict with any provision of the
Borrower’s articles of incorporation or by-laws.



5.5 No Material Litigation.



Except as disclosed in Schedule 5.5, there are no actions, suits or proceedings
pending or, to the knowledge of the Borrower, threatened against or affecting the Borrower, any of
its Subsidiaries or any of its properties before any Governmental Authority that (a) could
reasonably be expected to have a Material Adverse Effect or (b) in any manner draw into question
the validity, legality or enforceability of any Credit Document or any transaction contemplated
thereby.



5.6 No Default.



Neither the Borrower nor any of its Subsidiaries is in default under or with respect to any of
their contractual obligations in any respect which would be reasonably expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.



5.7 Ownership of Property; Liens.



Each of the Borrower and its Subsidiaries has good record and marketable title in fee simple
to, or a valid leasehold interest in, all its material real property, and good title to, or a valid
leasehold interest in, all its other material property, and none of such property is subject to any
Lien, except for Permitted Liens.



5.8 No Burdensome Restrictions.



Except as previously disclosed in writing to the Lenders on or prior to the Closing Date, no
Requirement of Law or contractual obligation of the Borrower or any of its Subsidiaries would be
reasonably expected to have a Material Adverse Effect.


 


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5.9 Taxes.



Each of the Borrower and its Subsidiaries has filed or caused to be filed all United States
federal income tax returns and all other material tax returns which, to the knowledge of the
Borrower, are required to
be filed and has paid (a) all taxes shown to be due and payable on said returns or (b) all taxes
shown to be due and payable on any assessments of which it has received notice made against it or
any of its property and all other taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any (i) taxes, fees or other charges with respect to
which the failure to pay, in the aggregate, would not have a Material Adverse Effect or (ii) taxes,
fees or other charges the amount or validity of which are currently being contested and with
respect to which reserves in conformity with GAAP have been provided on the books of such Person),
and no tax Lien has been filed, and, to the best knowledge of the Borrower, no claim is being
asserted, with respect to any such tax, fee or other charge.



5.10 ERISA.



(a) Each Plan is in compliance with the applicable provisions of ERISA, the Code and other
Federal or state laws except to the extent that noncompliance would not reasonably be expected to
have a Material Adverse Effect. Each Pension Plan that is intended to be a qualified
plan under Section 401(a) of the Code has received a favorable determination letter (or an opinion
letter upon which the Borrower is entitled to rely) from the Internal Revenue Service to the effect
that the form of such Plan is qualified under Section 401(a) of the Code and the trust related
thereto has been determined by the Internal Revenue Service to be exempt from federal income tax
under Section 501(a) of the Code or an application for such a letter is currently being processed
by the Internal Revenue Service. To the knowledge of the Borrower, nothing has occurred that would
prevent, or cause the loss of, such tax-qualified status.



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



(c) (i) No ERISA Event has occurred and the Borrower is not aware of any fact, event or
circumstance that could reasonably be expected to constitute or result in an ERISA Event with
respect to any Pension Plan; (ii) the Borrower and each ERISA Affiliate is in material compliance
with the applicable requirements under the Pension Funding Rules in respect of each Pension Plan,
and no waiver of the minimum funding standards under the Pension Funding Rules has been applied for
or obtained; (iii) (A) as of the most recent valuation date for any Pension Plan, the final
actuarially-certified funding target attainment percentage is sixty percent (60%) or higher and (B)
neither the Borrower nor any ERISA Affiliate knows of any facts or circumstances that could
reasonably be expected to cause the final actuarially-certified funding target attainment
percentage for any such plan to drop below sixty percent (60%) as of the most recent valuation
date, in each case, as determined under Section 430 of the Code and taking into account any
exceptions, actuarial assumptions, extensions of such date and supplemental or additional
contributions provided for in or permitted to be considered by Section 430 or the regulations
promulgated thereunder; (iv) neither the Borrower nor any ERISA Affiliate has incurred any material
liability to the PBGC other than for the payment of premiums, and there are no premium payments
which have become due that are unpaid; (v) neither the Borrower nor any ERISA Affiliate has engaged
in a transaction that could be subject to Section 4069 or Section 4212(c) of ERISA; and (vi) no
Pension Plan has been terminated by the plan administrator thereof nor by the PBGC, and to the
Borrower’s knowledge, no event or circumstance has occurred that could reasonably be expected to
cause the PGBC to institute proceedings under Title IV of ERISA to terminate any Pension Plan.


 


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5.11 Governmental Regulations, Etc.



(a) No part of the proceeds of the Loans will be used, directly or indirectly, for the purpose
of purchasing or carrying any “margin stock” in violation of Regulation U. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the requirements of FR Form U-1
referred to in said Regulation U. No indebtedness being reduced or retired out of the proceeds of
the Loans was or will be incurred for the purpose of purchasing or carrying any margin stock within
the meaning and in violation of Regulation U or any “margin security” within the meaning and in
violation of Regulation T. “Margin stock” within the meanings of Regulation U does not constitute
more than 25% of the value of the consolidated assets of the Borrower and its Subsidiaries. None
of the transactions contemplated by this Credit Agreement (including, without limitation, the
direct or indirect use of the proceeds of the Loans) will violate or result in a violation of the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or
regulations issued pursuant thereto, or Regulation T, U or X.



(b) Neither the Borrower nor any of its Subsidiaries is subject to regulation under the
Federal Power Act or the Investment Company Act of 1940, each as amended. In addition, neither the
Borrower nor any of its Subsidiaries is an “investment company” registered or required to be
registered under the Investment Company Act of 1940, as amended, and is not controlled by such a
company.



(c) Each of the Borrower and its Subsidiaries has obtained all licenses, permits, franchises
or other governmental authorizations necessary to the ownership of its respective Property and to
the conduct of its business, except where such failure could not reasonably be expected to have a
Material Adverse Effect.



(d) Neither the Borrower nor any of its Subsidiaries is in violation of any applicable
statute, regulation or ordinance of the United States of America, or of any state, city, town,
municipality, county or any other jurisdiction, or of any agency thereof (including without
limitation, environmental laws and regulations), except where such violation could not reasonably
be expected to have a Material Adverse Effect.



(e) Each of the Borrower and its Subsidiaries is current with all material reports and
documents, if any, required to be filed with any state or federal securities commission or similar
agency and is in full compliance in all material respects with all applicable rules and regulations
of such commissions, except where such failure could not reasonably be expected to have a Material
Adverse Effect.



5.12 Subsidiaries.



Schedule 5.12 sets forth all the Subsidiaries of the Borrower at the Closing Date and
the jurisdiction of their organization.



5.13 Purpose of Loans.



The proceeds of the Loans hereunder shall be used solely by the Borrower to (a) to refinance
existing Indebtedness of the Borrower under existing credit agreements, (b) repurchase stock in the
Borrower, (c) to finance acquisitions to the extent permitted under this Credit Agreement and (d)
for the working capital, commercial paper back up, capital expenditures and other general corporate
purposes of the Borrower and its Subsidiaries. The Letters of Credit shall be used only for or in
connection with obligations relating to transactions entered into by the Borrower in the ordinary
course of business.


 


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5.14 Disclosure.



No certificate (including any financial statements or other documents or attached thereto)
furnished by or on behalf of the Borrower to the Administrative Agent or any Lender in connection
with the transactions contemplated hereby and the negotiation of this Credit Agreement or delivered
hereunder (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.



5.15 Taxpayer Identification Number.



The Borrower’s true and correct U.S. taxpayer identification number is set forth on
Schedule 10.1.



5.16 Environmental Compliance.



The Borrower and its Subsidiaries conduct in the ordinary course of business a review of the
effect of existing Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations and properties, and
as a result thereof the Borrower has reasonably concluded that such Environmental Laws and claims
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.



5.17 Solvency.



The Borrower and its Subsidiaries are Solvent on a consolidated basis.




5.18 OFAC.



The Borrower (i) is not a person whose property or interest in property is blocked or subject
to blocking pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (66
Fed. Reg. 49079 (2001)), (ii) does not engage in any dealings or transactions prohibited by Section
2 of such executive order, or is otherwise associated with any such person in any manner violative
of Section 2, or (iii) is not a person on the list of Specially Designated Nationals and Blocked
Persons or subject to the limitations or prohibitions under any other U.S. Department of Treasury’s
Office of Foreign Assets Control regulation or executive order.



5.19 Patriot Act.



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


 


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SECTION 6




AFFIRMATIVE COVENANTS



The Borrower hereby covenants and agrees that so long as this Credit Agreement is in effect or
any amounts payable hereunder or under any other Credit Document shall remain outstanding, and
until all of the Commitments hereunder shall have terminated:



6.1 Information Covenants.



The Borrower will furnish, or cause to be furnished, to the Administrative Agent and the
Lenders:



(a) Annual Financial Statements. As soon as available, and in any event within the
earlier of (i) the 100th day after the end of each fiscal year of the Borrower and (ii)
the day that is ten (10) Business Days after the date the Borrower’s annual report on Form 10-K is
required to be filed with the SEC, as of the end of such fiscal year, a consolidated balance sheet,
consolidated statement of income, consolidated statement of stockholders’ equity and consolidated
statement of cash flows of the Borrower and its Subsidiaries for such fiscal year, setting forth in
comparative form consolidated figures for the preceding fiscal year, all such financial information
described above to be in reasonable form and detail and prepared in accordance with GAAP, such
consolidated statements to be audited and accompanied by (i) a report and opinion of Ernst & Young
LLP or another Registered Public Accounting Firm of nationally recognized standing reasonably
acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with
generally accepted auditing standards and applicable Securities Laws and shall not be subject to
any “going concern” or like qualification or exception or any qualification or exception as to the
scope of such audit or with respect to the absence of any material misstatement and (ii) an opinion
of such Registered Public Accounting Firm independently assessing the Borrower’s internal controls
over financial reporting in accordance with Item 308 of SEC Regulation S-K, PCAOB Auditing Standard
No. 2, and Section 404 of Sarbanes-Oxley expressing a conclusion that contains no statement that
there is a material weakness in such internal controls, except for such material weaknesses that
have been (x) disclosed to the Administrative Agent (it being understood that the Borrower’s filing
with the SEC of a notice of such material weakness shall be deemed disclosure to the Administrative
Agent), who in turn discloses such material weaknesses to the Lenders, and (y) remedied or
otherwise diligently addressed (or in the process of being diligently addressed) by the Borrower in
accordance with recommendations made by the Borrower’s external auditors in consultation with the
Borrower.



(b) Quarterly Financial Statements. Beginning with the fiscal quarter ending November
19, 2011, as soon as available, and in any event within the earlier of (i) the 50th day
after the end of each of the first three fiscal quarters of each fiscal year of the Borrower and
(ii) the day that is five (5) Business Days after the date the Borrower’s quarterly report on Form
10-Q is required to be filed with the SEC, as of the end of such fiscal quarter, together with a
related condensed consolidated balance sheet, a condensed consolidated statement of income and a
condensed consolidated statement of cash flows of the Borrower and its Subsidiaries for such fiscal
quarter, in each case setting forth in comparative form consolidated figures for the corresponding
period of the preceding fiscal year, except for the condensed consolidated balance sheet that will
be presented in comparative form to the Borrower’s most recent audited consolidated balance sheet,
all such financial information described above to be in reasonable form and detail and reasonably
acceptable to the Administrative Agent, and accompanied by a certificate of a Financial Officer of
the Borrower to the effect that such quarterly financial statements fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries and have been prepared in
accordance with GAAP, subject to changes resulting from audit and normal year-end audit adjustments
and the absence of footnotes.


 


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(c) Officer’s Certificate. At the time of delivery of the financial statements
provided for in Sections 6.1(a) and 6.1(b) above, a certificate of a Financial
Officer of the Borrower substantially in the form of Schedule 6.1(c), (i) demonstrating
compliance with the financial covenants contained in Sections 6.10 and 6.11 by
calculation thereof as of the end of each such fiscal period, (ii) stating that no Default or Event
of Default exists, or if any Default or Event of Default does exist, specifying the nature and
extent thereof and what action the Borrower proposes to take with respect thereto and (iii)
certifying as to the Borrower’s current senior unsecured (non-credit enhanced) long term debt
rating from S&P, Moody’s and/or Fitch.



(d) Reports. Promptly upon transmission or receipt thereof, (a) copies of any filings
on Forms 8-K, 10-Q or 10-K and any other material filings or registrations with the SEC, or any
successor agency, and copies of all financial statements, proxy statements, material notices and
material reports as the Borrower or any of its Subsidiaries shall send to its shareholders or to a
holder of any Indebtedness owed by the Borrower or any of its Subsidiaries in its capacity as such
a holder and (b) upon the request of the Administrative Agent, all reports and written information
provided or received within the two year period prior to the date of the request to and from the
United States Environmental Protection Agency, or any state or local agency responsible for
environmental matters, the United States Occupational Health and Safety Administration, or any
state or local agency responsible for health and safety matters, or any successor agencies or
authorities concerning environmental, health or safety matters.



(e) Notices. The Borrower will give written notice to the Administrative Agent (a)
promptly upon obtaining knowledge thereof, of the occurrence of an event or condition consisting of
a Default or Event of Default, specifying the nature and existence thereof and what action the
Borrower proposes to take with respect thereto, (b) upon the occurrence of any of the following
with respect to the Borrower or any of its Subsidiaries: (i) promptly upon the Borrower’s
determination thereof, the pendency or commencement of any litigation, arbitral or governmental
proceeding against such Person which is reasonably likely to have a Material Adverse Effect, or
(ii) promptly upon the Borrower’s determination thereof, the institution of any proceedings against
such Person with respect to, or the receipt of notice by such Person of potential liability or
responsibility for violation, or alleged violation of any federal, state or local law, rule or
regulation, including but not limited to, Environmental Laws, the violation of which would likely
have a Material Adverse Effect, (c) promptly upon obtaining knowledge thereof, of any change in
accounting policies or financial reporting practices by the Borrower or any Subsidiary that the
Borrower’s external auditors consider to have a material impact on the consolidated financial
statements of the Borrower and its Subsidiary, and (d) promptly upon obtaining knowledge thereof,
of the determination by the Registered Public Accounting Firm providing the opinion required under
Section 6.1(a)(ii) (in connection with its preparation of such opinion) or the Borrower’s
determination at any time of the occurrence or existence of any Internal Control Event.



(f) ERISA. Upon obtaining knowledge thereof, the Borrower will give written notice to
the Administrative Agent promptly (and in any event within five business days) of: (i) of any event
or condition, including, but not limited to, any Reportable Event, that constitutes, or might
reasonably lead to, an ERISA Event; or (ii) any change in the funding status of any Pension Plan
that reasonably could be expected to have a Material Adverse Effect, together with a description of
any such event or condition or a copy of any such notice and a statement by a Financial Officer of
the Borrower briefly setting forth the details regarding such event, condition, or notice, and the
action, if any, which has been or is being taken or is proposed to be taken by the Borrower with
respect thereto. Promptly upon request, the Borrower shall furnish the Administrative Agent and
the Lenders with such additional information concerning any Plan as may be reasonably requested,
including, but not limited to, copies of each annual report/return (Form 5500 series), as well as
all schedules and attachments thereto required to be filed with the Department of Labor and/or the
Internal Revenue Service pursuant to ERISA and the Code, respectively, for each “plan year” (within
the meaning of Section 3(39) of ERISA).


 


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(g) Change of Control; Reorganization. Upon obtaining knowledge thereof, the Borrower
will promptly provide the Administrative Agent and the Lenders with (i) written notice of any
actual or expected Change of Control or Reorganization, (ii) the circumstances and relevant facts
regarding such Change of Control or Reorganization (including the information with respect to pro
forma historical income, cash flow and capitalization, each after giving effect to such Change of
Control or Reorganization, as the case may be), and (iii) such additional information and documents
regarding such Change of Control or Reorganization as may be reasonably requested by the
Administrative Agent and/or any Lender.



(h) Debt Rating. No later than five (5) days after a Financial Officer obtains
knowledge of any such issuance of change, give notice to the Administrative Agent (by telephone,
followed promptly by written notice transmitted by facsimile with a hard copy sent promptly
thereafter) of any issuance of change (either expressly or pursuant to a letter from S&P, Moody’s
or Fitch stating an “implied” rating), in rating by S&P, Moody’s or Fitch in respect of the
Borrower’s non-credit enhanced senior long-term debt (secured or unsecured), together with details
thereof.



(i) Other Information. With reasonable promptness upon any such request, such other
information regarding the business, properties or financial condition of the Borrower or any of its
Subsidiaries as the Administrative Agent or the Required Lenders may reasonably request.



Documents required to be delivered pursuant to Section 6.1(a), (b) or
(d) (to the extent any such documents are included in materials otherwise filed with the
SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on
the date (i) on which the Borrower posts such documents, or provides a link thereto on the
Borrower’s website on the Internet at the website address listed on Schedule 10.1; or (ii)
on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if
any, to which each Lender and the Administrative Agent have access (whether a commercial,
third-party website or whether sponsored by the Administrative Agent); provided that: (i)
the Borrower shall deliver paper copies of such documents to the Administrative Agent or any Lender
upon its request to the Borrower to deliver such paper copies until a written request to cease
delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower
shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such
documents and provide to the Administrative Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. The Administrative Agent shall have no obligation
to request the delivery of or to maintain paper copies of the documents referred to above, and in
any event shall have no responsibility to monitor compliance by the Borrower with any such request
by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it
or maintaining its copies of such documents.



The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will
make available to the Lenders materials and/or information provided by or on behalf of the Borrower
hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders who may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its Affiliates, or the
respective securities of any of the foregoing, and who may be engaged in investment and other
market-related activities with respect to such Person’s securities) (each, a “Public
Lender”). The Borrower hereby agrees that so long as the Borrower is the issuer of any
outstanding debt or equity securities that are registered under the Securities Exchange Act of 1934
and/or publicly traded on a registered securities exchange or in a generally accepted
over-the-counter market, or is actively contemplating issuing any such securities, (w) all Borrower
Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked
“PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the
first


 


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page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to
have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to the Borrower or its
securities for purposes of Securities Laws (provided, however, that to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 10.14; (y)
all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the
Platform designated “Public Side Information;” and (z) the Administrative Agent and the Arrangers
shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable
only for posting on a portion of the Platform not designated “Public Side Information”.
Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower
Materials “PUBLIC”. Notwithstanding any other provision contained herein, nothing in this
paragraph shall be deemed to authorize or otherwise encourage any Lender to effect any transaction
in the Borrower’s publicly traded securities while in possession of any information of a non-public
nature that is included in any Borrower Materials designated as “PUBLIC” in the Platform.




6.2 Preservation of Existence and Franchises.



Except as would not result in a Material Adverse Effect, the Borrower will, and will cause
each of its Subsidiaries to, do all things necessary to preserve and keep in full force and effect
its existence, rights, franchises and authority.



6.3 Books and Records.



The Borrower will, and will cause each of its Subsidiaries to, keep complete and accurate
books and records of its transactions in accordance with good accounting practices on the basis of
GAAP (including the establishment and maintenance of appropriate reserves).



6.4 Compliance with Law.



The Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders, and all applicable restrictions imposed by all Governmental Authorities,
applicable to it and its property if noncompliance with any such law, rule, regulation, order or
restriction would have a Material Adverse Effect.



6.5 Payment of Taxes and Other Indebtedness.



Except as otherwise provided pursuant to the terms of the definition of “Permitted Liens” set
forth in Section 1.1, the Borrower will, and will cause each of its Subsidiaries to, pay
and discharge (a) all taxes, assessments and governmental charges or levies imposed upon it, or
upon its income or profits, or upon any of its properties, before they shall become delinquent, (b)
all lawful claims (including claims for labor, materials and supplies) which, if unpaid, might give
rise to a Lien upon any of its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due.



6.6 Insurance.



The Borrower will, and will cause each of its Subsidiaries to, at all times maintain in full
force and effect insurance, which may include self insurance, in such amounts and covering such
risks as is consistent with sound business practices and similarly situated corporations.


 


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6.7 Maintenance of Property.



The Borrower will, and will cause each of its Subsidiaries to, maintain and preserve its
properties and equipment material to the conduct of its business in good repair, working order and
condition, normal wear and tear and casualty and condemnation excepted, and will make, or cause to
be made, in such properties and equipment from time to time all repairs, renewals, replacements,
extensions, additions, betterments and improvements thereto as may be needed or proper, to the
extent and in the manner customary for companies in similar businesses.



6.8 Use of Proceeds.



The Borrower will use the proceeds of the Loans solely for the purposes set forth in
Section 5.13.



6.9 Audits/Inspections.



Upon reasonable notice and during normal business hours, the Borrower will, and will cause
each of its Subsidiaries to, permit representatives appointed by the Administrative Agent,
including, without limitation, independent accountants, agents, attorneys, and appraisers to visit
and inspect its property, including its books and records, its accounts receivable and inventory,
its facilities and its other business assets, and to make photocopies or photographs thereof and to
write down and record any information such representative obtains and shall permit the
Administrative Agent or its representatives to investigate and verify the accuracy of information
provided to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person.



6.10 Adjusted Debt to EBITDAR Ratio.



The Borrower shall cause the ratio of Consolidated Adjusted Debt to Consolidated EBITDAR as of
the last day of each fiscal quarter to be no greater than 3.25 to 1.00.



6.11 Interest Coverage Ratio.



The Borrower shall cause the Consolidated Interest Coverage Ratio as of the last day of each
fiscal quarter to be no less than 2.50 to 1.0.



SECTION 7




NEGATIVE COVENANTS



The Borrower hereby covenants and agrees that, so long as this Credit Agreement is in effect
or any amounts payable hereunder or under any other Credit Document shall remain outstanding, and
until all of the Commitments hereunder shall have terminated:



7.1 Liens.



The Borrower will not, nor will it permit any of its Subsidiaries to, contract, create, incur,
assume or permit to exist any Lien with respect to any of their Property, whether now owned or
after acquired, except for Permitted Liens.


 


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7.2 Nature of Business.



The Borrower will not, nor will it permit any of its Subsidiaries to, substantively alter the
character or conduct of the business conducted by any such Person as of the Closing Date.



7.3 Consolidation, Merger, Sale or Purchase of Assets, etc.



The Borrower will not, nor will it permit any of its Subsidiaries to:



(a) except in connection with a disposition of assets permitted by the terms of subsection (c)
below, dissolve, liquidate or wind up their affairs;



(b) enter into any transaction of merger or consolidation; provided, however,
that, so long as no Default or Event of Default would be directly or indirectly caused as a result
thereof, (i) the Borrower may merge or consolidate with any of its Subsidiaries provided that the
Borrower is the surviving corporation; (ii) any Subsidiary of the Borrower may merge or consolidate
with any other Subsidiary of the Borrower; (iii) the Borrower or any of its Subsidiaries may merge
or consolidate with any Person (other than the Borrower or any of its Subsidiaries) provided that
(A) the Borrower or a Subsidiary of the Borrower is the surviving corporation and (B) after giving
effect on a pro forma basis to such merger or consolidation, no Default or Event of Default would
exist hereunder; and (iv) the Borrower may consummate the Reorganization pursuant to and in
accordance with the provisions of the last paragraph of this Section 7.3.



(c) sell, lease, transfer or otherwise dispose of Property owned by and material to the
Borrower and its Subsidiaries, taken as a whole (other than any such sale, lease, transfer or other
disposition by a Subsidiary of the Borrower to the Borrower or any other Subsidiary of the
Borrower), provided, however, for the purposes of this subsection (c),
sale-leaseback transactions entered into by the Borrower or its Subsidiaries shall not be deemed
material to the Borrower and its Subsidiaries, taken as a whole to the extent (i) the aggregate
amount with respect to all such transactions entered into after the Closing Date does not exceed
$500,000,000 and (ii) that after giving effect to any such sale-leaseback transaction, the Borrower
and its Subsidiaries own Property (x) unencumbered by any Liens other than Liens permitted by
clauses (i) through (xv) of the definition of Permitted Liens and (y) having an aggregate fair
market value of at least $2,000,000,000; and, provided further, the Borrower may
consummate the Reorganization pursuant to and in accordance with the last paragraph of this
Section 7.3; or



(d) except as otherwise permitted by Section 7.3(a)or Section 7.3(b), acquire
all or any portion of the capital stock or securities of any other Person or purchase, lease or
otherwise acquire (in a single transaction or a series of related transactions) all or any
substantial part of the Property of any other Person; provided that (i) the Borrower or any
of its Subsidiaries shall be permitted to make acquisitions of the type referred to in this
Section 7.3(d), so long as such acquisitions are non-hostile and (ii) after giving effect
on a pro forma basis to any such acquisition (including but not limited to any Indebtedness to be
incurred or assumed by the Borrower or any of its Subsidiaries in connection therewith), no Default
or Event of Default would exist hereunder.



Notwithstanding the foregoing, but subject to the following provisions of this paragraph, the
Borrower will be permitted to effect an internal reorganization that will result in the Borrower
changing its state of incorporation from Nevada to Delaware and that will be accomplished either by
(i) the Borrower merging with and into a new wholly-owned Subsidiary of the Borrower, which
Subsidiary (x) will be incorporated in the state of Delaware and the surviving corporation of such
merger, (y) shall, as a result of such merger, assume by operation of law all of the rights and
obligations of the Borrower under the Credit Agreement, and (z) shall, immediately after the
consummation of such merger, have management and controlling ownership substantially similar to
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immediately
prior to the consummation of such merger or (ii) if applicable, the Borrower becoming a wholly-owned
Subsidiary of a new holding company incorporated in the State of Delaware, the outstanding capital
stock of which holding company will be owned by the current shareholders of the Borrower (either
such transaction, the “Reorganization”). The Lenders hereby agree that the Borrower shall
be permitted to consummate the Reorganization so long as (i) the consummation of the Reorganization
shall not result in a material and adverse impact to the interests of the Administrative Agent
and/or the Lenders under this Credit Agreement and the Notes, and (ii) after giving effect to the
Reorganization, (A) the Borrower become a wholly-owned subsidiary of a corporation organized in the
State of Delaware and (B) that the management and controlling ownership of such parent corporation
immediately after the consummation of the Reorganization be substantially similar to that of the
Borrower immediately prior to the consummation of the Reorganization. The Borrower hereby agrees
(i) to provide the Administrative Agent and the Lenders with such additional information and
documents related to the Reorganization as may be reasonably requested by the Administrative Agent
and/or any Lender and (ii) to execute within a reasonable time after consummation of the
Reorganization (not to exceed sixty (60) days unless otherwise agreed by the Administrative Agent)
such appropriate amendments, corporate authority documents and other supporting documents to or
under the Credit Agreement evidencing any changes made necessary by the consummation of the
Reorganization (including, without limitation, (x) in the event the Borrower merges with and into a
new wholly-owned Subsidiary of the Borrower, a legal opinion of Borrower’s counsel, in form and
substance reasonably acceptable to the Administrative Agent’s legal counsel, addressing the
enforceability of the Credit Documents with respect to such surviving Subsidiary and (y) in the
event that the Borrower becomes a wholly-owned subsidiary of a new parent holding company
incorporated in Delaware, a guaranty by such new parent holding company of the Borrower’s
obligations under the Credit Agreement) and such other changes as may be mutually agreed to by the
Borrower (or its successor, if applicable) and the parties hereto, each in form and substance
reasonably acceptable to the Borrower (or its successor, if applicable), the Administrative Agent
and the Required Lenders. The Borrower acknowledges that the agreement of the Lenders evidenced in
this paragraph is given in reliance upon the foregoing conditions and agreements and shall be
deemed revoked if any such condition or agreement is breached.




7.4 Fiscal Year.



The Borrower will not, nor will it permit any of its Subsidiaries to, change its fiscal year
without first obtaining the written consent of the Required Lenders (such consent not to be
unreasonably withheld).



7.5 Subsidiary Indebtedness.



The Borrower will not permit any of its Subsidiaries to contract, create, incur, assume or
permit to exist any Indebtedness, except:



(a) Indebtedness set forth on Schedule 7.5 (and any renewals, refinancings or
extensions thereof on terms and conditions no more favorable, in the aggregate, to such creditor
than such existing Indebtedness and in a principal amount not in excess of that outstanding as of
the date of such renewal, refinancing or extension);



(b) intercompany Indebtedness owed by a Subsidiary of the Borrower to the Borrower or to one
or more wholly-owned Subsidiaries of the Borrower;



(c) Indebtedness of the Subsidiaries (excluding intercompany Indebtedness owed to the Borrower
or to one or more wholly-owned Subsidiaries of the Borrower) incurred after the Closing Date to
provide all or a portion of the purchase price of short-lived assets (such as trucks and computer
equipment)
which may be treated as Capital Leases in accordance with GAAP in an aggregate amount not to
exceed $175,000,000 in any fiscal year;


 


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(d) Indebtedness of the Subsidiaries (excluding intercompany Indebtedness owed to the Borrower
or to one or more wholly-owned Subsidiaries of the Borrower) incurred in connection with synthetic
leases, tax retention operating leases, off-balance sheet loans or similar off-balance sheet
financings in an aggregate amount not to exceed $150,000,000 in any two consecutive fiscal years;
and



(e) other Indebtedness of the Subsidiaries (excluding intercompany Indebtedness owed to the
Borrower or to one or more wholly-owned Subsidiaries of the Borrower) in an aggregate principal
amount not to exceed $200,000,000 at any time outstanding.



SECTION 8




EVENTS OF DEFAULT



8.1 Events of Default.



An Event of Default shall exist upon the occurrence of any of the following specified events
(each an “Event of Default”):



(a) Payment. The Borrower shall




(i) default in the payment when due of any principal of any of the Loans, or




(ii) default, and such default shall continue for five (5) or more Business
Days, in the payment when due of any interest on the Loans, or of any Fees or other
amounts owing hereunder, under any of the other Credit Documents or in connection
herewith or therewith; or



(b) Representations. Any representation, warranty or statement made or deemed to be
made by the Borrower herein, in any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant hereto or thereto shall prove untrue in
any material respect on the date as of which it was deemed to have been made; or



(c) Covenants. The Borrower shall




(i) default in the due performance or observance of any term, covenant or
agreement contained in Sections 6.2, 6.8, 6.10, 6.11
or 7.1 through 7.3, inclusive, and 7.5, or




(ii) default in the due performance of any term, covenant or agreement
contained in Section 6.1 and such default shall continue unremedied for a
period of at least 5 days after the earlier of a Financial Officer of the Borrower
becoming aware of such default or notice thereof by the Administrative Agent.




(iii) default in the due performance or observance by it of any term, covenant
or agreement (other than those referred to in subsections (a), (b), (c)(i) or
(c)(ii) of this Section 8.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30 days after the earlier
of a responsible officer of the Borrower becoming aware of such default or notice
thereof by the Administrative Agent; or


 


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(d) Bankruptcy, etc. Any Bankruptcy Event shall occur with respect to the Borrower or
any of its Subsidiaries; or



(e) Other Indebtedness. With respect to any Indebtedness (other than Indebtedness
outstanding under this Credit Agreement or owing to the Borrower or any of its Subsidiaries) in
excess of $75,000,000 in the aggregate for the Borrower and its Subsidiaries taken as a whole, (i)
the Borrower or any of its Subsidiaries shall (A) default in any payment (beyond the applicable
grace or cure period with respect thereto, if any) with respect to any such Indebtedness, or (B)
default in the observance or performance relating to such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other event or condition
shall occur or condition exist, the effect of which default or other event or condition is to
cause, or permit, the holder or holders of such Indebtedness (or trustee or agent on behalf of such
holders) to cause, any such Indebtedness to become due, or to be required to be purchased or
redeemed, prior to the applicable maturity date, but after the expiration of all applicable grace
or cure periods; or (ii) any such Indebtedness shall be declared due and payable, or required to be
prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity
thereof and shall not be repaid when due; or



(f) Judgments. One or more judgments or decrees shall be entered against the Borrower
or any of its Subsidiaries involving a liability of $75,000,000 or more in the aggregate (to the
extent not paid or covered by insurance) and any such judgments or decrees shall not have been
vacated, discharged or stayed or bonded pending appeal within 30 days from the entry thereof, or if
longer, within the applicable appeal period (but in no event for more than 90 days from the entry
thereof); or



(g) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer
Plan which has resulted or could reasonably be expected to result in liability of the Borrower
under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $75,000,000, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with respect to its
withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount
in excess of $75,000,000; or



(h) Letters of Credit. The Borrower shall (i) default in the payment when due of any
reimbursement obligations arising from drawings under Letters of Credit (it being understood that
such payment may be accomplished pursuant to the application of proceeds from a new Base Rate Loan
made in accordance with the provisions of Section 2.4(c) or pursuant to the application of
funds held in a cash collateral account) or (ii) default, and such defaults shall continue for five
(5) or more Business Days, in the payment when due of any interest on any reimbursement obligations
arising from drawings under Letters of Credit; or



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


 


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8.2 Acceleration; Remedies.



Upon the occurrence of an Event of Default, and at any time thereafter unless and until such
Event of Default has been waived by the Required Lenders or cured to the satisfaction of the
Required Lenders
(pursuant to the voting procedures in Section 10.6), the Administrative Agent shall, upon
the request and direction of the Required Lenders, by written notice to the Borrower take any of
the following actions:




(a) Termination of Commitments. Declare the Commitments terminated whereupon the
Commitments shall be immediately terminated.



(b) Acceleration. Declare the unpaid principal of and any accrued interest in respect
of all Loans and any and all other indebtedness or obligations of any and every kind owing by the
Borrower to the Administrative Agent and/or any of the Lenders hereunder to be due whereupon the
same shall be immediately due and payable without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower.



(c) Enforcement of Rights. Enforce any and all rights and interests created and
existing under the Credit Documents and all rights of set-off.



(d) Cash Collateral. Require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then outstanding amount thereof); and



Notwithstanding the foregoing, if an Event of Default specified in Section 8.1(d)
shall occur, then the Commitments shall automatically terminate and all Loans, reimbursement
obligations arising from drawings under Letters of Credit, all accrued interest in respect thereof,
all accrued and unpaid Fees and other indebtedness or obligations owing to the Administrative Agent
and/or any of the Lenders hereunder in respect thereof automatically shall immediately become due
and payable without the giving of any notice or other action by the Administrative Agent or the
Lenders.



SECTION 9




AGENCY PROVISIONS



9.1 Appointment and Authority.



(a) Each Lender hereby designates and appoints Bank of America as administrative agent (in
such capacity as Administrative Agent hereunder, the “Administrative Agent”) of such Lender to act
as specified herein and the other Credit Documents, and each such Lender hereby authorizes the
Administrative Agent as the agent for such Lender, to take such action on its behalf under the
provisions of this Credit Agreement and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated by the terms hereof and of the other Credit
Documents, together with such other powers as are reasonably incidental thereto. Notwithstanding
any provision to the contrary elsewhere herein and in the other Credit Documents, the
Administrative Agent shall not have any duties or responsibilities, except those expressly set
forth herein and therein, or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read into this Credit
Agreement or any of the other Credit Documents, or shall otherwise exist against the Administrative
Agent. The provisions of this Section are solely for the benefit of the Administrative Agent and
the Lenders and the Borrower shall have no rights as a third party beneficiary of the provisions
hereof. In performing its functions and duties under this Credit Agreement and the other Credit
Documents, the Administrative Agent shall act solely as agent of the Lenders and does not assume
and shall not be deemed to have assumed any obligation or relationship of agency or trust with or
for the Borrower or any of its Affiliates.


 


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(b) Each L/C Issuer shall act on behalf of the Lenders with respect to any Letters of Credit
issued by it and the documents associated therewith until such time (and except for so long) as the
Administrative Agent may agree at the request of the Required Lenders to act for such L/C
Issuer with respect thereto; provided, however, that such L/C Issuer shall have all
of the benefits and immunities (i) provided to the Administrative Agent in this Section 9
with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters
of Credit issued by it or proposed to be issued by it and the application and agreements for
letters of credit pertaining to the Letters of Credit as fully as if the term “Administrative
Agent” as used in this Section 9 included such L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to such L/C Issuer.



9.2 Delegation of Duties.



The Administrative Agent may execute any of its respective duties hereunder or under the other
Credit Documents by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties; provided that the use of any
agents or attorneys-in-fact shall not relieve the Administrative Agent of its duties hereunder.



9.3 Exculpatory Provisions.



The Administrative Agent and its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall not be (a) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection herewith or in connection with any of the other Credit Documents
(except for its or such Person’s own gross negligence or willful misconduct), or (b) responsible in
any manner to any of the Lenders for any recitals, statements, representations or warranties made
by the Borrower contained herein or in any of the other Credit Documents or in any certificate,
report, document, financial statement or other written or oral statement referred to or provided
for in, or received by the Administrative Agent under or in connection herewith or in connection
with the other Credit Documents, or enforceability or sufficiency therefor of any of the other
Credit Documents, or for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be responsible to any Lender for the effectiveness,
genuineness, validity, enforceability, collectibility or sufficiency of this Credit Agreement, or
any of the other Credit Documents or for any representations, warranties, recitals or statements
made herein or therein or made by the Borrower in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any other documents in connection
herewith or therewith furnished or made by the Administrative Agent to the Lenders or by or on
behalf of the Borrower to the Administrative Agent or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the proceeds of the Loans or of the
existence or possible existence of any Default or Event of Default or to inspect the properties,
books or records of the Borrower or any of its Affiliates.



9.4 Reliance on Communications.



The Administrative Agent shall be entitled to rely, and shall be fully protected in relying,
upon any note, writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, facsimile, telex or teletype message, statement, order or other document or
conversation reasonably believed by it to be genuine and correct and to have been signed, sent or
made by the proper Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower, independent accountants and other experts selected by
the Administrative Agent with reasonable care). The Administrative Agent may deem and treat the
Lenders as the owner of their respective interests hereunder for all purposes unless a written
notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 10.3(b) hereof. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Credit Agreement or under any of the
other Credit Documents unless it shall first receive such advice or concurrence of the Required
Lenders as it deems appropriate or it


 


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shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting,
hereunder or under any of the other Credit Documents in accordance with a request of the Required
Lenders (or to the extent specifically provided in Section 10.6, all the Lenders) and such
request and any action taken or failure to act pursuant thereto shall be binding upon all the
Lenders (including their successors and assigns).




9.5 Notice of Default.



The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the Administrative Agent has received notice from
a Lender or the Borrower referring to the Credit Document, describing such Default or Event of
Default and stating that such notice is a “notice of default.” In the event that the Administrative
Agent receives such a notice, the Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall take such action with respect to such Default or Event of
Default as shall be reasonably directed by the Required Lenders.



9.6 Non-Reliance on Administrative Agent and Other Lenders.



Each Lender expressly acknowledges that each of the Administrative Agent and its officers,
directors, employees, agents, attorneys-in-fact or affiliates has not made any representations or
warranties to it and that no act by the Administrative Agent or any affiliate thereof hereinafter
taken, including any review of the affairs of the Borrower or any of its Affiliates, shall be
deemed to constitute any representation or warranty by the Administrative Agent to any Lender.
Each Lender represents to the Administrative Agent 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 appraisal of and investigation into the business, assets,
operations, property, financial and other conditions, prospects and creditworthiness of the
Borrower or its Affiliates and made its own decision to make its Loans hereunder and enter into
this Credit Agreement. Each Lender also represents 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 deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Credit Agreement, and to make
such investigation as it deems necessary to inform itself as to the business, assets, operations,
property, financial and other conditions, prospects and creditworthiness of the Borrower and its
Affiliates. Except for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information concerning the
business, operations, assets, property, financial or other conditions, prospects or
creditworthiness of the Borrower or any of its Affiliates which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.



9.7 Indemnification.



The Lenders agree to indemnify the Administrative Agent in its capacity as such (to the extent
not reimbursed by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Commitments (or if the Commitments have expired or been
terminated, in accordance with the respective principal amounts of outstanding Loans and
Participation Interests of the Lenders), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time (including without limitation at any time following the final
payment of all of the obligations of the Borrower hereunder and under the other Credit Documents)
be imposed on, incurred by or asserted against the Administrative Agent in its capacity as such in
any way relating to or arising out of this Credit Agreement or the other Credit Documents or any
documents contemplated by or referred to herein or therein or the


 


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transactions contemplated hereby
or thereby or any action taken or omitted by the Administrative Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the gross negligence or willful misconduct of the
Administrative Agent. If any indemnity furnished to the Administrative Agent for any purpose
shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished. The agreements in this Section
shall survive the repayment of the Loans and other obligations under the Credit Documents and the
termination of the Commitments hereunder.




9.8 Administrative Agent in its Individual Capacity.



Bank of America, each other L/C Issuer and their respective Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting or other business
with each of the Borrower and its respective Affiliates as though Bank of America were not the
Administrative Agent or such L/C Issuer were not an L/C Issuer hereunder, as applicable, and
without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such
activities, Bank of America, each L/C Issuer and their respective Affiliates may receive
information regarding the Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and acknowledge that
neither the Administrative Agent nor such L/C Issuer shall be under any obligation to provide such
information to them. With respect to its Loans or any Letter of Credit issued by it, Bank of
America or such other L/C Issuer, as applicable, shall have the same rights and powers under the
Credit Agreement as any other Lender and may exercise such rights and powers as though it were not
the Administrative Agent or an L/C Issuer, and the terms “Lender” and “Lenders” include Bank of
America or such other L/C Issuer, as applicable, in its individual capacity.



9.9 Successor Administrative Agent.



The Administrative Agent may at any time resign upon 20 days’ written notice to the Lenders,
each L/C Issuer and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States; provided that, so long as no Default or Event of
Default has occurred and is continuing, such successor Administrative Agent shall be reasonably
acceptable to the Borrower. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications
set forth above; provided that if the Administrative Agent shall notify the Borrower and
the Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder and under the other Credit
Documents, (2) all payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender and the applicable L/C
Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent
as provided for above in this Section 9 and (3) the retiring Administrative Agent will
provide to the Borrower and the Lenders reasonable access to the Register and/or copies of each
Lender’s Administrative Questionnaire. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
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(if
not already discharged therefrom as provided above in this Section 9). The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the retiring Administrative
Agent’s resignation hereunder and under the other Credit Documents, the provisions of this Article
and Section 10.5 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any actions taken or
omitted to be taken by any of them while the retiring Administrative Agent was acting as
Administrative Agent.




Any resignation by Bank of America as Administrative Agent pursuant to this Section 9.9
shall also constitute its resignation as L/C Issuer and Swingline Lender. Upon the acceptance of a
successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer and
Swingline Lender, (b) the retiring L/C Issuer and Swingline Lender shall be discharged from all of
their respective duties and obligations hereunder or under the other Credit Documents, and (c) the
successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if
any, outstanding at the time of such succession or make other arrangements satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect
to such Letters of Credit.




9.10 Syndication Agent, Documentation Agents and Joint Book Runners.



The Syndication Agent, Documentation Agents and Joint Book Runners, each in its capacity as
such, shall have no rights, powers, duties or obligations under this Credit Agreement or any of the
other Credit Documents.



SECTION 10




MISCELLANEOUS



10.1 Notices.



(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing, and except as otherwise
expressly provided herein, all notices and other communications shall have been duly given and
shall be effective (i) when delivered, (ii) when transmitted and received (by confirmation of
receipt) via telecopy (or other facsimile device) to the number set out below, (iii) the day on
which the same has been delivered by a reputable national overnight air courier service to the
addressee, or (iv) the day on which the same is delivered to the addressee or delivery refused by
the addressee by certified or registered mail, postage prepaid, in each case to the respective
parties at the address, in the case of the Borrower, the Administrative Agent, the L/C Issuer or
the Swingline Lender, to the address, telecopier number, electronic mail address or telephone
number specified for such Person on Schedule 10.1, and, in the case of the Lenders, to the
address, telecopier number, electronic mail address specified in its Administrative Questionnaire,
or at such other address as such party may specify by written notice to the other parties hereto.



(b) Electronic Communications. Notices and other communications to the Lenders and
the L/C Issuers hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the L/C
Issuer pursuant to Section 2 if such Lender or the L/C Issuer, as applicable, has notified
the Administrative Agent that it is incapable of receiving notices under such Section by electronic
communication. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other communications to it
hereunder by electronic communications pursuant to procedures approved by it, provided that
approval of such procedures may be limited to particular notices or communications.


 


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



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



(d) Change of Address, Etc. Each of the Borrower, the Administrative Agent, each L/C
Issuer and the Swingline Lender may change its address, telecopier or telephone number for notices
and other communications hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the Borrower, the Administrative Agent, the L/C Issuers and the Swingline Lender. In
addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that
the Administrative Agent has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other communications may be sent
and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to
cause at least one individual at or on behalf of such Public Lender to at all times have selected
the “Private Side Information” or similar designation on the content declaration screen of the
Platform in order to enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable law, including Securities Laws, to review Borrower
Materials that are not made available through the “Public Side Information”
portion of the Platform and that may contain material non-public information with respect to
the Borrowers or their securities for purposes of Securities Laws.


 


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(e) Reliance by Administrative Agent, L/C Issuers and Lenders. The Administrative
Agent and the Lenders shall be entitled to rely and act upon, in good faith, any notices (including
telephonic Committed Loan Notices and Swingline Loan Notices) purportedly given by or on behalf of
the Borrower and reasonably understood by the Administrative Agent and/or the Lenders, as
applicable, to be authentic even if (i) such notices were not made in a manner specified herein,
were incomplete or were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The
Borrower shall indemnify the Administrative Agent and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice
purportedly given by or on behalf of the Borrower (but excluding any such losses, costs, expenses
and liabilities that (x) are determined by a court of competent jurisdiction by final and
nonappealable judgment to have resulted from the gross negligence or willful misconduct of the
Administrative Agent or such Related Party or (y) result from a claim brought by the Borrower
against the Administrative Agent or such Related Party for breach in bad faith of such party’s
obligations hereunder or under any other Credit Document, if the Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction). All telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto
hereby consents to such recording.



10.2 Right of Set-Off.



In addition to any rights now or hereafter granted under applicable law, and not by way of
limitation of any such rights, upon the occurrence of an Event of Default, each Lender is
authorized at any time and from time to time, without presentment, demand, protest or other notice
of any kind (all of which rights being hereby expressly waived), to set-off and to appropriate and
apply any and all deposits (general or special) and any other indebtedness at any time held or
owing by such Lender (including, without limitation, branches, agencies or Affiliates of such
Lender wherever located) to or for the credit or the account of the Borrower against obligations
and liabilities of such Person to such Lender hereunder, under the Notes or the other Credit
Documents, irrespective of whether such Lender shall have made any demand hereunder and although
such obligations, liabilities or claims, or any of them, may be contingent or unmatured, and any
such set-off shall be deemed to have been made immediately upon the occurrence of an Event of
Default even though such charge is made or entered on the books of such Lender subsequent thereto;
provided, that, in the event that any Defaulting Lender shall exercise any such
right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative
Agent for further application in accordance with the provisions of Section 3.19 and,
pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed
held in trust for the benefit of the Administrative Agent and the Lenders and (y) the Defaulting
Lender shall provide promptly to the Administrative Agent a statement describing in reasonable
detail the obligations owing to such Defaulting Lender as to which it exercised such right of
setoff. Any Person purchasing a participation in the Loans and Commitments hereunder pursuant to
Section 3.13 or Section 10.3(d) may exercise all rights of set-off with respect to
its participation interest as fully as if such Person were a Lender hereunder.



 


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10.3 Successors and Assigns.



(a) Successors and Assigns Generally. The provisions of this Credit Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Administrative Agent and
each Lender other than in connection with a Reorganization permitted by Section 7.3 hereof
and no Lender may assign or

otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of Section 10.3(b), (ii) by way of participation in
accordance with the provisions of Section 10.3(d), (iii) to an SPV in accordance with the
provisions of Section 10.3(g), or (iv) by way of a pledge of its Loans hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank
(and any other attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Credit Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the L/C Issuer and
the Lenders) any legal or equitable right, remedy or claim under or by reason of this Credit
Agreement.




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



(i) Minimum Amounts.




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




(B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment, determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the Administrative Agent or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $5,000,000, in the case of any assignment in respect of the revolving credit
facility hereunder, and in integral multiples of $1,000,000 in excess thereof unless
each of the Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent not be
unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met;




(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and obligations
under this Credit Agreement with respect to the Loans or the Commitment assigned, except
that this clause (ii) shall not apply to the Swingline Lender’s rights and obligations in
respect of Swingline Loans;




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




(A) the consent of the Borrower (such consent not to be unreasonably withheld
or delayed) shall be required unless (1) an Event of Default has occurred and is
continuing at
the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a
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(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect of
any Commitment if such assignment is to a Person that is not a Lender, an Affiliate
of such Lender or an Approved Fund; and




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




(D) the consent of the Swingline Lender (such consent not to be unreasonably
withheld or delayed) shall be required for any assignment in respect of the
revolving credit facility hereunder.




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




(v) No Assignment to Certain Persons. No such assignment shall be made (A) to
the Borrower or any of the Borrower’s Affiliates or Subsidiaries, or (B) to any Defaulting
Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder,
would constitute any of the foregoing Persons described in this clause (B) or (C) to a
natural person.




(vi) Certain Additional Payments. In connection with any assignment of rights
and obligations of any Defaulting Lender hereunder, no such assignment shall be effective
unless and until, in addition to the other conditions thereto set forth herein, the parties
to the assignment shall make such additional payments to the Administrative Agent in an
aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright
payment, purchases by the assignee of participations or subparticipations, or other
compensating actions, including funding, with the consent of the Borrower and the
Administrative Agent, the applicable pro rata share of Loans previously requested but not
funded by the Defaulting Lender, to each of which the applicable assignee and assignor
hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then
owed by such Defaulting Lender to the Administrative Agent or any Lender hereunder (and
interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share
of all Loans and participations in Letters of Credit and Swingline Loans in accordance with
its Commitment Percentage. Notwithstanding the foregoing, in the event that any assignment
of rights and obligations of any Defaulting Lender hereunder shall become effective under
applicable law without compliance with the provisions of this paragraph, then the assignee
of such interest shall be deemed to be a Defaulting Lender for all purposes of this Credit
Agreement until such compliance occurs.



Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c)
of this Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party to this Credit Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Credit 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 Credit Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Credit Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 3.9, 3.10 and 3.11 with respect to facts and
circumstances occurring prior to the effective date of such assignment). Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment
or transfer by a Lender of rights or obligations under this Credit Agreement that does not comply
with this subsection shall be treated for purposes of this Credit Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with Section
10.3(d).




 


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(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and addresses of the
Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”). The
Administrative Agent will make reasonable efforts to maintain the accuracy of the Register and to
promptly update the Register from time to time, as necessary (including with regard to assignments
of Loans and transfers of Notes). The entries in the Register shall be conclusive, absent
convincing evidence to the contrary, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Credit Agreement, notwithstanding notice to the contrary. In
addition, the Administrative Agent shall maintain on the Register information regarding the
designation, and revocation of designation, of any Lender as a Defaulting Lender. The Register
shall be available for inspection by the Borrower and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.



(d) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person, a Defaulting Lender or the Borrower or any of the Borrower’s Affiliates or Subsidiaries)
(each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations
under this Credit Agreement (including all or a portion of its Commitment and/or the Loans
(including such Lender’s participations in L/C Obligations and/or Swingline Loans) owing to it);
provided that (i) such Lender’s obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and
the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Credit 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 Credit Agreement and to approve any amendment, modification or waiver of any
provision of this Credit Agreement; provided that such agreement or instrument may provide
that such Lender will not, without the consent of the Participant, agree to any amendment, waiver
or other modification described in the first proviso to Section 10.6 that affects such
Participant. Subject to subsection (e) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Section 3.9, 3.10 and 3.11 to the same
extent as if it were a Lender and had acquired its interest by assignment pursuant to Section
10.3(b). To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.2 as though it were a Lender, provided such Participant agrees to be
subject to Section 3.13 as though it were a Lender.



(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.9, 3.10 and 3.11 than the
applicable Lender would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender
shall not be entitled to the benefits of Section 3.10 unless the Borrower is notified of
the participation sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 3.10 as though it were a Lender.


 


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



(g) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower (an “SPV”) the option to provide all or any part of any Loan that such
Granting Lender would otherwise be obligated to make pursuant to this Credit Agreement;
provided that (i) nothing herein shall constitute a commitment by any SPV to fund any Loan,
and (ii) if an SPV elects not to exercise such option or otherwise fails to make all or any part of
such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof
or, if it fails to do so, to make such payment to the Administrative Agent as is required under
Section 3.14. Each party hereto hereby agrees that (i) neither the grant to any SPV nor
the exercise by any SPV of such option shall increase the costs or expenses or otherwise increase
or change the obligations of the Borrower under this Credit Agreement (including its obligations
under Section 3.4), (ii) no SPV shall be liable for any indemnity or similar payment
obligation under this Credit Agreement for which a Lender would be liable, and (iii) the Granting
Lender shall for all purposes, including the approval of any amendment, waiver or other
modification of any provision of any Credit Document, remain the lender of record hereunder. The
making of a Loan by an SPV hereunder shall utilize the Commitment of the Granting Lender to the
same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the
foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this
Credit Agreement) that, prior to the date that is one year and one day after the payment in full of
all outstanding commercial paper or other senior debt of any SPV, it will not institute against, or
join any other Person in instituting against, such SPV any bankruptcy, reorganization, arrangement,
insolvency, or liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPV may (i) with notice to, but
without prior consent of the Borrower and the Administrative Agent and with the payment of a
processing fee in the amount of $3,500 (unless waived by the Administrative Agent in its sole
discretion), assign all or any portion of its right to receive payment with respect to any Loan to
the Granting Lender and (ii) disclose on a confidential basis any non-public information relating
to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or
Guarantee or credit or liquidity enhancement to such SPV.



(h) Resignation as L/C Issuer or Swingline Lender after Assignment. Notwithstanding
anything to the contrary contained herein, if at any time Bank of America assigns all of its
Revolving Credit Commitments and Revolving Credit Loans pursuant to Section 10.3(b), Bank
of America may, (i) upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer
and/or (ii) upon 30 days’ notice to the Borrower, resign as Swingline Lender. In the event of any
such resignation as L/C Issuer or Swingline Lender, the Borrower shall be entitled to appoint from
among the Lenders a successor L/C Issuer or Swingline Lender hereunder; provided, however, that no
failure by the Borrower to appoint any such successor shall affect the resignation of Bank of
America as L/C Issuer or Swingline Lender, as the case may be. If Bank of America resigns as L/C
Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder
with respect to all Letters of Credit outstanding as of the effective date of its resignation as
L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders
to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section
2.03(c)). If Bank of America resigns as Swingline Lender, it shall retain all the rights of
the Swingline Lender provided for hereunder with respect to Swingline Loans made by it and
outstanding as of the


 


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effective
date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swingline Loans pursuant to Section 2.04(c). Upon the
appointment of a successor L/C Issuer and/or Swingline Lender, (a) such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer
or Swingline Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of
credit in substitution for the Letters of Credit, if any, outstanding at the time of such
succession or make other arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.




10.4 No Waiver; Remedies Cumulative.



No failure or delay on the part of the Administrative Agent or any Lender in exercising any
right, power or privilege hereunder or under any other Credit Document and no course of dealing
between the Administrative Agent or any Lender and the Borrower shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise thereof or the exercise of any other
right, power or privilege hereunder or thereunder. The rights and remedies provided herein are
cumulative and not exclusive of any rights or remedies which the Administrative Agent or any Lender
would otherwise have. No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Administrative Agent or the Lenders to any other or further action in
any circumstances without notice or demand.



Notwithstanding anything to the contrary contained herein or in any other Credit Document, the
authority to enforce rights and remedies hereunder and under the other Credit Documents against the
Borrower shall be vested exclusively in, and all actions and proceedings at law in connection with
such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 8.2 for the benefit of all the Lenders and the L/C Issuer;
provided, however, that the foregoing shall not prohibit (a) the Administrative
Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely
in its capacity as Administrative Agent) hereunder and under the other Credit Documents, (b) the
L/C Issuer or the Swingline Lender from exercising the rights and remedies that inure to its
benefit (solely in its capacity as L/C Issuer or Swingline Lender, as the case may be) hereunder
and under the other Credit Documents, (c) any Lender from exercising setoff rights in accordance
with Section 10.2 (subject to the terms of Section 3.14), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a
proceeding relative to the Borrower under any debtor relief law; and provided,
further, that if at any time there is no Person acting as Administrative Agent hereunder
and under the other Credit Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 8.2 and (ii) in addition to the
matters set forth in clauses (b), (c) and (d) of the preceding proviso and subject to Section
3.14, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies
available to it and as authorized by the Required Lenders.




10.5 Payment of Expenses, etc.



The Borrower agrees to: (a) pay all reasonable out-of-pocket costs and expenses (i) of the
Administrative Agent and the Arrangers (and their respective Affiliates) in connection with the
syndication of the credit facilities provided for herein, the negotiation, preparation, execution
and delivery and administration of this Credit Agreement and the other Credit Documents and the
documents and instruments referred to therein (including, subject to any agreed upon limitations,
the reasonable fees and expenses of Moore & Van Allen, PLLC, special counsel to the Administrative
Agent and non-duplicative allocated costs of internal counsel) and any amendment, waiver or consent
relating hereto and thereto including, but not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or restructure relating to the performance
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Agreement and (ii) of the Administrative Agent, the L/C Issuers and the Lenders (and their
respective Affiliates) in connection with enforcement of the Credit Documents and the documents and
instruments referred to therein (including, without limitation, in connection with any such
enforcement, the reasonable fees and disbursements of counsel (including non-duplicative allocated
costs of internal counsel) for the Administrative Agent and each of the Lenders); (b) pay and hold
each of the Lenders harmless from and against any and all future stamp and other similar taxes with
respect to the foregoing matters and save each of the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay or omission (other than to the extent
attributable to such Lender) to pay such taxes; and (c) indemnify the Administrative Agent, each
Lender, the Arrangers, the Documentation Agents and the Joint Book Runners and their respective
officers, directors, employees, representatives, agents and Affiliates (each an
“Indemnitee”) from and hold each of them harmless against any and all losses, liabilities,
claims, damages or expenses incurred by any of them as a result of, or arising out of, or in any
way related to, or by reason of (i) any investigation, litigation or other proceeding (whether or
not the Administrative Agent or any Lender is a party thereto, but excluding any investigation
initiated by the Person seeking indemnification hereunder) related to the entering into and/or
performance of any Credit Document or the use of proceeds of any Loans (including other extensions
of credit) hereunder or the consummation of any other transactions contemplated in any Credit
Document, including, without limitation, the reasonable fees and disbursements of counsel
(including non-duplicative allocated costs of internal counsel) incurred in connection with any
such investigation, litigation or other proceeding or (ii) the presence or Release of any Materials
of Environmental Concern at, under or from any Property owned, operated or leased by the Borrower
or any of its Subsidiaries, or the failure by the Borrower or any of its Subsidiaries to comply
with any Environmental Law (but excluding, in the case of either of clause (i) or (ii) above, any
such losses, liabilities, claims, damages or expenses to the extent that they (x) are determined by
a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the
Borrower against an Indemnitee for material breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Credit Document, if the Borrower has obtained a final and
nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction). In no event shall the Administrative Agent or any Lender be liable for any damages
arising from the use by others of any information or other materials obtained through IntraLinks or
other similar information transmission systems in connection with this Credit Agreement, other than
to the extent of direct or actual damages resulting from the gross negligence or willful misconduct
of such party or material breach in bad faith by such party of its express contractual obligations
hereunder with respect to such information or materials as determined, in each case, by a final and
nonappealable judgment of a court of competent jurisdiction, nor shall the Administrative Agent or
any Lender have any liability for any special, indirect, consequential or punitive damages relating
to this Credit Agreement or any other Credit Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date).




10.6 Amendments, Waivers and Consents.



Neither this Credit Agreement nor any other Credit Document nor any of the terms hereof or
thereof may be amended, changed, waived, discharged or terminated unless such amendment, change,
waiver, discharge or termination is in writing entered into by, or approved in writing by, the
Required Lenders and the Borrower, provided, however, that:



(a) no such amendment, change, waiver, discharge or termination shall, without the consent of
each Lender directly affected thereby (other than Defaulting Lenders), (i) reduce the rate or
extend the time of payment of interest (other than as a result of (x) waiving the applicability of
any post-default increase in interest rates or (y) an amendment approved by the Required Lenders as
set forth in the definition of “Applicable Margin” following the withdrawal by S&P, Moody’s and
Fitch of their ratings on the Borrower’s senior unsecured (non-credit enhanced) long term debt) on
any Loan or fees hereunder, (ii) reduce the rate or

extend the time of payment of any fees owing hereunder, (iii) except as otherwise permitted under
Section 3.4(d), extend (A) the Commitment of any Lender, or (B) the final maturity of any
Loan, or any portion thereof, or (iv) reduce the principal amount on any Loan or, except as
otherwise permitted under Section 3.4(d), extend the time of payment thereof;





 


76









 





(b) no such amendment, change, waiver, discharge or termination shall, without the consent of
each Lender directly affected thereby (other than Defaulting Lenders), (i) except as otherwise
permitted under Section 3.4(b), increase the Commitment of any Lender over the amount
thereof in effect (it being understood and agreed that a waiver of any Default or Event of Default
shall not constitute a change in the terms of any Commitment of any Lender), (ii) amend, modify or
waive any provision of this Section 10.6 or Section 3.14 or Section
3.15(b), (iii) reduce or increase any percentage specified in, or otherwise modify, the
definition of “Required Lenders,” or (iv) consent to the assignment or transfer by the Borrower of
any of its rights and obligations under (or in respect of) the Credit Documents to which it is a
party;



(c) no provision of (i) Section 2.3 may be amended without the consent of the
Swingline Lender; (ii) Section 2.4 may be amended without the consent of each L/C Issuer;
and (iii) Section 9 may be amended without the consent of the Administrative Agent, such
consent in each case not to be unreasonably withheld; and



(d) designation of the Master Account or of any Financial Officer may not be made without the
written consent of at least two Financial Officers of the Borrower.



Notwithstanding anything to the contrary herein, (i) the Administrative Agent’s Fee Letter may
be amended, or rights or privileges thereunder waived, in a writing executed only by the parties
thereto, (ii) no Defaulting Lender shall have any right to approve or disapprove any amendment,
waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the
consent of all Lenders or each affected Lender may be effected with the consent of the applicable
Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may
not be increased or extended without the consent of such Defaulting Lender and (y) any waiver,
amendment or modification requiring the consent of all Lenders or each affected Lender that by its
terms affects any Defaulting Lender more adversely than other affected Lenders shall require the
consent of such Defaulting Lender.



10.7 Counterparts.



This Credit Agreement may be executed in any number of counterparts, each of which when so
executed and delivered shall be an original, but all of which shall constitute one and the same
instrument. It shall not be necessary in making proof of this Credit Agreement to produce or
account for more than one such counterpart.



10.8 Headings.



The headings of the sections and subsections hereof are provided for convenience only and
shall not in any way affect the meaning or construction of any provision of this Credit Agreement.



10.9 Survival.



All indemnities set forth herein, including, without limitation, in Section 3.9,
3.11, 9.7 or 10.5 shall survive the execution and delivery of this Credit
Agreement, the making of the Loans, the repayment of the Loans and other obligations under the
Credit Documents and the termination of the Commitments hereunder, and all representations and
warranties made by the Borrower herein shall survive delivery of the Notes and the making of the
Loans hereunder.


 


77









 





10.10 Governing Law; Submission to Jurisdiction; Venue.



(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. Any legal action or proceeding with respect to this Credit
Agreement or any other Credit Document may be brought in the courts of the State of New York in New
York County, or of the United States for the Southern District of New York, and, by execution and
delivery of this Credit Agreement, the Borrower hereby irrevocably accepts for itself and in
respect of its property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. The Borrower further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at the address set out for notices pursuant to
Section 10.1, such service to become effective three (3) days after such mailing. Nothing
herein shall affect the right of the Administrative Agent to serve process in any other manner
permitted by law or to commence legal proceedings or to otherwise proceed against the Borrower in
any other jurisdiction.



(b) The Borrower hereby irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection
with this Credit Agreement or any other Credit Document brought in the courts referred to in
subsection (a) hereof and hereby further irrevocably waives and agrees not to plead or claim in any
such court that any such action or proceeding brought in any such court has been brought in an
inconvenient forum.



(c) TO THE EXTENT PERMITTED BY LAW, EACH OF THE ADMINISTRATIVE AGENT, THE LENDERS AND THE
BORROWER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY.



10.11 Severability.



If any provision of any of the Credit Documents is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable and the remaining provisions shall remain in
full force and effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions. Without limiting the foregoing provisions of this Section 10.11,
if and to the extent that the enforceability of any provisions in this Credit Agreement relating to
Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the
Administrative Agent, the L/C Issuers or the Swingline Lender, as applicable, then such provisions
shall be deemed to be in effect only to the extent not so limited.



10.12 Entirety.



This Credit Agreement together with the other Credit Documents represent the entire agreement
of the parties hereto and thereto, and supersede all prior agreements and understandings, oral or
written, if any, including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.


 


78









 





10.13 Binding Effect; Termination.



(a) This Credit Agreement shall become effective at such time on or after the Closing Date
when it shall have been executed by the Borrower and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or otherwise) which, when taken
together, bear the


signatures of each Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and each Lender and their respective
successors and assigns. The parties hereto who are also parties to the Existing Credit Agreement
each hereby agree that, at such time as this Credit Agreement shall have become effective pursuant
to the terms of Article IV, (a) the Existing Credit Agreement automatically shall be deemed
amended, superseded and restated in its entirety by this Credit Agreement and (b) the Commitments
under the Existing Credit Agreement and as defined therein automatically shall be replaced with the
Commitments hereunder. This Credit Agreement is not a novation of the Existing Credit Agreement,
and, for the avoidance of doubt, the commitment of any lender under the Existing Credit Agreement
that is not a Lender under this Credit Agreement shall be deemed to be terminated concurrently with
the effectiveness of this Credit Agreement pursuant to the terms of Article IV.




(b) The term of this Credit Agreement shall be until no Loans or any other amounts payable
hereunder or under any of the other Credit Documents shall remain outstanding and until all of the
Commitments hereunder shall have expired or been terminated.



10.14 Confidentiality.



The Administrative Agent and the Lenders agree to keep confidential (and to cause their
respective affiliates, officers, directors, employees, agents and representatives to keep
confidential) all information, materials and documents furnished to the Administrative Agent or any
such Lender by or on behalf of the Borrower (whether before or after the Closing Date) which
relates to the Borrower or any of its Subsidiaries (the “Information”). Notwithstanding
the foregoing, the Administrative Agent and each Lender shall be permitted to disclose Information
(i) to its affiliates, officers, directors, employees, agents and representatives in connection
with its participation in any of the transactions evidenced by this Credit Agreement or any other
Credit Documents or the administration of this Credit Agreement or any other Credit Documents; (ii)
to the extent required by applicable laws and regulations or by any subpoena or similar legal
process, or requested by any Governmental Authority; (iii) to the extent such Information (A)
becomes publicly available other than as a result of a breach of this Credit Agreement or any
agreement entered into pursuant to clause (iv) below, (B) becomes available to the Administrative
Agent or such Lender on a non-confidential basis from a source other than the Borrower or (C) was
available to the Administrative Agent or such Lender on a non-confidential basis prior to its
disclosure to the Administrative Agent or such Lender by the Borrower; (iv) to any actual or
prospective assignee, participant or counterparty (or its advisors) to any swap, hedge,
securitization or derivative transaction relating to any of its rights or obligations under this
Credit Agreement or relating to the Borrower and its obligations so long as such actual or
prospective assignee, participant or counterparty (or its advisor) first specifically agrees in a
writing furnished to and for the benefit of the Borrower to be bound by that terms of this
Section 10.14; (v) to the extent required in connection with the exercise of remedies under
this Credit Agreement or any other Credit Documents; or (vi) to the extent that the Borrower shall
have consented in writing to such disclosure. Nothing set forth in this Section 10.14
shall obligate the Administrative Agent or any Lender to return any materials furnished by the
Borrower.



10.15 Source of Funds.



Each of the Lenders hereby represents and warrants to the Borrower that at least one of the
following statements is an accurate representation as to the source of funds used by such Lender in
connection with the financing hereunder:



(a) no part of such funds constitutes assets allocated to any separate account (as such term
is defined in Section 3(17) of ERISA) maintained by such Lender in which any employee benefit plan
(or its related trust) has any interest;


 


79









 





(b) the source is either (i) an insurance company pooled separate account, within the meaning
of Prohibited Transaction Class Exemption (“PTE”) 90-1 (issued by the United States Department of
Labor January 29, 1990), or (ii) a bank collective investment fund, within the meaning of PTE 91-38
(issued June 12, 1991 and amended by PTE 2002-13 (issued March 1, 2002)), the requirements of
Section III(b) of PTE 90-1 or Section III(b) of PTE 91-38 are and will continue to be satisfied,
and no employee benefit plan or group of plans maintained by the same employer or employee
organization beneficially owns more than 10% of all assets allocated to such pooled separate
account or collective investment fund;



(c) the source is an “insurance company general account” within the meaning of PTE 95-60
(issued July 12, 1995 and amended by PTE 2002-13 (issued March 1, 2002)) and there is no employee
benefit plan, treating as a single plan all plans maintained by the same employer or employee
organization, with respect to which the amount of the general account reserves and liabilities for
all contracts held by or on behalf of such plan, exceeds ten percent (10%) of the total reserves
and liabilities of such general account (exclusive of separate account liabilities) plus surplus,
as set forth in the NAIC Annual Statement for such Lender most recently filed with such Lender’s
state of domicile;



(d) the source constitutes assets of an “investment fund” (within the meaning of Part V of PTE
84-14 issued March 13, 1984 and amended by PTE 2002-13 (issued March 1, 2002) (the “QPAM
Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of
Part V of the QPAM Exemption), and the applicable conditions of the QPAM Exemption are satisfied;
or



(e) such funds constitute assets of one or more employee benefit plans which such Lender has
identified in writing to the Borrower.



As used in this Section 10.15, the term “employee benefit plan” shall have the meaning
assigned to such term in Section 3(3) of ERISA.




10.16 Conflict.



To the extent that there is a conflict or inconsistency between any provision hereof, on the
one hand, and any provision of any Credit Document, on the other hand, this Credit Agreement shall
control.



10.17 USA PATRIOT Act Notice.



Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”), it is required to obtain, verify and record information that identifies
the Borrower, which information includes the name and address of the Borrower and other information
that will allow such Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act. The Borrower shall, promptly following a request by the Administrative
Agent or any Lender, provide all documentation and other information that the Administrative Agent
or such Lender reasonably requests in order to comply with its ongoing obligations under applicable
“know your customer” and anti-money laundering rules and regulations, including the Act.


 


80









 





10.18 No Advisory or Fiduciary Responsibility.



In connection with all aspects of each transaction contemplated hereby, the Borrower
acknowledges and agrees that: (i) the credit facility provided for hereunder and any related
arranging or other services in connection therewith (including in connection with any amendment,
waiver or other modification hereof or of any other Credit Document) are an arm’s-length commercial
transaction between the Borrower and its


Affiliates, on the one hand, and the Administrative Agent,
the Arrangers, Documentation Agents and Joint
Book Runners, on the other hand, and the Borrower is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated hereby and
by the other Credit Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction, the Administrative
Agent, each Arranger, each Documentation Agent and each Joint Book Runner is and has been acting
solely as a principal and is not the financial advisor, agent or fiduciary, for the Borrower or any
of its Affiliates, stockholders, creditors or employees or any other Person; (iii) none of the
Administrative Agent, either Arranger, any Documentation Agent nor any Joint Book Runner has
assumed or will assume an advisory, agency or fiduciary responsibility in favor of the Borrower
with respect to any of the transactions contemplated hereby or the process leading thereto,
including with respect to any amendment, waiver or other modification hereof or of any other Credit
Document (irrespective of whether the Administrative Agent, either Arranger, any Documentation
Agent nor any Joint Book Runner has advised or is currently advising the Borrower or any of its
Affiliates on other matters) and neither the Administrative Agent, either Arranger, any
Documentation Agent or any Joint Book Runner has any obligation to the Borrower or any of its
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Credit Documents; (iv) the Administrative Agent, the Arrangers,
the Documentation Agents and the Joint Book Runners and their respective Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those of the Borrower and
its Affiliates, and neither the Administrative Agent, either Arranger, any Documentation Agent nor
any Joint Book Runner has any obligation to disclose any of such interests by virtue of any
advisory, agency or fiduciary relationship arising out of the transactions contemplated hereby; and
(v) the Administrative Agent, the Arrangers, the Documentation Agents and the Joint Book Runners
have not provided and will not provide any legal, accounting, regulatory or tax advice with respect
to any of the transactions contemplated hereby (including any amendment, waiver or other
modification hereof or of any other Credit Document) and the Borrower has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate. The Borrower
hereby waives and releases, to the fullest extent permitted by law, any claims that it may have
against the Administrative Agent, the Arrangers, the Documentation Agents and the Joint Book
Runners with respect to any breach or alleged breach of agency or fiduciary duty arising out of the
transactions contemplated hereby.




[Signature Pages to Follow]



 


81









 








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



	 	 	 

	BORROWER:

	 	AUTOZONE, INC.






	 	 	 	 	 
	 	 	 
	 	By: 	                              /s/ William T. Giles
 	 
	 	 	Name: William T. Giles 	 
	 	 	Title: Executive Vice President and 

          Chief Financial Officer 	 
	 	 	 
	 	By:	                              /s/ Brian L. Campbell
 	 
	 	 	Name: Brian L. Campbell 	 
	 	 	Title: Vice President and Treasurer 	 
	 



 


 









 





	 	 	 	 	 

	ADMINISTRATIVE AGENT:	 	BANK OF AMERICA, N.A.,
	 	 	as Administrative Agent
	 
	 	 	 	 
	 

	 	By: 	 	/s/ Thomas Kainamura
	 

	 	 	 	 
	 

	 	 
	 	Name: Thomas Kainamura
	 

	 	 
	 	Title: Vice President





 


 









 






	 	 	 	 	 

	LENDERS:	 	BANK OF AMERICA, N.A.,
	 	 	as a Lender
	 
	 	 	 	 
	 

	 	By: 
	 	/s/ Thomas Kainamura
	 

	 	 	 	 
	 

	 	
	 	Name: Thomas Kainamura
	 

	 	 
	 	Title: Vice President






 


 











 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A.,

as a Lender

 	 
	 	By: 	/s/ Barry Bergman
 	 
	 	 	Name: Barry Bergman 	 
	 	 	Title: Managing Director 	 
	 



 


 









 





	 	 	 	 	 
	 	SUNTRUST BANK,

as a Lender

 	 
	 	By: 	/s/ J. Matthew Rowand
 	 
	 	 	Name: J. Matthew Rowand 	 
	 	 	Title: Vice President 	 
	 


 


 









 






	 	 	 	 	 
	 	US BANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By: 	/s/ Gregory Campbell 	 
	 	 	Name: Gregory Campbell 	 
	 	 	Title: Director 	 
	 



 


 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A.,

as a Lender

 	 
	 	By: 	/s/ Frances W. Josephic
 	 
	 	 	Name: Frances W. Josephic 	 
	 	 	Title: Vice President 	 
	 


 


 









 






	 	 	 	 	 
	 	BARCLAYS BANK PLC,

as a Lender

 	 
	 	By: 	/s/ Diane Rolfe
 	 
	 	 	Name: Diane Rolfe 	 
	 	 	Title: Director 	 
	 



 


 









 





	 	 	 	 	 
	 	KEYBANK NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By: 	/s/ Marianne T. Meil
 	 
	 	 	Name: Marianne T. Meil 	 
	 	 	Title: Senior Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	MIZUHO CORPORATE BANK, LTD.,

as a Lender

 	 
	 	By: 	/s/ Robert Gallagher
 	 
	 	 	Name: Robert Gallagher 	 
	 	 	Title: Authorized Signatory 	 
	 



 


 









 





	 	 	 	 	 
	 	FIFTH THIRD BANK,

An Ohio banking corporation, as a Lender

 	 
	 	By: 	/s/ Lisa R. Cook
 	 
	 	 	Name: Lisa R. Cook 	 
	 	 	Title: Assistant Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION,

as a Lender

 	 
	 	By: 	/s/ Chester A. Misbach, Jr.
 	 
	 	 	Name: Chester A. Misbach, Jr. 	 
	 	 	Title: Senior Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	UNION BANK, N.A.,

as a Lender

 	 
	 	By: 	/s/ Megan R. Webster
 	 
	 	 	Name: Megan R. Webster 	 
	 	 	Title: Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

as a Lender

 	 
	 	By: 	/s/ Maria Iarriccio
 	 
	 	 	Name: Maria Iarriccio 	 
	 	 	Title: Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	REGIONS BANK,

as a Lender

 	 
	 	By: 	/s/ Bryan W. Ford
 	 
	 	 	Name: Bryan W. Ford 	 
	 	 	Title: Senior Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as a Lender

 	 
	 	By: 	/s/ Edward D. Herko
 	 
	 	 	Name: Edward D. Herko 	 
	 	 	Title: Director 	 
	 
	 	 	 
	 	By: 	/s/ Ming K. Chu
 	 
	 	 	Name: Ming K. Chu 	 
	 	 	Title: Vice President 	 
	 



 


 









 






	 	 	 	 	 
	 	COMERICA BANK,

as a Lender

 	 
	 	By: 	/s/ Heather Whiting
 	 
	 	 	Name: Heather Whiting 	 
	 	 	Title: Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY

as a Lender

 	 
	 	By: 	/s/ Peter J. Hallan
 	 
	 	 	Name: Peter J. Hallan 	 
	 	 	Title: Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	HSBC BANK USA, NA

as a Lender

 	 
	 	By: 	/s/ Richard Lavina
 	 
	 	 	Name: Richard Lavina 	 
	 	 	Title: Regional President 	 
	 



 


 









 





	 	 	 	 	 
	 	SOVEREIGN BANK

as a Lender

 	 
	 	By: 	/s/ Pedro Bell Astorza
 	 
	 	 	Name: Pedro Bell Astorza 	 
	 	 	Title: SVP — Large Corporate Banking 	 
	 



 


 









 





	 	 	 	 	 
	 	THE HUNTINGTON NATIONAL BANK,

as a Lender

 	 
	 	By: 	/s/ Josh Elsea
 	 
	 	 	Name: Josh Elsea 	 
	 	 	Title: Vice President, Large Corporate Banking 	 
	 



 


 









 





	 	 	 	 	 
	 	BANK OF THE WEST,

as a Lender

 	 
	 	By: 	/s/ Sidney Jordan
 	 
	 	 	Name: Sidney Jordan 	 
	 	 	Title: Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	CAPITAL ONE, NATIONAL ASSOCIATION

as a Lender

 	 
	 	By: 	/s/ Jacob J. Villere
 	 
	 	 	Name: Jacob J. Villere 	 
	 	 	Title: VP — US Corporate Banking 	 
	 



 


 









 





	 	 	 	 	 
	 	COMPASS BANK,

as a Lender

 	 
	 	By: 	/s/ Ramon Garcia
 	 
	 	 	Name: Ramon Garcia 	 
	 	 	Title: Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	BRANCH BANKING AND TRUST COMPANY,

as a Lender

 	 
	 	By: 	/s/ Candace C. Moore
 	 
	 	 	Name: Candace C. Moore 	 
	 	 	Title: Assistant Vice President