exv10w1



 





Exhibit 10.1




 





$600,000,000




AMENDED AND RESTATED CREDIT AGREEMENT




among




FAIR ISAAC CORPORATION,




as Borrower,




The Several Lenders from Time to Time Parties Hereto,




WELLS FARGO BANK, NATIONAL ASSOCIATION,

as Administrative Agent,




U.S. BANK NATIONAL ASSOCIATION,

as Syndication Agent,




and




BANK OF AMERICA, N.A.,




JPMORGAN CHASE BANK, N.A.,




and




DEUTSCHE BANK AG, NEW YORK BRANCH,




as Documentation Agents




 





Dated as of July 23, 2007




WELLS FARGO BANK, NATIONAL ASSOCIATION

and U.S. BANK NATIONAL ASSOCIATION,

as Joint Lead Arrangers and

Joint Bookrunners




 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page
	SECTION 1. GENERAL
	 	 	1	 
	 
	1.1 Defined Terms
	 	 	1	 
	1.2 Other Definitional Provisions
	 	 	18	 
	1.3 Reference to and Effect on the Existing Credit Agreement and the other Loan Documents
	 	 	18	 
	 
	 	 	 	 
	SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
	 	 	19	 
	 
	 	 	 	 
	2.1 Commitments
	 	 	19	 
	2.2 Procedure for Revolving Loan Borrowing
	 	 	19	 
	2.3 Intentionally Deleted
	 	 	20	 
	2.4 Swingline Commitment
	 	 	20	 
	2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans
	 	 	20	 
	2.6 Facility Fees, Utilization Fees, Etc.
	 	 	22	 
	2.7 Termination or Reduction of Commitments
	 	 	22	 
	2.8 Optional Prepayments
	 	 	22	 
	2.9 Conversion and Continuation Options
	 	 	23	 
	2.10 Limitations on Eurodollar Tranches
	 	 	23	 
	2.11 Interest Rates and Payment Dates
	 	 	24	 
	2.12 Computation of Interest and Fees
	 	 	24	 
	2.13 Inability to Determine Interest Rate
	 	 	24	 
	2.14 Pro Rata Treatment and Payments; Notes
	 	 	25	 
	2.15 Requirements of Law
	 	 	27	 
	2.16 Taxes
	 	 	28	 
	2.17 Indemnity
	 	 	30	 
	2.18 Change of Lending Office
	 	 	30	 
	2.19 Replacement of Lenders
	 	 	30	 
	 
	 	 	 	 
	SECTION 3. LETTERS OF CREDIT
	 	 	31	 
	 
	 	 	 	 
	3.1 L/C Commitment
	 	 	31	 
	3.2 Procedure for Issuance of Letters of Credit
	 	 	31	 
	3.3 Fees and Other Charges
	 	 	32	 
	3.4 L/C Participations
	 	 	32	 
	3.5 Reimbursement Obligation of the Borrower
	 	 	33	 






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(continued)




	 	 	 	 	 
	 	 	Page
	3.6 Obligations Absolute
	 	 	34	 
	3.7 Letter of Credit Payments
	 	 	34	 
	3.8 Applications
	 	 	35	 
	3.9 Actions of Issuing Lender
	 	 	35	 
	3.10 Borrower’s Indemnification
	 	 	35	 
	3.11 Lenders’ Indemnification
	 	 	36	 
	3.12 Claims Against L/C Issuer
	 	 	36	 
	 
	 	 	 	 
	SECTION 4. REPRESENTATIONS AND WARRANTIES
	 	 	36	 
	 
	 	 	 	 
	4.1 Financial Condition
	 	 	36	 
	4.2 No Material Adverse Effect
	 	 	37	 
	4.3 Existence; Compliance with Law
	 	 	37	 
	4.4 Power; Authorization; Enforceable Obligations
	 	 	37	 
	4.5 No Legal Bar
	 	 	37	 
	4.6 Litigation
	 	 	37	 
	4.7 No Default
	 	 	38	 
	4.8 Taxes
	 	 	38	 
	4.9 Federal Regulations
	 	 	38	 
	4.10 ERISA
	 	 	38	 
	4.11 Investment Company Act; Other Regulations
	 	 	39	 
	4.12 Environmental Matters
	 	 	39	 
	4.13 Accuracy of Information, Etc.
	 	 	40	 
	4.14 Regulatory Matters
	 	 	40	 
	4.15 Burdensome Contractual Obligations, Etc.
	 	 	40	 
	4.16 Foreign Assets Control, Etc.
	 	 	40	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	41	 
	 
	5.1 Conditions to the Effective Date
	 	 	41	 
	5.2 Conditions to Each Credit Event
	 	 	42	 
	 
	 	 	 	 
	SECTION 6. AFFIRMATIVE COVENANTS
	 	 	43	 
	 
	 	 	 	 
	6.1 Financial Statements
	 	 	43	 
	6.2 Certificates; Other Information
	 	 	43	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	6.3 Payment of Taxes
	 	 	44	 
	6.4 Maintenance of Existence; Compliance
	 	 	44	 
	6.5 Maintenance of Property; Insurance
	 	 	44	 
	6.6 Inspection of Property; Books and Records; Discussions
	 	 	44	 
	6.7 Notices
	 	 	45	 
	6.8 Maintenance of Licenses, Etc.
	 	 	45	 
	6.9 More Favorable Debt Covenants
	 	 	45	 
	6.10 Use of Proceeds
	 	 	46	 
	 
	 	 	 	 
	SECTION 7. NEGATIVE COVENANTS
	 	 	46	 
	 
	 	 	 	 
	7.1 Total Leverage Ratio
	 	 	46	 
	7.2 Fixed Charge Coverage Ratio
	 	 	46	 
	7.3 Change in Business
	 	 	46	 
	7.4 Mergers, Acquisitions, Etc.
	 	 	46	 
	7.5 Liens
	 	 	47	 
	7.6 Subsidiary Debt
	 	 	48	 
	7.7 Distributions
	 	 	48	 
	7.8 Transactions With Affiliates
	 	 	48	 
	7.9 Subsidiary Restrictions
	 	 	49	 
	 
	 	 	 	 
	SECTION 8. EVENTS OF DEFAULT
	 	 	49	 
	 
	 	 	 	 
	SECTION 9. THE AGENTS
	 	 	52	 
	 
	 	 	 	 
	9.1 Appointment
	 	 	52	 
	9.2 Delegation of Duties
	 	 	52	 
	9.3 Exculpatory Provisions
	 	 	52	 
	9.4 Reliance by Administrative Agent
	 	 	53	 
	9.5 Notice of Default
	 	 	53	 
	9.6 Non-Reliance on Agents and Other Lenders
	 	 	53	 
	9.7 Indemnification
	 	 	54	 
	9.8 Agent in Its Individual Capacity
	 	 	54	 
	9.9 Successor Administrative Agent
	 	 	54	 






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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	9.10 Arrangers, Joint Bookrunners, Documentation Agents and Syndication Agent
	 	 	55	 
	 
	 	 	 	 
	SECTION 10. MISCELLANEOUS
	 	 	55	 
	 
	 	 	 	 
	10.1 Amendments and Waivers
	 	 	55	 
	10.2 Notices
	 	 	56	 
	10.3 No Waiver; Cumulative Remedies
	 	 	58	 
	10.4 Survival of Representations and Warranties
	 	 	58	 
	10.5 Payment of Expenses and Taxes
	 	 	58	 
	10.6 Successors and Assigns; Participations and Assignments
	 	 	59	 
	10.7 Adjustments; Set-off
	 	 	62	 
	10.8 Counterparts
	 	 	63	 
	10.9 Severability
	 	 	63	 
	10.10 Integration
	 	 	63	 
	10.11 Governing Law
	 	 	63	 
	10.12 Submission To Jurisdiction; Waivers
	 	 	63	 
	10.13 Acknowledgments
	 	 	64	 
	10.14 Confidentiality
	 	 	64	 
	10.15 WAIVERS OF JURY TRIAL
	 	 	64	 
	10.16 USA Patriot Act
	 	 	65	 






SCHEDULES:




1.1A Commitments




EXHIBITS:




	 	 	 
	A

	 	Notice of Revolving Loan Borrowing
	B

	 	Notice of Swingline Borrowing
	C

	 	Notice of Revolving Loan Conversion
	D

	 	Notice of Revolving Loan Interest Period Selection
	E

	 	Form of Compliance Certificate
	F-1

	 	Form of Secretary’s Certificate
	F-2

	 	Form of Closing Certificate
	G

	 	Form of Assignment and Assumption
	H

	 	Form of Legal Opinion of Borrower’s counsel
	I

	 	Form of Exemption Certificate






 -iv-




 









 








TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page
	J    Form of Revolving Loan Note
	 	 	 	 
	K   Form of Swingline Note
	 	 	 	 






 -v-




 









 








          This AMENDED AND RESTATED CREDIT AGREEMENT (this “Agreement”), dated as of July 23,
2007, is entered into by and among FAIR ISAAC CORPORATION, a Delaware corporation (the
“Borrower”); the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”); WELLS FARGO BANK, NATIONAL ASSOCIATION
(“Wells Fargo”), and U.S. BANK NATIONAL ASSOCIATION, as joint lead arrangers and joint
bookrunners (together and in such capacities, the “Joint Lead Arrangers”); U.S. BANK
NATIONAL ASSOCIATION, as syndication agent (in such capacity, the “Syndication Agent”);
BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A. and DEUTSCHE BANK AG, NEW YORK BRANCH, as
documentation agents (together and in such capacities, the “Documentation Agents”); and
Wells Fargo, as administrative agent (in such capacity, together with any successor thereto, the
“Administrative Agent”).




          WHEREAS, the Borrower, certain of the Lenders and the Administrative Agent previously entered
into that certain Credit Agreement dated as of October 20, 2006 (the “Existing Credit
Agreement”), pursuant to which the Lenders under the Existing Credit Agreement provided certain
credit facilities to the Borrower.




          WHEREAS, all Lenders under the Existing Credit Agreement have agreed to amend and restate such
agreement as follows.




          WHEREAS, certain additional Lenders that were not a party to the Existing Credit Agreement
have agreed to enter into this Agreement.




          WHEREAS, the Borrower has requested the Lenders to make available to it the credit facilities
described herein.




          WHEREAS, the Lenders are willing to make available the credit facilities described herein upon
and subject to the terms and conditions set forth herein.




          NOW THEREFORE, the parties hereto hereby agree as follows:




SECTION 1. GENERAL




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



     “ABR”: for any day, a rate per annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greater of (a) the Base Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For purposes hereof, “Base
Rate” shall mean the rate of interest per annum publicly announced from time to time by the
Administrative Agent as its base rate in effect at its principal office in San Francisco,
California (the Base Rate not being intended to be the lowest rate of interest charged by the
Administrative Agent in connection with extensions of credit to debtors). Any change in the ABR
due to a change in the Base Rate or the Federal Funds Effective Rate shall be effective as of the
opening of business on the effective day of such change in the Base Rate or the Federal Funds
Effective Rate, respectively.



1









 





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



     “Act”: as defined in Section 10.16.



     “Administrative Agent”: as defined in the preamble hereto and any successor in
accordance with the terms and conditions of Section 9.9.



     “Administrative Agent’s Fee Letter”: the letter agreement dated as of June 7, 2007,
between the Borrower and the Administrative Agent regarding certain fees payable by the Borrower to
the Administrative Agent as expressly indicated therein.



     “Affiliate”: with respect to any Person, (a) each Person that, directly or
indirectly, owns or controls, whether beneficially or as a trustee, guardian or other fiduciary,
ten percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that
controls, is controlled by or is under common control with such Person or any Affiliate of such
Person or (c) each of such Person’s officers, directors, managers, joint venturers and partners;
provided, however, that in no case shall the Administrative Agent or any Lender be
deemed to be an Affiliate of the Borrower for purposes of this Agreement. For the purpose of this
definition, “control” of a Person shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of its management or policies, whether through the ownership of
voting securities, by contract or otherwise.



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



     “Agreement”: as defined in the preamble hereto.



     “Anti-Terrorism Law”: each of: (a) the Executive Order; (b) the Patriot Act; (c) the
Money Laundering Control Act of 1986, 18 U.S.C. Sect. 1956; and (d) any other governmental rule now
or hereafter enacted to monitor, deter or otherwise prevent terrorism or the funding or support of
terrorism.



     “Applicable Margin”: the applicable rate per annum set forth under the relevant
column heading determined pursuant to the Pricing Grid. The Applicable Margin shall be determined
as provided in the Pricing Grid and may change as set forth in the definition of Pricing Grid.



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



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



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



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



2









 





     “Beneficial Owner”: as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act,
except that in calculating the beneficial ownership of any particular “person” (as that term is
used in Sections 13(d) and 14(d) of the Exchange Act), notwithstanding the provisions of Rule
13d-3(d)(1)(i)(A) and (B), such “person” will not be deemed to have beneficial ownership of any
securities that such “person” has the right to acquire by conversion of other securities or the
exercise of any option, warrant or right, whether such right is currently exercisable or is
exercisable only upon the occurrence of a subsequent condition. The terms “Beneficially Owns” and
“Beneficially Owned” have correlative meanings.



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



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



     “Borrower”: as defined in the preamble hereto.



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



     “Business”: as defined in Section 4.12(b).



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



     “Capital Leases”: any and all lease obligations that, in accordance with GAAP, are
required to be capitalized on the books of a lessee.



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



     “Change of Control”: with respect to any Person, an event or series of events by
which:



          (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of such person or its Subsidiaries, and any
Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such
plan) becomes the Beneficial Owner, directly or indirectly, of 30% or more of the Capital Stock of
such Person entitled to vote for members of the board of directors or equivalent governing body of
such Person; or




          (b) during any period of 12 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of such Person cease to be composed of individuals (i)
who were members of that board or equivalent governing body on the first day of such period, (ii)
whose election or nomination to that board or equivalent governing body was

3









 








approved by individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of that board or equivalent governing body or (iii)
whose election or nomination to that board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing body (excluding, in the case
of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of
office as, a member of that board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal of one or more directors
by any Person or group other than a solicitation for the election of one or more directors by or on
behalf of the board of directors).




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



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



     “Commitment Period”: the period from and including the Effective Date to the
Termination Date.



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



     “Communications”: as defined in Section 10.2(c).



     “Compliance Certificate”: a certificate duly executed by two Responsible Officers
substantially in the form of Exhibit E.



     “Conduit Lender”: any special purpose entity organized and administered by any Lender
for the purpose of making Loans otherwise required to be made by such Lender and designated by such
Lender in a written instrument; provided, that the designation by any Lender of a Conduit
Lender shall not relieve the designating Lender of any of its obligations to fund a Loan under this
Agreement if, for any reason, its Conduit Lender fails to fund any such Loan, and the designating
Lender (and not the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to its Conduit Lender,
and provided, further, that no Conduit Lender shall be (a) entitled to receive any
greater amount pursuant to Section 2.15, 2.16, 2.17 or 10.5 than the designating Lender would have
been entitled to receive in respect of the extensions of credit made by such Conduit Lender or (b)
deemed to have any Commitment.



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



4









 





     “Convertible Notes”: the Borrower’s 1.5% Senior Convertible Notes, Series B due
August 15, 2023.



     “Credit Event”: as defined in Section 5.2.



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



     “Defaulting Lender”: a Lender that (a) has failed to fund its portion of any Loan or
any participations in Letters of Credit or Swingline Loans that it is required to fund under this
Agreement and has continued in such failure for three Business Days after written notice from the
Administrative Agent, (b) has otherwise failed to pay over to the Administrative Agent or any other
Lender any other amount required to be paid by it hereunder within three Business Days of the date
when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or become
the subject of a receivership, bankruptcy or insolvency proceeding.



     “Designated Person”: any Person who (a) is named on the list of Specially Designated
Nationals or Blocked Persons maintained by the U.S. Department of the Treasury’s Office of Foreign
Assets Control and/or any other similar lists maintained by the U.S. Department of the Treasury’s
Office of Foreign Assets Control pursuant to authorizing statute, executive order or regulation,
(b) (i) is a Person whose property or interest in property is blocked or subject to blocking
pursuant to Section 1 of the Executive Order or any related legislation or any other similar
executive order(s) or (ii) engages in any dealings or transactions prohibited by Section 2 of the
Executive Order or is otherwise associated with any such Person in any manner violative of Section
2 of the Executive Order or (c) (i) is an agency of the government of a country, (ii) an
organization controlled by a country, or (iii) a Person resident in a country that is subject to a
sanctions program identified on the list maintained by the U.S. Department of the Treasury’s Office
of Foreign Assets Control, or as otherwise published from time to time, as such program may be
applicable to such agency, organization or Person.



     “Disclosed Litigation”: as defined in Section 4.6.



     “Distributions”: dividends (in cash, property or obligations) on, or other payments
or distributions on account of, or the setting apart of money for a sinking or other analogous fund
for, or the purchase, redemption, retirement or other acquisition of, any shares of any class of
Capital Stock of any Person or of any warrants, options or other rights to acquire the same (or to
make any payments to any Person, such as “phantom stock” payments, where the amount is calculated
with reference to the fair market or equity value of any Person), but excluding dividends payable
solely in Capital Stock of any Person.



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



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



     “EBITDA”: for any four consecutive fiscal quarter period, (a) the net income of the
Borrower and its Subsidiaries for such period determined on a consolidated basis in accordance with
GAAP, consistently applied for such period, plus (b) to the extent deducted in determining such net
income for such period, the sum of the following for such period: (i) Interest Expense



5









 







for such period, (ii) income tax expense for such period (iii) depreciation and amortization
for such period, (iv) the aggregate amount of extraordinary, non-operating or non-cash charges for
such period, and (v) an amount equal to the non-cash, share-based compensation deducted in
accordance with SFAS 123(R) that is not in excess of $75,000,000, plus (c) the following amounts
for restructuring and acquisitions expenses incurred in the following fiscal quarters included in
such period: (i) $5,300,000 in the fiscal quarter ended June 30, 2006, and (ii) $12,900,000 in the
fiscal quarter ended September 30, 2006, and minus, without duplication, (d) the aggregate amount
of extraordinary, non-operating or non-cash income during such period. Pro forma credit shall be
given for the EBITDA of any companies (or identifiable business units or divisions) (i) acquired by
the Borrower in accordance with the terms of this Agreement as if owned on the first day of the
applicable period, and (ii) sold, transferred or otherwise disposed of in accordance with the terms
of this Agreement during any period will be treated as if not owned during the entire applicable
period.



     “EBITDAR”: for any four consecutive fiscal quarter period, the sum of (a) EBITDA for
such period and (b) rental expense determined in accordance with GAAP for such period.



     “Effective Date”: the date on which the conditions precedent set forth in Section 5.1
shall have been satisfied or waived.



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



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



     “Eurocurrency Liabilities”: as defined in Regulation D of the Board.



     “Eurocurrency Reserve Requirements”: of any Lender for any Interest Period as applied
to a Eurodollar Loan, the reserve percentage applicable during such Interest Period (or if more
than one such percentage shall be so applicable, the daily average of such percentages for those
days in such Interest Period during any such percentage shall be so applicable) under any
regulations of the Board or other Governmental Authority having jurisdiction with respect to
determining the maximum reserve requirement (including basic, supplemental and emergency reserves)
for such Lender with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.



     “Eurodollar Base Rate”: with respect to each Interest Period pertaining to a
Eurodollar Loan, the rate per annum determined on the basis of the rate for deposits in Dollars for
a period equal to such Interest Period commencing on the first day of such Interest Period
appearing on the Reuters Screen LIBOR01 Page (or other display screen as may replace Reuters Screen
LIBOR01 Page, or any successor publication) as of 11:00 A.M., London time, two Business Days prior
to the beginning of such Interest Period, such rate to remain fixed for such Interest Period. In
the event that such rate is not available as provided in the preceding sentence, the



6









 




“Eurodollar Base Rate” shall be determined by reference to such other comparable
publicly available service for displaying eurodollar rates as may be selected by the Administrative
Agent or, in the absence of such availability, by reference to the rate at which the Administrative
Agent is offered Dollar deposits at or about 10:00 A.M. two Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where its eurodollar and foreign currency
and exchange operations are then being conducted for delivery on the first day of such Interest
Period for the number of days comprised therein.




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



     “Eurodollar Rate”: with respect to each day during each Interest Period pertaining to
a Eurodollar Loan, a rate per annum determined for such day in accordance with the following
formula (rounded upward to the nearest 1/16th of 1%):



	 	 	 	 	 
	 

	 	Eurodollar Base Rate
 

1.00 — Eurocurrency Reserve Requirements
	 	 






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



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



     “Exchange Act”: Securities Exchange Act of 1934, as amended.



     “Executive Order”: Executive Order No. 13224 on Terrorist Financings: — Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support
Terrorism issued on 23rd September, 2001, as amended by Order No. 13268 and as further amended
after the date hereof.



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



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



     “Facility Fee Rate”: for any day, the applicable rate per annum determined pursuant
to the Pricing Grid. The Facility Fee Rate shall be determined as provided in the Pricing Grid and
may change as set forth in the definition of Pricing Grid.



     “Federal Funds Effective Rate”: for any day, the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the



7









 







average of the quotations for the day of such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.



     “Fee Payment Date”: (a) the last day of each calendar quarter during the Commitment
Period, (b) the last day of the Commitment Period and (c) the last day of each calendar quarter
after the last day of the Commitment Period, so long as any principal amount of the Loans or any
Reimbursement Obligations remain outstanding after the last day of the Commitment Period.



     “Fixed Charge Coverage Ratio”: for any four consecutive fiscal quarter period, the
ratio of (a) EBITDAR of the Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) for such period to (b) the sum, for the Borrower and
its Subsidiaries (determined on a consolidated basis without duplication in accordance with GAAP),
of the following items for such period: (i) Interest Expense and (ii) rental expense determined in
accordance with GAAP.



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



     “GAAP”: generally accepted accounting principles in the United States and, except as
noted below, determined on the basis of such principles in effect on the date hereof and consistent
with those used in the preparation of the most recent audited financial statements referred to in
Section 4.1. In the event that any “Change in Accounting Principles” (as defined below) shall
occur and such change results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then, upon the request of the Borrower or the Administrative
Agent, the Borrower and the Administrative Agent agree to enter into negotiations in order to amend
such provisions of this Agreement so as to reflect equitably such Change in Accounting Principles
with the desired result that the criteria for evaluating the Borrower’s financial condition shall
be the same after such Change in Accounting Principles as if such Change in Accounting Principles
had not been made. Until such time as such an amendment shall have been executed and delivered by
the Borrower, the Administrative Agent and the Required Lenders, all financial covenants, standards
and terms in this Agreement shall continue to be calculated or construed as if such Change in
Accounting Principles had not occurred. “Change in Accounting Principles” refers to
changes in accounting principles required by the promulgation of any rule, regulation,
pronouncement or opinion by the Financial Accounting Standards Board or any successor thereto, the
SEC or, if applicable, the Public Company Accounting Oversight Board.



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



     “Guarantee Obligation”: as to any Person (the “guaranteeing person”), any
obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing
person that guarantees any Indebtedness, leases, dividends or other obligations (the “primary




8









 




obligations”) of any other third Person (the “primary obligor”) in any manner,
whether directly or indirectly, including any obligation of the guaranteeing person, whether or not
contingent, (a) to purchase any such primary obligation or any property constituting direct or
indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase
property, securities or services primarily for the purpose of assuring the owner of any such
primary obligation of the ability of the primary obligor to make payment of such primary
obligation, (d) otherwise to assure or hold harmless the owner of any such primary obligation
against loss in respect thereof or (e) to reimburse or indemnify an issuer of a letter of credit,
surety bond or guarantee issued by such issuer in respect of primary obligations of a primary
obligor other than the Borrower or any Subsidiary; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person
shall be the maximum amount for which such guaranteeing person may be liable pursuant to the terms
of the instrument embodying such Guarantee Obligation.




     “Indebtedness”: of any Person at any date, without duplication, (a) all obligations
of such Person for borrowed money (including convertible notes), (b) all obligations of such Person
for the deferred purchase price of property or services (other than trade payables incurred in the
ordinary course of such Person’s business that are payable on terms customary in the trade), (c)
all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments,
(d) all indebtedness created or arising under any conditional sale or other title retention
agreement with respect to property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are limited to repossession or
sale of such property), (e) all obligations of such Person, contingent or otherwise, as an account
party or applicant under or in respect of acceptances, letters of credit, surety bonds or similar
arrangements (other than reimbursement obligations, which are not due and payable on such date, in
respect of documentary letters of credit issued to provide for the payment of goods and services in
the ordinary course of business), (f) net mark to market exposures under Swap Agreements and other
financial contracts, other than the use of short-term hedges for risk management purposes, (g)
off-balance sheet liabilities, including synthetic leases, but excluding operating leases as
defined by GAAP, (h) all obligations of such Person as lessee which are capitalized in accordance
with GAAP, (i) indebtedness attributable to permitted securitization transactions, (j) any other
obligation for borrowed money or other financial accommodation which in accordance with GAAP would
be shown as a liability on a consolidated balance sheet, (k) all Guarantee Obligations or
contingent obligations of such Person in respect of obligations of the kind referred to in clauses
(a) through (j) above, and (l) all obligations of the kind referred to in clauses (a) through (k)
above secured by (or for which the holder of such obligation has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by
such Person, whether or not such Person has assumed or become liable for the payment of such
obligation (provided, that if such Person is not liable for such obligation, the amount of
such Person’s Indebtedness with respect thereto shall be deemed to be the lesser of the stated
amount of such obligation and the value of the property subject to such Lien). The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor as a result of such
Person’s ownership interest in or other relationship with such



9









 







entity, except to the extent the terms of such Indebtedness expressly provide that such Person
is not liable therefor.



     “Industrial Loan Corporation”: a financial institution chartered under the laws of
any state as an industrial bank, industrial loan and thrift, or industrial loan company, or any
other Person contemplated by 15 U.S.C. 1679(a)(3)(b)(iii), that is not subject to regulation under
the Bank Holding Company Act.



     “Initial Effective Date”: October 20, 2006.



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



     “Insolvent”: pertaining to a condition of Insolvency.



     “Interest Expense”: for any period, total interest expense for such period determined
on a consolidated basis in accordance with GAAP.



     “Interest Payment Date”: (a) as to any ABR Loan the last day of each calendar quarter
to occur while such Loan is outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day
that is three months, or a whole multiple thereof, after the first day of such Interest Period and
the last day of such Interest Period, (d) as to any Eurodollar Loan, the date of any repayment or
prepayment made in respect thereof, and (e) as to any Swingline Loan, the day that such Loan is
required to be repaid.



     “Interest Period”: as to any Eurodollar Loan, (a) initially, the period commencing on
the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and
ending two weeks or one, two, three or six months thereafter, as selected by the Borrower in its
Notice of Revolving Loan Borrowing or Notice of Revolving Loan Conversion, as the case may be,
given with respect thereto; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending two weeks or one, two,
three or six months thereafter, as selected by the Borrower by in its Notice of Revolving Loan
Interest Period Selection to the Administrative Agent not later than 10:00 a.m. on the date that is
three Business Days prior to the last day of the then current Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are subject to
the following:



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



               (ii) the Borrower may not select an Interest Period that would extend beyond the Termination
Date; and



10









 





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



     “Issuing Lender”: Wells Fargo in its capacity as issuer of Letters of Credit
hereunder, or any successor issuer of Letters of Credit hereunder.



     “Joint Lead Arrangers”: as defined in the preamble hereto.



     “L/C Commitment”: $25,000,000.



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



     “L/C Participants”: in respect of any Letter of Credit, the collective reference to
all the Lenders other than the Issuing Lender that issued such Letter of Credit.



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



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



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



     “Loan”: any loan made by any Lender pursuant to this Agreement, including Swingline
Loans and Revolving Loans.



     “Loan Documents”: this Agreement, the Notes, the Administrative Agent’s Fee Letter
and the Applications, in each case, including any amendment, waiver, supplement or other
modification to any of the foregoing.



     “Marketable Securities”: any of the following:



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




          (b) Certificates of deposit, time or demand deposit accounts or bankers acceptances maturing
within one year from the date of acquisition thereof issued by a commercial bank or trust company
organized under the laws of the United States of America or a

11









 








state thereof or that is a Lender, provided that (i) such deposits or bankers acceptances are
denominated in Dollars, (ii) such bank or trust company has capital, surplus and undivided profits
of not less than $100,000,000 and (iii) such bank or trust company has certificates of deposit or
other debt obligations rated at least A-1 (or its equivalent) by S&P or P-1 (or its equivalent) by
Moody’s;




          (c) Open market commercial paper maturing within 360 days from the date of acquisition thereof
issued by a corporation organized under the laws of the United States of America or a state
thereof, provided such commercial paper is rated at least A-1 (or its equivalent) by S&P or P-1 (or
its equivalent) by Moody’s;




          (d) Any repurchase agreement entered into with a commercial bank or trust company organized
under the laws of the United States of America or a state thereof or that is a Lender, provided
that (i) such bank or trust company has capital, surplus and undivided profits of not less than
$100,000,000, (ii) such bank or trust company has certificates of deposit or other debt obligations
rated at least A-1 (or its equivalent) by S&P or P-1 (or its equivalent) by Moody’s, (iii) the
repurchase obligations of such bank or trust company under such repurchase agreement are fully
secured by a perfected security interest in a security or instrument of the type described in
clause (a), (B) or (C) above and (iv) such security or instrument so securing the repurchase
obligations has a fair market value at the time such repurchase agreement is entered into of not
less than 100% of such repurchase obligations;




          (e) shares of any money market mutual or similar fund that has all or at least 95% of its
assets invested continuously in investments satisfying the requirements of clauses (a) through (d)
of this definition;




          (f) securities with maturities of one year or less from the date of acquisition issued or
fully guaranteed by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by S&P or A2 by Moody’s;
and




          (g) other marketable securities entered into in compliance with the investment policies of the
Borrower delivered to the Administrative Agent prior to the Initial Effective Date and any
modifications to such investment policies after the Initial Effective Date approved by the
Administrative Agent.




     “Material Adverse Effect”: any event or circumstance that has had or could reasonably
be expected to have a material adverse effect on (a) the assets, liabilities, condition (financial
or otherwise), businesses or operations of the Borrower and its Subsidiaries (taken as a whole);
(b) the ability of the Borrower to pay or perform the Obligations in accordance with the terms of
this Agreement and the other Loan Documents; (c) the rights and remedies of the Administrative
Agent, the Issuing Lender or any Lender under this Agreement, the other Loan Documents or any
related document, instrument or agreement; or (d) the validity or enforceability of any of the Loan
Documents.



12









 





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



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



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



     “Non-Excluded Taxes”: as defined in Section 2.16(a).



     “Non-U.S. Lender”: as defined in Section 2.16(d).



     “Notes”: as defined in Section 2.14(f).



     “Notice of Revolving Loan Borrowing”: as defined in Section 2.2.



     “Notice of Revolving Loan Conversion”: as defined in Section 2.9(a).



     “Notice of Revolving Loan Interest Period Selection”: as defined in Section 2.9(b).



     “Notice of Swingline Borrowing”: as defined in Section 2.5(a).



     “Notification”: as defined in Section 10.2(d).



     “Obligations”: the unpaid principal of and interest on (including, without
limitation, interest accruing after the maturity of the Loans and Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for
post-filing or post-petition interest is allowed in such proceeding) the Loans, the Reimbursement
Obligations and all other obligations and liabilities of the Borrower to the Administrative Agent,
the Issuing Lender or any Lender, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of, or in connection
with, this Agreement, any other Loan Document or any other document made, delivered or given in
connection herewith or therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Administrative Agent, the Issuing Lender or any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.



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



     “Overnight LIBOR Rate”: with respect to any Swingline Loans, the per annum rate of
interest most recently announced within Well Fargo at its principal office in San Francisco,
California as its Overnight LIBOR Rate, with the understanding that Wells Fargo’s Overnight



13









 







LIBOR Rate is one of its base rates and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto, and is evidenced by the recording
thereof after its announcement in such internal publication or publications as Wells Fargo may
designate. Wells Fargo shall base its determination of the Overnight LIBOR Rate upon such offers
for deposits on or other market indicators of the interbank market as Wells Fargo in its discretion
deems appropriate, and the Overnight LIBOR Rate available to the Borrower hereunder shall be
adjusted by Wells Fargo to take into account the Eurocurrency Reserve Requirements. Any change in
the Overnight LIBOR Rate shall become effective on the date on which each such change in the
Overnight LIBOR Rate is announced within Wells Fargo.



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



     “Patriot Act”: the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 (commonly known as the
USA Patriot Act).



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



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



     “Permitted Acquisition”: as defined in Section 7.4.



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



     “Plan”: at a particular time, any employee benefit plan that is covered by Title IV
of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is (or, if such plan
were terminated at such time, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.



     “Platform”: as defined in Section 10.2(c).



     “Pricing Grid”:



14









 





	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Applicable Margin	 	Applicable Margin	 	Facility	 	 
	 	 	Total Leverage	 	for	 	for	 	Fee	 	Utilization
	Level	 	Ratio	 	ABR Loans	 	Eurodollar Loans	 	Rate	 	Fee Rate
	1
	 	 	< 1.00	 	 	 	0	%	 	 	0.300	%	 	 	0.080	%	 	 	0.070	%
	2
	 	 	3 1.00 <1.50	 	 	 	0	%	 	 	0.350	%	 	 	0.100	%	 	 	0.100	%
	3
	 	 	3 1.50 <2.00	 	 	 	0	%	 	 	0.375	%	 	 	0.125	%	 	 	0.100	%
	4
	 	 	3 2.00 <2.50	 	 	 	0	%	 	 	0.450	%	 	 	0.150	%	 	 	0.100	%
	5
	 	 	3 2.50	 	 	 	0	%	 	 	0.550	%	 	 	0.175	%	 	 	0.125	%





Any increase or decrease in the Applicable Margin, Facility Fee Rate and Utilization Fee Rate
resulting from a change in the Total Leverage Ratio shall become effective as of the fifth Business
Day immediately following the date a Compliance Certificate is required to be delivered pursuant to
Section 6.2; provided, however, that if no Compliance Certificate is delivered when
due in accordance with such Section, then Tier 5 shall apply as of the date of the failure to
deliver such Compliance Certificate until the fifth Business Day after the date the Borrower
delivers such Compliance Certificate in form and substance acceptable to the Administrative Agent
and thereafter the Applicable Margin, Facility Fee Rate and Utilization Fee Rate shall be based on
the Total Leverage Ratio indicated on such Compliance Certificate until such time as further
adjusted as set forth in this definition. From the Effective Date through the fifth Business Day
immediately following the date the Compliance Certificate for the fiscal quarter ended June 30,
2007 is delivered, the Applicable Margin, the Facility Fee and the Utilization Fee shall be
determined based upon the Compliance Certificate delivered pursuant to Section 5.1(h).




     “Properties”: as defined in Section 4.12(a).



     “Proposed Target”: as defined in Section 7.4(b).



     “Refunded Swingline Loans”: as defined in Section 2.5.



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



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



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



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



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



15









 





     “Required Lenders”: at any time, two or more holders of more than 50% of the Total
Commitments then in effect or, if the Commitments have been terminated, the Total Extensions of
Credit then outstanding. In each case, at any time any Lender is a Defaulting Lender, all
Defaulting Lenders shall be excluded in determining “Required Lenders” and “Required Lenders” shall
mean non-Defaulting Lenders otherwise meeting the criteria set forth in this definition.



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



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



     “Revolving Loans”: as defined in Section 2.1(a).



     “S&P”: Standard & Poor’s Ratings Services.



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



     “Single Employer Plan”: any Plan that is covered by Title IV of ERISA, but that is
not a Multiemployer Plan.



     “Specified Exchange Act Filings”: the Borrower’s Form 10-K annual report for the year
ended September 30, 2005 and each and all of the Form 8-Ks (and to the extent applicable proxy
statements) filed by the Borrower with the SEC after September 30, 2005 and prior to the date that
is one Business Day before the date of this Agreement.



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



16









 





     “Swap Agreement”: any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions.



     “Swingline Commitment”: the obligation of the Swingline Lender to make Swingline
Loans pursuant to Section 2.4 in an aggregate principal amount at any one time outstanding not to
exceed $10,000,000.



     “Swingline Lender”: Wells Fargo, in its capacity as the lender of Swingline Loans, or
any successor swing line lender hereunder.



     “Swingline Loans”: as defined in Section 2.4.



     “Swingline Note”: as defined in Section 2.14(g).



     “Swingline Participation Amount”: as defined in Section 2.5.



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



     “Termination Date”: October 20, 2011 or such earlier date as otherwise determined
pursuant to Section 2.7.



     “Total Commitments”: at any time, the aggregate amount of the Commitments of all
Lenders at such time. The original amount of the Total Commitments is $600,000,000.



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



     “Total Leverage Ratio”: at the end of any fiscal quarter, the ratio of (a)
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis at such time minus the
amount of cash and Marketable Securities (valued at fair market value) at such time in excess of
$50,000,000, to (b) EBITDA for the four consecutive quarter period ended as of the end of the such
fiscal quarter.



     “Transferee”: any Assignee or Participant.



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



     “United States”: the United States of America.



     “Utilization Fee Rate”: for any day, the applicable rate per annum determined
pursuant to the to the Pricing Grid. The Utilization Fee Rate shall be determined as provided in
the Pricing Grid and may change as set forth in the definition of Pricing Grid.



     “Wells Fargo”: as defined in the preamble hereto.



17









 





     1.2 Other Definitional Provisions.



          (a) Unless otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or other document made or
delivered pursuant hereto or thereto. As used herein and, except as otherwise provided therein, in
the other Loan Documents, and any certificate or other document made or delivered pursuant hereto
or thereto, (i) accounting terms relating to the Borrower and its Subsidiaries defined in Section
1.1 and accounting terms partly defined in Section 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP, (ii) the words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”, (iii) the word “incur” shall be
construed to mean incur, create, issue, assume, suffer to exist or become liable in respect of (and
the words “incurred” and “incurrence” shall have correlative meanings), (iv) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, Capital Stock, securities, revenues,
accounts, leasehold interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to such agreements or
Contractual Obligations as amended, supplemented, restated or otherwise modified from time to time.




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




          (c) All references in this Agreement and each of the other Loan Documents to a time of day
shall mean Minneapolis, Minnesota time, unless otherwise indicated.




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




     1.3 Reference to and Effect on the Existing Credit Agreement and the other Loan
Documents. From and after the Effective Date: all terms and conditions of the Existing Credit
Agreement and any other “Loan Document” as defined therein, as amended and restated by this
Agreement and the other Loan Documents being executed and delivered on the Effective Date, shall be
and remain in full force and effect, as so amended and restated, and shall constitute the legal,
valid, binding and enforceable obligations of the parties thereto to Lenders and Administrative
Agent. Without limiting the generality of the foregoing:



               (i) the terms and conditions of the Existing Credit Agreement shall be amended and restated as
set forth herein and, as so amended and restated, shall be amended and restated in its entirety,
but shall be amended and restated only with respect to the rights, duties and obligations among
Borrower, Lenders and Administrative Agent accruing from and after the Effective Date;



               (ii) this Agreement shall not in any way release or impair the rights, duties or Obligations
created pursuant to the Existing Credit Agreement or any other Loan Document or affect the relative
priorities thereof, in each case to the extent in force and effect



18









 







prior to the Effective Date, except as modified hereby or by documents, instruments and
agreements executed and delivered in connection herewith, and all of such rights, duties and
Obligations are assumed, ratified and affirmed by the Borrower;



               (iii) all indemnification obligations of the Borrower under the Existing Credit Agreement and
any other Loan Documents shall survive the execution and delivery of this Agreement and shall
continue in full force and effect for the benefit of Lenders, Administrative Agent, and any other
Person indemnified under the Existing Credit Agreement or any other Loan Document at any time prior
to the Effective Date;



               (iv) the Obligations incurred under the Existing Credit Agreement shall, to the extent
outstanding on the Effective Date, continue outstanding and shall not be deemed to be paid,
released, discharged, extinguished or otherwise satisfied by the execution of this Agreement, and
this Agreement shall not constitute a refinancing, substitution or novation of such Obligations or
any of the other rights, duties and obligations of the parties hereunder, in each case except as
otherwise provided for by the terms of this Agreement; and



               (v) the execution, delivery and effectiveness of this Agreement shall not operate as a waiver
of any right, power or remedy of Lenders or Administrative Agent under the Existing Credit
Agreement, nor constitute a waiver of any covenant, agreement or obligation under the Existing
Credit Agreement, except to the extent that any such covenant, agreement or obligation is no longer
set forth herein or is modified hereby.



SECTION 2. AMOUNT AND TERMS OF COMMITMENTS




     2.1 Commitments. On the terms and subject to conditions hereof, each Lender severally
agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time
during the Commitment Period in an aggregate principal amount at any one time outstanding which,
when added to such Lender’s Percentage of the sum of (i) the L/C Obligations then outstanding and
(ii) the aggregate principal amount of the Swingline Loans then outstanding, does not exceed the
amount of such Lender’s Commitment. During the Commitment Period, the Borrower may use the
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be
Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative
Agent in accordance with Sections 2.2 and 2.9. The Borrower shall repay all outstanding Revolving
Loans on the Termination Date.



     2.2 Procedure for Revolving Loan Borrowing. The Borrower may borrow under the
Commitments during the Commitment Period on any Business Day, provided that the Borrower
shall give the Administrative Agent irrevocable notice in the form of Exhibit A, duly executed by
two Responsible Officers and appropriately completed (a “Notice of Revolving Loan
Borrowing”), (which notice must be received by the Administrative Agent prior to 12:00 Noon (a)
three Business Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or (b)
one Business Day prior to the requested Borrowing Date, in the case of ABR Loans) specifying (i)
the amount and Type of Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii)
in the case of Eurodollar Loans, the respective amounts of each such



19









 







Type of Loan and the respective lengths of the initial Interest Period therefor. The first
Notice of Loan Borrowing may be given prior to the effectiveness of this Agreement but otherwise in
accordance with the preceding sentence. Each borrowing under the Commitments shall be in an amount
equal to $3,000,000 or a whole multiple of $500,000 in excess thereof (or, if the then aggregate
Available Commitments are less than $3,000,000, such lesser amount). Upon receipt of a Notice of
Revolving Loan Borrowing from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its pro rata share of each borrowing available
to the Administrative Agent for the account of the Borrower at the Funding Office prior to 12:00
Noon on the Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower by the
Administrative Agent crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the Lenders and in like
funds as received by the Administrative Agent.



     2.3 Intentionally Deleted.



     2.4 Swingline Commitment. On the terms and subject to conditions hereof, the
Swingline Lender agrees to make a portion of the credit otherwise available to the Borrower under
the Commitments from time to time on or after the Initial Effective Date during the Commitment
Period by making swingline loans (“Swingline Loans”) to the Borrower; provided that (i) the
aggregate principal amount of Swingline Loans outstanding at any time shall not exceed the
Swingline Commitment then in effect (notwithstanding that the Swingline Loans outstanding at any
time, when aggregated with the Swingline Lender’s other outstanding Revolving Loans, may exceed the
Swingline Commitment or the Swingline Lender’s Commitment then in effect) and (ii) the Borrower
shall not request, and the Swingline Lender shall not make, any Swingline Loan if, after giving
effect to the making of such Swingline Loan, the aggregate amount of the Available Commitments
would be less than zero. During the Commitment Period, the Borrower may use the Swingline
Commitment by borrowing, repaying and reborrowing, all in accordance with the terms and conditions
hereof. Swingline Loans shall bear interest only at the Overnight LIBOR Rate plus the Applicable
Margin. The Borrower shall repay to the Swingline Lender the then unpaid principal amount of each
Swingline Loan on or prior to the date that is the earlier of (i) the 15th and last day of each
month and (ii) the Termination Date; provided that on each date on which a Revolving Loan
is borrowed, the Borrower shall repay all Swingline Loans then outstanding.



     2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans.



          (a) Whenever the Borrower wishes to borrow Swingline Loans, it shall give the Swingline Lender
irrevocable telephonic notice (which telephonic notice must be received by the Swingline Lender not
later than 1:00 P.M. on the proposed Borrowing Date), specifying (i) the amount to be borrowed, and
(ii) the requested Borrowing Date (which shall be a Business Day during the Commitment Period).
Each such telephonic notice must be confirmed promptly by an irrevocable written notice in the form
of Exhibit B, duly executed by two Responsible Officers and appropriately completed (a “Notice
of Swingline Borrowing”). Each borrowing under the Swingline Commitment shall be in an amount
equal to $1,000,000 or a whole multiple thereof. Not later than 2:00 P.M. on the Borrowing Date
specified in a notice in respect of Swingline Loans, the Swingline Lender shall make available to
the Administrative Agent at the

20









 








Funding Office an amount in immediately available funds equal to the amount of the Swingline
Loan to be made by the Swingline Lender. The Administrative Agent shall make the proceeds of such
Swingline Loan available to the Borrower on such Borrowing Date by depositing such proceeds in the
account of the Borrower with the Administrative Agent on such Borrowing Date in immediately
available funds.




          (b) The Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the Swingline Lender to
act on its behalf), on one Business Day’s notice given by the Swingline Lender no later than 12:00
Noon request each Lender to make, and each Lender hereby agrees to make, a Revolving Loan, in an
amount equal to such Lender’s Percentage of the aggregate amount of the Swingline Loans (the
“Refunded Swingline Loans”) outstanding on the date of such notice, to repay the Swingline
Lender. Each Lender shall make the amount of such Revolving Loan available to the Administrative
Agent at the Funding Office in immediately available funds, not later than 10:00 A.M. one Business
Day after the date of such notice. The proceeds of such Revolving Loans shall be immediately made
available by the Administrative Agent to the Swingline Lender for application by the Swingline
Lender to the repayment of the Refunded Swingline Loans. The Borrower irrevocably authorizes the
Swingline Lender to charge the Borrower’s accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such Refunded Swingline
Loans to the extent amounts received from the Lenders are not sufficient to repay in full such
Refunded Swingline Loans.




          (c) If prior to the time a Revolving Loan would have otherwise been made pursuant to Section
2.5(b) one of the events described in Section 8(f) or if for any other reason, as determined by the
Swingline Lender in its sole discretion, Revolving Loans may not be made as contemplated by Section
2.5(b), each Lender shall, on the date such Revolving Loan was to have been made pursuant to the
notice referred to in Section 2.5(b), purchase for cash an undivided participating interest in the
then outstanding Swingline Loans by paying to the Swingline Lender an amount (the “Swingline
Participation Amount”) equal to (i) such Lender’s Percentage times (ii) the sum of the
aggregate principal amount of Swingline Loans then outstanding that were to have been repaid with
such Revolving Loans.




          (d) Whenever, at any time after the Swingline Lender has received from any Lender such
Lender’s Swingline Participation Amount, the Swingline Lender receives any payment on account of
the Swingline Loans, the Swingline Lender will distribute to such Lender its Swingline
Participation Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s participating interest was outstanding and funded and, in
the case of principal and interest payments, to reflect such Lender’s pro rata portion of such
payment if such payment is not sufficient to pay the principal of and interest on all Swingline
Loans then due); provided, however, that in the event that such payment received by
the Swingline Lender is required to be returned, such Lender will return to the Swingline Lender
any portion thereof previously distributed to it by the Swingline Lender.




          (e) Each Lender’s obligation to make the Loans referred to in Section 2.5(b) and to purchase
participating interests pursuant to Section 2.5(c) shall be absolute and unconditional and shall
not be affected by any circumstance, including (i) any setoff,

21









 








counterclaim, recoupment, defense or other right that such Lender or the Borrower may have
against the Swingline Lender, the Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to satisfy any of the
other conditions specified in Section 5, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the
Borrower or any other Lender or (v) any other circumstance, happening or event whatsoever, whether
or not similar to any of the foregoing.




     2.6 Facility Fees, Utilization Fees, Etc.



          (a) The Borrower agrees to pay to the Administrative Agent for the account of each Lender
(except for Defaulting Lenders) a facility fee for the period from and including the Effective Date
to the last day of the Commitment Period, computed at the Facility Fee Rate on the Commitment of
such Lender during the period for which payment is made, payable quarterly in arrears on each Fee
Payment Date, commencing on the first such date to occur after the Effective Date. In addition, if
the principal amount of any Loan, or any Reimbursement Obligations, shall remain outstanding and
unpaid after the last day of the Commitment Period, the Borrower agrees to pay to the
Administrative Agent, for the account of each Lender, a facility fee for the period from the last
day of the Commitment Period until the date on which such amounts are repaid in full, computed at
the Facility Fee Rate on such amounts, payable quarterly in arrears on each Fee Payment Date,
commencing on the first such date after the last day of the Commitment Period.




          (b) If the aggregate principal amount of the Loans and L/C Obligations outstanding on any day
during the calendar quarter preceding a Fee Payment Date (or such shorter period beginning with the
date hereof or ending with the Termination Date) is greater than 50% of the Total Commitments, the
Borrower agrees to pay to the Administrative Agent for the account of each Lender (except for
Defaulting Lenders) a utilization fee at the applicable Utilization Fee Rate on such principal
amount of the Loans and the L/C Obligations outstanding on such day, payable in arrears on each Fee
Payment Date.




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




     2.7 Termination or Reduction of Commitments. The Borrower shall have the right, upon
not less than three Business Days’ notice to the Administrative Agent, to terminate the Commitments
or, from time to time, to reduce the amount of the Commitments; provided that no such
termination or reduction of Commitments shall be permitted if, after giving effect thereto and to
any prepayments of the Loans made on the effective date thereof, the Total Extensions of Credit
would exceed the Total Commitments. Any such reduction shall be in an amount equal to $5,000,000,
or a whole multiple thereof, and shall reduce permanently the Commitments then in effect.



     2.8 Optional Prepayments. The Borrower may at any time and from time to time prepay
the Loans, in whole or in part, without premium or penalty, upon irrevocable notice delivered to
the Administrative Agent no later than 12:00 Noon one Business Day prior thereto,



22









 







in the case of Eurodollar Loans, and no later than 12:00 Noon one Business Day prior thereto,
in the case of ABR Loans, which notice shall specify the date and amount of prepayment and whether
the prepayment is of Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower
shall also pay any amounts owing pursuant to Section 2.17. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any such notice is
given, the amount specified in such notice shall be due and payable on the date specified therein,
together with (except in the case of Revolving Loans that are ABR Loans and Swingline Loans)
accrued interest to such date on the amount prepaid. Partial prepayments of Revolving Loans which
shall be in an aggregate principal amount of $3,000,000 or a whole multiple of $500,000 in excess
thereof.



     2.9 Conversion and Continuation Options.



          (a) The Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans by
giving the Administrative Agent prior irrevocable written notice of such election no later than
12:00 Noon on the Business Day preceding the proposed conversion date, provided that any
such conversion of Eurodollar Loans may only be made on the last day of an Interest Period with
respect thereto. The Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the Administrative Agent prior irrevocable written notice of such election no later than
12:00 Noon on the third Business Day preceding the proposed conversion date (which notice shall
specify the length of the initial Interest Period therefor), provided that no ABR Loan may
be converted into a Eurodollar Loan when any Event of Default has occurred and is continuing and
the Required Lenders have determined in their sole discretion not to permit such conversions. Each
such notice shall be in the form of Exhibit C, duly executed by two Responsible Officers and
appropriately completed (a “Notice of Revolving Loan Conversion”). Upon receipt of a
Notice of Revolving Loan Conversion, the Administrative Agent shall promptly notify each relevant
Lender thereof.




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




     2.10 Limitations on Eurodollar Tranches. Notwithstanding anything to the contrary in
this Agreement, all borrowings, conversions and continuations of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to such elections so
that (a) after giving effect thereto, the aggregate principal amount of the Eurodollar Loans



23









 







comprising each Eurodollar Tranche shall be equal to $3,000,000 or a whole multiple of
$500,000 in excess thereof and (b) no more than 8 Eurodollar Tranches shall be outstanding at any
one time.



     2.11 Interest Rates and Payment Dates.



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




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




          (c) On and after the occurrence of an Event of Default, until the time when such Event of
Default shall have been cured or waived in writing by the Required Lenders or all the Lenders (as
required by this Agreement), the Borrower shall pay interest on the aggregate, outstanding
principal amount of all Obligations hereunder at a per annum rate equal to the otherwise applicable
interest rate plus two percent (2.00%) or, if no such per annum rate is applicable to any such
Obligations, at a per annum rate equal to the ABR, plus the Applicable Margin for ABR Loans, plus
two percent (2.00%) payable on demand. Overdue interest shall itself bear interest at such
applicable default rate, and shall be compounded with the principal Obligations daily, to the
fullest extent permitted by applicable law.




          (d) Interest shall be payable in arrears on each Interest Payment Date, provided that
interest accruing pursuant to Section 2.11(c) shall be payable from time to time on demand.




     2.12 Computation of Interest and Fees.



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




          (b) Each determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive absent manifest error. The Administrative Agent
shall, at the request of the Borrower or any Lender, deliver to the Borrower or such Lender a
statement showing the quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.11.




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



24









 





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




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



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




     2.14 Pro Rata Treatment and Payments; Notes.



          (a) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on
account of any facility fee, utilization fee and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Percentages of the Lenders (excluding any
Defaulting Lenders in connection with the payment of any facility fee or utilization fee).




          (b) Each payment (including each prepayment) by the Borrower on account of principal of and
interest on the Revolving Loans shall be made pro rata according to the respective outstanding
principal amounts of the Revolving Loans then held by the Lenders. Each payment in respect of
Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender
that issued such Letters of Credit.




          (c) Notwithstanding anything to the contrary herein, all payments (including prepayments) to
be made by the Borrower hereunder, whether on account of principal, Reimbursement Obligations,
interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior
to 1:00 P.M. on the due date thereof to the Administrative Agent, for the account of the Lenders or
the Issuing Lender, as applicable, at the Funding Office, in Dollars and in immediately available
funds. The Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder (other than payments on the Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended
to the next succeeding Business Day. If any payment on a Eurodollar Loan becomes due and payable
on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately preceding Business
Day. In the case of any



25









 




extension of any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.




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




          (e) Unless the Administrative Agent shall have been notified in writing by the Borrower prior
to the date of any payment due to be made by the Borrower hereunder that the Borrower will not make
such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required to, in reliance
upon such assumption, make available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the Administrative Agent by the Borrower
within three Business Days after such due date, the Administrative Agent shall be entitled to
recover, on demand, from each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the
Administrative Agent or any Lender against the Borrower.




          (f) The Borrower agrees that, upon the request to the Administrative Agent by any Lender, the
Borrower will promptly execute and deliver to such Lender a promissory note (a “Note”) of
the Borrower evidencing any Revolving Loans of such Lender, substantially in the form of Exhibit J,
with appropriate insertions as to date and principal amount; provided, that delivery of
Notes shall not be a condition precedent to the Effective Date or the occurrence or making of Loans
on the Effective Date.




          (g) The Swingline Lender’s Swingline Loans shall be evidenced by a promissory note in the form
of Exhibit K (the “Swingline Note”) which note shall be (i) payable to the order of the
Swingline Lender, (ii) in the amount of the Swingline Commitment, (iii) dated the Initial Effective
Date and (iv) otherwise appropriately completed.




26









 





     2.15 Requirements of Law.



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




               (i) shall subject any Lender to any tax of any kind whatsoever with respect to this Agreement,
any Letter of Credit, any Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for Non-Excluded Taxes and Other
Taxes covered by Section 2.16 and net income taxes and franchise taxes imposed in lieu of net
income taxes);



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



               (iii) shall impose on such Lender any other condition that is generally applicable to loans
made by such Lender;


and the result of any of the foregoing is to increase the cost to such Lender, by an amount that
such Lender deems to be material, of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit, or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall promptly pay such Lender,
within 25 days after its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the Borrower (with a copy
to the Administrative Agent) of the event by reason of which it has become so entitled.




          (b) If any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application thereof or compliance by
such Lender or any Person controlling such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law) from any Governmental Authority made subsequent
to the date hereof shall have the effect of reducing the rate of return on such Lender’s or such
Person’s capital as a consequence of its obligations hereunder or under or in respect of any Letter
of Credit to a level below that which such Lender or such Person could have achieved but for such
adoption, change or compliance (taking into consideration such Lender’s or such Person’s policies
with respect to capital adequacy) by an amount deemed by such Lender to be material, then from time
to time, after submission by such Lender to the Borrower (with a copy to the Administrative Agent)
of a written request therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such Person for such reduction. Notwithstanding anything
to the contrary in this Section 2.15, the Borrower shall not be required to compensate a Lender
pursuant to this Section




27









 







2.15 for any amounts incurred more than 90 days prior to the date that such Lender notifies
the Borrower of such Lender’s intention to claim compensation therefor; provided that, if
the circumstances giving rise to such claim have a retroactive effect, then such 90-day period
shall be extended to include the period of such retroactive effect not to exceed twelve months.




          (c) A certificate as to any additional amounts payable pursuant to this Section 2.15 submitted
by any Lender to the Borrower (with a copy to the Administrative Agent) shall be conclusive absent
manifest error. The obligations of the Borrower pursuant to this Section 2.15 shall survive for
the termination of this Agreement and the payment of the Loans and all other amounts then due and
payable hereunder.




     2.16 Taxes.



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




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




          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its own account or for
the account of the relevant Lender, as the case may be, a certified copy of any original official
receipt received by the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority, the Borrower shall
indemnify the Administrative Agent and the Lenders for any

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incremental taxes, interest or penalties that may become payable by the Administrative Agent
or any Lender as a result of any such failure.




          (d) Each Lender (or Transferee) that is not a “U.S. Person” as defined in Section 7701(a)(30)
of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the Administrative
Agent (or, in the case of a Participant, to the Lender from which the related participation shall
have been purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI,
or, in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest”, a statement
substantially in the form of Exhibit I and a Form W-8BEN, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Loan Documents. Such forms shall be delivered by each Non-U.S.
Lender on or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related participation). In
addition, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or
invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Borrower (or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of
this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant to this
paragraph that such Non-U.S. Lender is not legally able to deliver; provided,
however, if any Non-U.S. Lender fails to file forms with the Borrower and the
Administrative Agent (or, in the case of a Participant, with the Lender from which the related
participation was purchased) on or before the date the Non-U.S. Lender becomes a party to this
Agreement (or, in the case of a Participant, on or before the date such Participant purchased the
related participation) entitling the Non-U.S. Lender to a complete exemption from United States
withholding taxes at such time, such Non-U.S. Lender shall not be entitled to receive any increased
payments from the Borrower with respect to United States withholding taxes under paragraph (a) of
this Section, except to the extent that the Non-U.S. Lender’s assignor (if any) was entitled, at
the time of the assignment to the Non-U.S. Lender, to receive additional amounts from the Borrower
with respect to United States withholding taxes.




          (e) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without withholding or at a
reduced rate, provided that such Lender is legally entitled to complete, execute and
deliver such documentation and in such Lender’s judgment such completion, execution or submission
would not materially prejudice the legal position of such Lender.




          (f) Neither the Administrative Agent nor any Lender shall be obligated under any circumstances
to make available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.




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          (g) The agreements in this Section 2.16 shall survive for the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.




     2.17 Indemnity. The Borrower agrees to indemnify each Lender for, and to hold each
Lender harmless from, any loss, cost or expense (including, without limitation, any interest paid
by such Lender to lenders of funds borrowed by it to make or carry its Eurodollar Loans to the
extent not recovered by the Lender in connection with the liquidation or re-employment of such
funds and including the compensation payable by such Lender to a Participant) and any loss
sustained by such Lender in connection with the liquidation or re-employment of such funds
(including, without limitation, a return on such liquidation or re-employment that would result in
such Lender receiving less than it would have received had such Eurodollar Loan remained
outstanding until the last day of the Interest Period applicable to such Eurodollar Loans) that
such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the Borrower has given a
notice requesting the same in accordance with the provisions of this Agreement, (b) default by the
Borrower in making any prepayment of or conversion from Eurodollar Loans after the Borrower has
given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day that is not the last day of an Interest Period with respect
thereto. A certificate as to any amounts payable pursuant to this Section 2.17 submitted to the
Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.



     2.18 Change of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.15 or 2.16(a) with respect to such Lender, it will,
if requested by the Borrower, use reasonable efforts (subject to overall policy considerations of
such Lender) to designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its lending office(s) to
suffer no unreimbursed economic disadvantage or any legal or regulatory disadvantage, and
provided, further, that nothing in this Section 2.18 shall affect or postpone any
of the obligations of the Borrower or the rights of any Lender pursuant to Section 2.15 or 2.16(a).



     2.19 Replacement of Lenders. The Borrower shall be permitted to replace any Lender
that (a) requests (on its behalf or any of its Participants) reimbursement for amounts owing
pursuant to Section 2.15 or 2.16(a) or (b) defaults in its obligation to make Loans hereunder, with
a replacement financial institution; provided that (i) such replacement does not conflict
with any Requirement of Law, (ii) no Event of Default shall have occurred and be continuing at the
time of such replacement, (iii) prior to any such replacement, such Lender shall have taken no
action under Section 2.18 which eliminates the continued need for payment of amounts owing pursuant
to Section 2.15 or 2.16(a), (iv) the replacement financial institution shall purchase, at par, all
Loans and other amounts owing to such replaced Lender on or prior to the date of replacement, (v)
the Borrower shall be liable to such replaced Lender under Section 2.17 if any Eurodollar Loan
owing to such replaced Lender shall be purchased other than on the last day of the Interest Period
relating thereto, (vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agent and, if a different entity, the Issuing Lender,
(vii) the replaced Lender shall be obligated to make such replacement in



30









 







accordance with the provisions of Section 10.6 (provided that the Borrower shall be
obligated to pay the registration and processing fee referred to therein), (viii) until such time
as such replacement shall be consummated, the Borrower shall pay all additional amounts (if any)
required pursuant to Section 2.15 or 2.16(a), as the case may be, and (ix) any such replacement
shall not be deemed to be a waiver of any rights that the Borrower, the Administrative Agent or any
other Lender shall have against the replaced Lender; provided, further, that if the
Borrower seeks to exercise such right, it must do so within sixty (60) days after it first knows or
should have known of the occurrence of the event or events giving rise to such right, and neither
the Administrative Agent nor any Lender shall have any obligation to identify or locate a
replacement Lender for the Borrower (it being expressly agreed that in such circumstances it is the
Borrower’s obligation to identify or locate a replacement Lender that is acceptable to the
Administrative Agent).



SECTION 3. LETTERS OF CREDIT




     3.1 L/C Commitment.



          (a) On the terms and subject to the conditions hereof, the Issuing Lender, in reliance on the
agreements of the other Lenders set forth in Section 3.4(a), agrees to issue standby letters of
credit (the letters of credit issued on or after the Initial Effective Date pursuant to this
Section 3, collectively, the “Letters of Credit”) for the account of the Borrower on any
Business Day on or after the Initial Effective Date and during the Commitment Period in such form
as may be approved from time to time by the Issuing Lender; provided, that no Issuing
Lender shall issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the Available
Commitments would be less than zero. Each Letter of Credit shall (i) be denominated in Dollars and
(ii) expire no later than the earlier of (x) the first anniversary of its date of issuance and (y)
the date which is five Business Days prior to the Termination Date; provided that any
Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause (y) above).




          (b) No Issuing Lender shall at any time be obligated to issue, amend, extend or renew any
Letter of Credit hereunder if such issuance, amendment, extension or renewal would conflict with,
or cause the Issuing Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.




     3.2 Procedure for Issuance of Letters of Credit. The Borrower may from time to time
request that the Issuing Lender issue a Letter of Credit by delivering to the Issuing Lender at its
address for notices specified herein an Application therefor, completed to the satisfaction of the
Issuing Lender, and such other certificates, documents and other papers and information as the
Issuing Lender may request. Concurrently with the delivery of an Application to the Issuing
Lender, the Borrower shall deliver a copy thereof to the Administrative Agent and the
Administrative Agent shall provide notice of such request to the Lenders. Upon receipt of any
Application, the Issuing Lender will process such Application and the certificates, documents and
other papers and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested thereby by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may be agreed to



31









 







by the Issuing Lender and the Borrower (but in no event shall any Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and information relating
thereto). Promptly after issuance by the Issuing Lender of a Letter of Credit, the Issuing Lender
shall furnish a copy of such Letter of Credit to the Borrower. The Issuing Lender shall promptly
give notice to the Administrative Agent of the issuance of each Letter of Credit issued by the
Issuing Lender (including the amount thereof), and shall provide a copy of such Letter of Credit to
the Administrative Agent as soon as possible after the date of issuance.



     3.3 Fees and Other Charges.



          (a) The Borrower will pay a fee on the aggregate drawable amount of all outstanding Letters of
Credit at a per annum rate equal to the Applicable Margin then in effect with respect to Eurodollar
Loans, shared ratably among the Lenders in accordance with their respective Percentages and payable
quarterly in arrears on each Fee Payment Date after the issuance date. On and after the occurrence
of an Event of Default, until the time when such Event of Default shall have been cured or waived
in writing by the Required Lenders or all the Lenders (as required by this Agreement), the
foregoing fee shall be increased by two percent (2.00%) payable on demand.




          (b) The Borrower shall pay directly to the Issuing Lender for its own account a fronting fee
in an amount with respect to each Letter of Credit equal to 0.10% per annum of the amount of such
Letter of Credit, due and payable quarterly in arrears on each Fee Payment Date after the issuance
date; provided, that in the case of an increase in the amount of a Letter of Credit after
the issuance thereof, such fronting fee shall be payable only on the increased amount thereof. In
addition to the foregoing fees, the Borrower shall pay or reimburse the Issuing Lender for such
normal and customary costs and expenses as are incurred or charged by the Issuing Lender in
issuing, negotiating, effecting payment under, amending, renewing or otherwise administering any
Letter of Credit.




     3.4 L/C Participations.



          (a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender,
on the terms and conditions hereinafter stated, for such L/C Participant’s own account and risk, an
undivided interest equal to such L/C Participant’s Percentage in the Issuing Lender’s obligations
and rights under each Letter of Credit issued by the Issuing Lender hereunder and the amount of
each draft paid by the Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with the Issuing Lender that, if a draft is paid under any Letter of Credit
issued by the Issuing Lender for which the Issuing Lender is not reimbursed in full by the Borrower
in accordance with the terms of this Agreement, such L/C Participant shall pay to the
Administrative Agent for the account of the Issuing Lender upon demand at the Issuing Lender’s
address for notices specified herein (and thereafter the Administrative Agent shall promptly pay to
the Issuing Lender) an amount equal to such L/C Participant’s Percentage of the amount of such
draft, or any part thereof, that is not so reimbursed. Each L/C Participant’s obligation to pay
such amount shall be absolute and

32









 








unconditional and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such L/C Participant may have against the
Issuing Lender, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or
continuance of a Default or an Event of Default or the failure to satisfy any of the other
conditions specified in Section 5, (iii) any adverse change in the condition (financial or
otherwise) of the Borrower, (iv) any breach of this Agreement or any other Loan Document by the
Borrower, any other Borrower or any other L/C Participant or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of the foregoing.




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




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




     3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to reimburse the
Issuing Lender on (i) the Business Day on which the Borrower receives notice from the Issuing
Lender of a draft drawn on a Letter of Credit issued by the Issuing Lender and paid by the Issuing
Lender, if such notice is received on such Business Day prior to 10:00 A.M. or (ii) if



33









 







clause (i) above does not apply, the Business Day immediately following the day on which the
Borrower receives such notice, for the amount of (A) such draft so paid and (B) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in connection with such payment
which are obligations of the Borrower hereunder (the amounts described in the foregoing clauses (A)
and (B) in respect of any drawing, collectively, the “Payment Amount”). Each such payment
shall be made to the Issuing Lender at its address for notices specified herein in lawful money of
the United States of America and in immediately available funds. Interest shall be payable on each
Payment Amount from the date of the applicable drawing until payment in full at the rate set forth
in (i) until the second Business Day following the date of the applicable drawing, Section 2.11(b)
and (ii) thereafter, Section 2.11(c). Each drawing under any Letter of Credit shall (unless an
event of the type described in clause (i) or (ii) of Section 8(f) shall have occurred and be
continuing with respect to the Borrower, in which case the procedures specified in Section 3.4 for
funding by L/C Participants shall apply) constitute a request by the Borrower to the Administrative
Agent for a borrowing pursuant to Section 2.1 of ABR Loans (or, at the option of the Administrative
Agent and the Swingline Lender in their sole discretion, a borrowing pursuant to Section 2.4 of
Swingline Loans) in the amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the first date on which a borrowing of Revolving Loans (or, if applicable, Swingline
Loans) could be made, pursuant to Section 2.1 (or, if applicable, Section 2.4), if the
Administrative Agent had received a notice of such borrowing at the time the Administrative Agent
receives notice from the Issuing Lender of such drawing under such Letter of Credit.



     3.6 Obligations Absolute. The Borrower’s obligations under this Section 3 shall be
absolute and unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment that the Borrower may have or have had against any Issuing
Lender, any beneficiary of a Letter of Credit or any other Person. Without waiving any claim the
Borrower may assert against the Issuing Lender pursuant to Section 3.12, the Borrower also agrees
with the Issuing Lender that the Issuing Lender shall not be responsible for, and the Borrower’s
Reimbursement Obligations under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though such documents
shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among the
Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. No Issuing Lender shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit, except for errors or omissions found
by a final and nonappealable decision of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of the Issuing Lender. The Borrower agrees that any
action taken or omitted by the Issuing Lender under or in connection with any Letter of Credit
issued by it or the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards or care specified in the Uniform Commercial
Code of the State of Minnesota, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower.



     3.7 Letter of Credit Payments. If any draft shall be presented for payment under any
Letter of Credit, the Issuing Lender shall promptly notify the Borrower and the Administrative
Agent of the date and amount thereof. The responsibility of the Issuing Lender to the Borrower



34









 







in connection with any draft presented for payment under any Letter of Credit, in addition to
any payment obligation expressly provided for in such Letter of Credit issued by the Issuing
Lender, shall be limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment appear on their face to be in conformity
with such Letter of Credit.



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



     3.9 Actions of Issuing Lender. The Issuing Lender shall be entitled to rely, and
shall be fully protected in relying, upon any draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it in good faith 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, independent accountants and other experts selected by the Issuing Lender. The
Issuing Lender shall be fully justified in failing or refusing to take any action under this
Agreement unless it shall first have received such advice or concurrence of the Required Lenders as
it reasonably deems appropriate or it shall first be indemnified to its reasonable 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. Notwithstanding any other provision of this Section
3.9, the Issuing Lender shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Required Lenders, and such request
and any action taken or failure to act pursuant thereto shall be binding upon the Lenders and any
future holders of a participation in any Letter of Credit.



     3.10 Borrower’s Indemnification. The Borrower hereby agrees to indemnify and hold
harmless each Lender, the Issuing Lender and the Administrative Agent, and their respective
directors, officers, agents and employees from and against any and all claims and damages, losses,
liabilities, costs or expenses which such Lender, the Issuing Lender or the Administrative Agent
may incur (or which may be claimed against such Lender, the Issuing Lender or the Administrative
Agent by any Person whatsoever) by reason of or in connection with the issuance, execution and
delivery or transfer of or payment or failure to pay under any Letter of Credit or any actual or
proposed use of any Letter of Credit, including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the Issuing Lender may incur by reason of or in connection
with (i) the failure of any other Lender to fulfill or comply with its obligations to the Issuing
Lender hereunder (but nothing herein contained shall affect any rights the Borrower may have
against any defaulting Lender) or (ii) by reason of or on account of the Issuing Lender issuing any
Letter of Credit which specifies that the term “Beneficiary” included therein includes any
successor by operation of law of the named Beneficiary, but which Letter of Credit does not require
that any drawing by any such successor Beneficiary be accompanied by a copy of a legal document,
satisfactory to the Issuing Lender, evidencing the appointment of such successor Beneficiary;
provided that the Borrower shall not be required to indemnify any Lender, any Issuing
Lender or the Administrative Agent for any claims, damages, losses, liabilities, costs or expenses
to the extent, but only to the extent, caused by (x) the willful misconduct or gross negligence of
the Issuing Lender in determining whether a request presented under any Letter of Credit complied
with the terms of such Letter of Credit or (y) the Issuing Lender’s failure to pay



35









 







under any Letter of Credit after the presentation to it of a request strictly complying with
the terms and conditions of such Letter of Credit. Nothing in this Section is intended to limit
the obligations of the Borrower under any other provision of this Agreement.



     3.11 Lenders’ Indemnification. Each Lender shall, ratably in accordance with its
Percentage, indemnify the Issuing Lender, its affiliates and their respective directors, officers,
agents and employees (to the extent not reimbursed by the Borrower) against any cost, expense
(including reasonable counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees’ gross negligence or willful misconduct or the Issuing
Lender’s failure to pay under any Letter of Credit after the presentation to it of a request
strictly complying with the terms and conditions of the Letter of Credit) that such indemnitees may
suffer or incur in connection with this Section or any action taken or omitted by such indemnitees
hereunder.



     3.12 Claims Against L/C Issuer. The Borrower will have a claim against the L/C
Issuer, and the L/C Issuer will be liable to the Borrower, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the
Borrower proves were caused by the L/C Issuer’s willful misconduct or gross negligence or the L/C
Issuer’s payment or failure to pay under any Letter of Credit that is in violation of Article 5 of
the UCC.



SECTION 4. REPRESENTATIONS AND WARRANTIES




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



     4.1 Financial Condition. The audited consolidated balance sheets of the Borrower and
its consolidated Subsidiaries as of September 30, 2005 and 2006, and the related consolidated
statements of income and cash flows for the fiscal years ended September 30, 2004, 2005 and 2006,
reported on by KPMG LLP or Deloitte & Touche LLP, as applicable, and the unaudited consolidated
balance sheets of the Borrower and its consolidated Subsidiaries as of March 31, 2006 and 2007, and
the related consolidated statements of income and cash flows for six months ended March 31, 2006
and 2007 present fairly the consolidated financial condition of the Borrower and its consolidated
Subsidiaries as of such date, and the consolidated results of its operations and its consolidated
cash flows for the fiscal period then ended. All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved. Neither the Borrower nor any of its Subsidiaries has any
Guarantee Obligation, contingent liabilities, liability for taxes, any long-term leases, unusual
forward or long-term commitments, including any Swap Agreement, or other outstanding obligations
(including obligations in respect of off-balance sheet transactions) which, in any such case, are
material in the aggregate, except as disclosed in the most recent financial statements referred to
in this paragraph or in the financial statements delivered to the Administrative Agent pursuant to
Section 6.1.



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     4.2 No Material Adverse Effect. Since September 30, 2006, there has been no
development or event, including any development or event with respect to the Disclosed Litigation
or any matter disclosed in the Specified Exchange Act Filings, that has had or could reasonably be
expected to have a Material Adverse Effect.



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



     4.4 Power; Authorization; Enforceable Obligations. The Borrower has the corporate
power and corporate authority to make, deliver and perform the Loan Documents and to obtain
Extensions of Credit. The Borrower has taken all necessary corporate action to authorize the
execution, delivery and performance of the Loan Documents and to authorize the extensions of credit
on the terms and conditions of this Agreement. No consent or authorization of, filing with, notice
to or other act by or in respect of, any Governmental Authority or any other Person is required in
connection with the Extensions of Credit or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except consents, authorizations,
filings and notices which have been obtained or made and are in full force and effect. This
Agreement has been, and each other Loan Document upon execution and delivery will be, duly executed
and delivered. This Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of the Borrower, enforceable against the Borrower
in accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is sought by proceedings
in equity or at law).



     4.5 No Legal Bar. The execution, delivery and performance of this Agreement and the
other Loan Documents, the issuance of Letters of Credit, the Extensions of Credit and the use of
the proceeds thereof will not violate in any material respect any Requirement of Law applicable to
the Borrower or any of its Subsidiaries or any Contractual Obligation of the Borrower or any of its
Subsidiaries and will not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or any such Contractual
Obligation. No Requirement of Law or Contractual Obligation applicable to the Borrower or any of
its Subsidiaries could be expected, either individually or in the aggregate, to have a Material
Adverse Effect.



     4.6 Litigation. Except as set forth in Item 1 of Part II of the Borrower’s quarterly
report on Form 10-Q for the fiscal quarter ended March 31, 2007 or Item 3 of Part I of the
Borrower’s annual report on Form 10-K for the fiscal year ended September 30, 2006 (the
“Disclosed Litigation”), no litigation, investigation or proceeding of or before any
arbitrator or



37









 







Governmental Authority is pending or, to the knowledge of the Borrower, threatened by or
against the Borrower or any of its Subsidiaries or against any of their respective properties or
revenues with respect to any of the Loan Documents or that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect.



     4.7 No Default. Neither the Borrower nor any of its Subsidiaries is in default under
or with respect to any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.



     4.8 Taxes. The Borrower and each of its Subsidiaries has filed or caused to be filed
all Federal and state returns of income and franchise taxes imposed in lieu of net income taxes and
all other material tax returns that are required to be filed and has paid all taxes shown to be due
and payable on said returns or with respect to any claims or assessments for taxes made against it
or any of its property by any Governmental Authority (other than any amounts the validity of which
are currently being contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower or any of its
Subsidiaries, as applicable). No material tax Liens have been filed against the Borrower or any of
its Subsidiaries other than (a) Liens for taxes which are not delinquent or (b) Liens for taxes
which are being contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the Borrower or any of its
Subsidiaries, as applicable.



     4.9 Federal Regulations. No part of the proceeds of any Loans, and no other
Extensions of Credit, will be used for “buying” or “carrying” any “margin stock” within the
respective meanings of each of the quoted terms under Regulation U as now and from time to time
hereafter in effect or for any purpose that violates the provisions of the Regulations of the
Board.



     4.10 ERISA. Neither a Reportable Event nor an “accumulated funding deficiency”
(within the meaning of Section 412 of the Code or Section 302 of ERISA) has occurred with respect
to any Plan, and each Plan has complied in all material respects with the applicable provisions of
ERISA and the Code. No termination of a Single Employer Plan has occurred that is a distress
termination under Section 41041 of ERISA, a termination at the instigation of the PBGC or has
resulted in, or could reasonably be likely to result in, a material liability to the Company, and
no Lien in favor of the PBGC or a Plan has arisen. The present value of all accrued benefits under
each Single Employer Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is made or deemed made,
exceed the value of the assets of such Plan allocable to such accrued benefits by a material
amount. Neither the Borrower nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan that has resulted or could reasonably be expected to result
in a material liability under ERISA, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any material liability under ERISA if the Borrower or any such Commonly
Controlled Entity were to withdraw completely from all Multiemployer Plans as of the valuation date
most closely preceding the date on which this representation is made or deemed made. To the
Borrower’s knowledge, no such Multiemployer Plan is in Reorganization or Insolvent.



38









 





     4.11 Investment Company Act; Other Regulations. The Borrower is not an “investment
company”, or a company “controlled” by an “investment company”, within the meaning of the
Investment Company Act of 1940, as amended. The Borrower is not subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness under this Agreement.



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



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




          (b) neither the Borrower nor any of its Subsidiaries has received or is aware of any notice of
violation, alleged violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any of the Properties or
the business operated by the Borrower and its Subsidiaries (the “Business”), nor does the
Borrower have knowledge or reason to believe that any such notice will be received or is being
threatened;




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




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




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




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




39









 








          (g) neither the Borrower nor any of its Subsidiaries has assumed any liability of any other
Person under Environmental Laws.




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



     4.14 Regulatory Matters. The Borrower is not subject to regulation under the
Investment Company Act of 1940, the Federal Power Act, the Interstate Commerce Act, any state
public utilities code or to any other Requirement of Law (other than Regulation X of the Board)
limiting its ability to incur Indebtedness.



     4.15 Burdensome Contractual Obligations, Etc. Neither the Borrower or any of its
Subsidiaries nor any of their respective properties are subject to any Contractual Obligation or
Requirement of Law which, either individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect.



     4.16 Foreign Assets Control, Etc.



          (a) The Borrower (i) is not, nor is controlled by, a Designated Person; (ii) to its knowledge,
has not received funds or other property from a Designated Person; and (iii) is not in breach, or
to its knowledge, the subject, of any action or investigation under any Anti-Terrorism Law. To its
knowledge, (i) the Borrower does not engage nor will it knowingly engage in any dealings or
transactions with any Designated Person, and (ii) the Borrower is not nor will it knowingly be
otherwise associated, with any Designated Person. The Company and each Subsidiary are in
compliance, in all material respects, with the Patriot Act. The Company has taken reasonable
measures to ensure compliance with the Anti-Terrorism Laws.




          (b) No portion of the proceeds of any Extension of Credit made hereunder has been or will be
used, directly or indirectly for, and no fee, commission, rebate or other value has been or will be
paid to, or for the benefit of, any governmental official, political party, official of

40









 








a political party or any other Person acting in an official capacity in violation of any
applicable law, including the U.S. Foreign Corrupt Practices Act of 1977, as amended.




SECTION 5. CONDITIONS PRECEDENT




     5.1 Conditions to the Effective Date. The occurrence of the Effective Date is subject
to the satisfaction of the following conditions precedent:



          (a) Agreement. The Administrative Agent shall have received this Agreement, executed
and delivered by the Administrative Agent, the Borrower and each Person listed on Schedule
1.1A.




          (b) Financial Statements. The Lenders shall have received the financial statements
described in Section 4.1.




          (c) Consents and Approvals. All governmental and third party consents and approvals
necessary in connection with this Agreement and the other Loan Documents and the transactions
contemplated hereby shall have been obtained and be in full force and effect; and the
Administrative Agent shall have received a certificate executed by two Responsible Officers to the
foregoing effect.




          (d) Fees.




               (i) The Lenders under the Existing Credit Agreement shall have received all facility fees and
other fees required to be paid under the Existing Credit Agreement for the period from July 1, 2007
through the Effective Date.



               (ii) The Lenders, the Joint Lead Arrangers and the Administrative Agent shall have received
all fees required to be paid and all expenses for which invoices have been presented (including the
reasonable fees and expenses of legal counsel and the fees and expenses payable pursuant to the
Administrative Agent’s Fee Letter), on or before the Effective Date.



          (e) Secretary’s Certificate; Certified Certificate of Incorporation; Closing Certificate;
Good Standing Certificate. The Administrative Agent shall have received (i) a secretary’s
certificate of the Borrower, dated the Effective Date, substantially in the form of Exhibit F-1,
with appropriate insertions and attachments, including the certificate of incorporation of the
Borrower certified by the Delaware Secretary of State, (ii) a closing certificate of the Borrower,
dated the Effective Date, substantially in the form of Exhibit F-2, and (iii) a good standing
certificate for the Borrower from the Delaware Secretary of State.




          (f) Legal Opinion. The Administrative Agent shall have received the legal opinion of
Faegre & Benson, special counsel on behalf of the Borrower, substantially in the form of Exhibit H.




          (g) Representations and Warranties. Each of the representations and warranties made
by the Borrower in this Agreement that does not contain a materiality qualification shall be true
and correct in all material respects on and as of the Effective Date, and

41









 








each of the representations and warranties made by the Borrower in this Agreement that
contains a materiality qualification shall be true and correct on and as of the Effective Date (or,
to the extent such representations and warranties specifically relate to an earlier date, that such
representations and warranties were true and correct in all material respects, or true and correct,
as the case may be, as of such earlier date).




          (h) Compliance Certificate. A certificate duly executed by two Responsible Officers
containing all information and calculations reasonably necessary to establish the Total Leverage
Ratio as of March 31, 2007, after giving pro forma effect for any Credit Event occurring between
April 1, 2007 and the Effective Date.




          (i) No Default. No Default or Event of Default shall have occurred and be continuing.




     5.2 Conditions to Each Credit Event. The agreement of each Lender to make any Loan or
to issue or extend the expiry date under, or participate in, a Letter of Credit (other than the
extension of a Letter of Credit pursuant to the evergreen provisions therein) (each, a “Credit
Event”), including the Issuing Lender to issue a Letter of Credit, on any date (including any
Credit Event to occur on the Effective Date) is subject to the satisfaction of the following
conditions precedent:



          (a) Satisfaction of Conditions Precedent in Section 5.1. The conditions precedent set
forth in Section 5.1 shall have been satisfied or waived in accordance with this Agreement as of
the Effective Date.




          (b) Representations and Warranties. Each of the representations and warranties made
by the Borrower in this Agreement that does not contain a materiality qualification shall be true
and correct in all material respects on and as of the date of such Credit Event as if made on and
as of such date, and each of the representations and warranties made by the Borrower in this
Agreement that contains a materiality qualification shall be true and correct on and as of such
date (or, to the extent such representations and warranties specifically relate to an earlier date,
that such representations and warranties were true and correct in all material respects, or true
and correct, as the case may be, as of such earlier date).




          (c) Material Adverse Change. Since September 30, 2006, there has been no material
adverse change in the business, assets, results of operations or condition (financial or other) of
the Borrower and its Subsidiaries, taken as a whole.




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



Each borrowing of Loans hereunder, and each request by the Borrower for the issuance of or
extension of an expiry date under a Letter of Credit hereunder (other than the extension of a
Letter of Credit pursuant to the evergreen provisions therein), shall constitute a representation
and warranty by the Borrower as of the date of such Credit Event that the conditions contained in
this Section 5.2 have been satisfied.




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SECTION 6. AFFIRMATIVE COVENANTS




          The Borrower hereby agrees that, so long as the Commitments remain in effect or any Obligation
remains unpaid or unperformed, the Borrower shall and shall cause its Subsidiaries to:




     6.1 Financial Statements. Furnish to the Administrative Agent, and the Administrative
Agent shall deliver to each Lender via Intralinks or any other method reasonably acceptable to the
Administrative Agent:



          (a) as soon as available, but in any event within the earlier of (i) 90 days after the end of
each fiscal year of the Borrower or (ii) five Business Days after the filing of the following
financial statements with the SEC, a copy of the audited consolidated balance sheet of the Borrower
and its consolidated Subsidiaries as at the end of such year and the related audited consolidated
statements of income, statements of stockholders’ equity and comprehensive income and cash flows
for such year, setting forth in each case in comparative form the figures for the previous year,
accompanied by the unqualified opinion of Deloitte & Touche LLP or other independent certified
public accountants of nationally recognized standing; and




          (b) as soon as available, but in any event within the earlier of (i) 45 days after the end of
each of the first three quarterly periods of each fiscal year of the Borrower or (ii) five Business
Days after the filing of the following financial statements with the SEC, the unaudited
consolidated balance sheet of the Borrower and its consolidated Subsidiaries as at the end of such
quarter, the related unaudited consolidated statements of income for such quarter and the portion
of the fiscal year through the end of such quarter, statement of stockholders’ equity and
comprehensive income as at the end of such quarter and cash flows for the portion of the fiscal
year through the end of such quarter, setting forth in each case (other than the statement of
stockholders’ equity and comprehensive income) in comparative form the figures for the previous
year, certified by two Responsible Officers as being fairly stated in all material respects
(subject to normal year-end audit adjustments).



All such financial statements shall be complete and correct in all material respects and shall be
prepared in reasonable detail and in accordance with GAAP applied consistently throughout the
periods reflected therein and with prior periods. All financial statements and reports referred to
in Section 6.1(a) and (b) shall be deemed to have delivered upon the filing of such financial
statements and reports by the Borrower through the SEC’s EDGAR system or publication by the
Borrower of such financial statements and reports on its website and the receipt by the
Administrative Agent of electronic notice from the Borrower with a link to such financial
statements and reports.




     6.2 Certificates; Other Information. Furnish to the Administrative Agent and each
Lender:



43









 





          (a) concurrently with the delivery of any financial statements pursuant to Section 6.1, (i) a
certificate executed by two Responsible Officers stating that such Responsible Officers have
obtained no knowledge of any Default or Event of Default except as specified in such certificate
and (ii) a Compliance Certificate, substantially in the form of Exhibit E, containing all
information and calculations reasonably necessary for determining compliance by the Borrower with
the provisions of this Agreement referred to therein as of the last day of the fiscal quarter or
fiscal year of the Borrower, as the case may be;




          (b) (i) within five days after the same are sent, copies of all financial statements and
reports that the Borrower sends to the holders of any class of its debt securities or public equity
securities, and (ii) within five days after the same are filed, copies of all financial statements
and reports that the Borrower may make to, or file with, the SEC or any national securities
exchange or national market, provided that, such financial statements and reports referred to in
clauses (i) and (ii) shall be deemed to have delivered upon the filing of such financial statements
and reports by the Borrower through the SEC’s EDGAR system or publication by the Borrower of such
financial statements and reports on its website; and




          (c) promptly, such additional financial and other information as the Joint Lead Arrangers may
from time to time reasonably request.




     6.3 Payment of Taxes. Pay all taxes due and payable by or any other tax assessments
made against the Borrower or any of its Subsidiaries or any of their respective property by any
Governmental Authority (other than any amounts the validity of which are currently being contested
in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP
have been provided on the books of the Borrower or any of its Subsidiaries, as applicable).



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



     6.5 Maintenance of Property; Insurance. (a) Keep all property useful and necessary in
its business in good working order and condition, ordinary wear and tear excepted, and (b) maintain
with financially sound and reputable insurance companies insurance on its property in at least such
amounts and against at least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business of comparable size and financial strength and
owning similar properties in the same general areas in which the Borrower operates, which may
include self-insurance, if determined by the Borrower to be reasonably prudent.



     6.6 Inspection of Property; Books and Records; Discussions. Keep proper books of
records and account in which full, true and correct entries in conformity with GAAP and all



44









 







Requirements of Law shall be made of all dealings and transactions in relation to its business
and activities and (i) permit representatives of the Administrative Agent and any Lender (but no
more than once annually in case of Lenders unless and Event of Default shall have occurred and be
continuing) to visit and inspect any of its and its Subsidiaries’ properties and examine and make
abstracts from any of its books and records at any reasonable time and to discuss the business,
operations, properties and financial and other condition of the Borrower and its Subsidiaries with
officers and employees of the Borrower and its Subsidiaries and (ii) use commercially reasonable
efforts to provide for the Lenders to meet with the independent certified public accountants of the
Borrower and its Subsidiaries to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries.



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



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




          (b) any litigation or proceeding to which the Borrower or any of its Subsidiaries is a party
(i) in which the amount involved is $25,000,000 or more and not covered by insurance, (ii) in which
injunctive or similar relief is sought, (iii) which relates to any Loan Document or (iv) seeks to
prohibit the ownership or operation by the Borrower or any of its Subsidiaries of all or a material
portion of their respective businesses or assets;




          (c) the following events, as soon as possible and in any event within 30 days after the
Borrower knows or has reason to know thereof: (i) the occurrence of any Reportable Event with
respect to any Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination, Reorganization or
Insolvency of, any Multiemployer Plan or (ii) the institution of proceedings or the taking of any
other action by the PBGC or the Borrower or any Commonly Controlled Entity or any Multiemployer
Plan with respect to the withdrawal from, or the termination, Reorganization or Insolvency of, any
Plan; and




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



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




     6.8 Maintenance of Licenses, Etc. Maintain in full force and effect any
authorization, consent, license or approval of any Governmental Authority necessary for the conduct
of the Borrower’s business as now conducted by it or necessary in connection with this Agreement,
except to the extent the failure to do so could not reasonably be expected to have a Material
Adverse Effect.



     6.9 More Favorable Debt Covenants. Promptly advise the Administrative Agent and the
Lenders if at any time after the date of this Agreement the Borrower or any of its Subsidiaries
shall enter into or be a party to any instrument or agreement relating to or amending any
provisions applicable to any of its Indebtedness which exceeds $50,000,000. Thereupon, if the
Administrative Agent or the Required Lenders shall request, upon notice to the Borrower, the



45









 







Administrative Agent and the Lenders shall enter into an amendment to this Agreement or an
additional agreement (as the Administrative Agent may request), providing for substantially the
same covenants and defaults as those provided for in such instrument or agreement to the extent
required and as may be selected by the Administrative Agent.



     6.10 Use of Proceeds. Only use the proceeds of the Extensions of Credit to: (a)
refinance certain debt outstanding, including the debt under the Convertible Notes, (b) finance
Permitted Acquisitions, (c) repurchase shares of the Borrower’s Capital Stock in accordance with
applicable legal requirements and (d) provide for the working capital needs and general corporate
purpose needs of the Borrower and its Subsidiaries.



SECTION 7. NEGATIVE COVENANTS




          The Borrower hereby agrees that, so long as the Commitments remain in effect or any Obligation
remains unpaid or unperformed:




     7.1 Total Leverage Ratio. The Borrower shall not permit the Total Leverage Ratio on
the last day of any fiscal quarter to exceed 3.00 to 1.00.



     7.2 Fixed Charge Coverage Ratio. The Borrower shall not permit the Fixed Charge
Coverage Ratio on the last day of any fiscal quarter to be less than 2.50 to 1.00.



     7.3 Change in Business. The Borrower shall not and shall not permit its Subsidiaries
to engage, either directly or indirectly through Affiliates, in any business substantially
different from the business of the Borrower or the applicable Subsidiary as of the Initial
Effective Date; provided, however, that the Borrower or any of its Subsidiaries may (a) form or
acquire an Industrial Loan Corporation and (b) act as a broker, agent or act in another similar
capacity for third party providers of financial product or consumers seeking financial products.



     7.4 Mergers, Acquisitions, Etc. The Borrower shall not and shall not permit its
Subsidiaries to consolidate with or merge into any other Person or permit any other Person to merge
into it, acquire any Person as a new Subsidiary, sell all or substantially all of its assets or
acquire all or substantially all of the assets of any other Person, except for the following (each,
a “Permitted Acquisition”):



          (a) the Borrower and its wholly-owned Subsidiaries may merge with each other and the
Borrower’s wholly-owned Subsidiaries may sell all or substantially all of their assets to each
other, provided that in any such merger involving the Borrower, the Borrower is the surviving
Person; and




          (b) the Borrower or any of its Subsidiaries may acquire (by merger or otherwise) any Person as
a new Subsidiary or acquire all or substantially all the assets of any other Person (each, a
“Proposed Target”); provided that:




               (i) no Default or Event of Default exists or will result after giving effect to any such
acquisition;



46









 





               (ii) the Proposed Target is engaged in a business or activity reasonably related to the
business of the Borrower and its Subsidiaries (for purposes hereof, the operation of an Industrial
Loan Corporation shall be deemed reasonably related to the business of the Borrower and its
Subsidiaries);



               (iii) after giving effect to such acquisition, the Proposed Target shall be owned directly by
the Borrower or shall become a wholly-owned Subsidiary, directly or indirectly, of the Borrower;



               (iv) on a pro forma basis, as if the Proposed Target had been a Subsidiary of the Borrower or
owned by the Borrower at the time the most recent Compliance Certificate was delivered to the
Administrative Agent, the Borrower would have been in compliance with the financial covenants set
forth in Section 7.1 and Section 7.2;



               (v) the Board of Directors or other governing body of the Proposed Target shall have approved
the acquisition and such acquisition shall be completed as a result of an arm’s length negotiation
(i.e., on a non-hostile basis); and



               (vi) after giving effect to such acquisition, (A) the pro forma Total Leverage Ratio shall be
less than 2.50 to 1.00 or (B) the total cash or other consideration paid or payable in cash or
other property (including any assumed Indebtedness) in connection with such acquisition and all
acquisitions during such fiscal year shall not exceed $100,000,000.



          (c) the Borrower or its Subsidiaries may enter into any other merger, consolidation,
acquisition of assets or sale of assets approved in writing by the Required Lenders.




     7.5 Liens. The Borrower shall not and shall not permit its Subsidiaries to create,
incur, assume or permit to exist any Lien on or with respect to any of its Property whether now
owned or hereafter acquired, except for the following:



          (a) Liens listed in Schedule 7.5(a) and existing on the date of this Agreement;




          (b) Liens for taxes or other governmental charges not at the time delinquent or thereafter
payable without penalty or being contested in good faith, provided that adequate reserves for the
payment thereof have been established in accordance with GAAP and no Property of the Borrower or
any of its Subsidiaries is subject to impending risk of loss or forfeiture by reason of nonpayment
of the obligations secured by such Liens;




          (c) Liens of carriers, warehousemen, mechanics, materialmen, vendors, and landlords and other
similar Liens imposed by applicable legal requirements incurred in the ordinary course of business
or are being contested in good faith, provided that adequate reserves for the payment thereof have
been established in accordance with GAAP and no Property of the Borrower or any of its Subsidiaries
is subject to impending risk of loss or forfeiture by reason of nonpayment of the obligations
secured by such Liens;




          (d) Deposits under workers’ compensation, unemployment insurance and social security laws or
to secure the performance of bids, tenders, contracts (other than for the repayment of borrowed
money) or leases, or to secure statutory obligations of surety or appeal




47









 




bonds or to secure indemnity, performance or other similar bonds in the ordinary course of
business;




          (e) Zoning restrictions, easements, rights-of-way, title irregularities and other similar
encumbrances, which alone or in the aggregate are not substantial in amount and do not materially
detract from the value of the Property subject thereto or interfere with the ordinary conduct of
the business of the Borrower or any of its Subsidiaries;




          (f) Liens incurred in connection with the extension, renewal or refinancing of the
Indebtedness secured by the Liens described in clauses (a) and (e) above, provided that any
extension, renewal or replacement Lien (i) is limited to the property covered by the existing Lien
and (ii) in the case of Liens securing Indebtedness described in clause (a), secures Indebtedness
which is no greater in amount and has material terms no less favorable to the Lenders than the
Indebtedness secured by the existing Lien;




          (g) Any attachment or judgment Lien not constituting an Event of Default;




          (h) Banker’s Liens, rights of setoff and similar Liens with respect to cash and Marketable
Securities on deposit in one or more bank or securities accounts in the ordinary course of
business; and




          (i) Liens securing other Indebtedness in aggregate principal amount not exceeding 5% of the
stockholders’ equity of the Borrower and its Subsidiaries (determined on a consolidated basis
without duplication in accordance with GAAP) as shown on the most recent balance sheet delivered to
the Administrative Agent in accordance with Section 6.1.




     7.6 Subsidiary Debt. The Borrower shall not permit its Subsidiaries to create, incur,
assume or permit to exist any Indebtedness other than (i) Indebtedness owing to the Borrower or
another Subsidiary, and (ii) other Indebtedness in an aggregate principal amount not exceeding 5%
of the stockholders’ equity of the Borrower and its Subsidiaries (determined on a consolidated
basis without duplication in accordance with GAAP) as shown on the most recent balance sheet
delivered to the Administrative Agent in accordance with Section 6.1.



     7.7 Distributions. The Borrower shall not and shall not permit its Subsidiaries to
reorganize, recapitalize or make any Distributions or set apart any funds for any such purpose,
except that (a) any wholly-owned Subsidiary may make Distributions to the Borrower or another
wholly-owned Subsidiary, and (b) the Borrower and its Subsidiaries may make a Distribution or set
apart funds for such purpose if (i) no Default or Event of Default exists or will result after
giving effect to any such Distribution and (ii) on a pro forma basis, as if the Distribution has
been made, or the funds were set apart for such purpose, at the time the most recent Compliance
Certificate was delivered to the Administrative Agent, the Borrower would have been in compliance
with the financial covenants set forth in Section 7.1 and Section 7.2.



     7.8 Transactions With Affiliates. The Borrower shall not and shall not permit its
Subsidiaries to enter into any Contractual Obligation with any Affiliate or engage in any other
transaction with any Affiliate except upon terms at least as favorable to the Borrower or such
Subsidiary, as applicable, as an arms-length transaction with unaffiliated Persons.



48









 





     7.9 Subsidiary Restrictions. The Borrower shall not and shall not permit its
Subsidiaries to enter into, or be otherwise subject to, any Contractual Obligation (including its
charter documents) which limits the amount of or otherwise imposes restrictions on (a) the payment
of Distributions by any Subsidiary to the Borrower or any other Subsidiary, (b) the payment by any
Subsidiary of any Indebtedness owed to the Borrower or any other Subsidiary, (c) the making of
loans or advances by any Subsidiary to the Borrower or any other Subsidiary, (d) the transfer by
any Subsidiary of its property to the Borrower or any other Subsidiary, or (e) the merger or
consolidation of any Subsidiary with or into the Borrower or any other Subsidiary; provided that
(i) the foregoing shall not apply to restrictions and conditions imposed by applicable laws or by
this Agreement which (taken as a whole) could reasonably be expected not to have a Material Adverse
Effect, (ii) the foregoing shall not apply to customary restrictions and conditions contained in
agreements relating to the sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is not prohibited
hereunder, (iii) clause (d) of the foregoing shall not apply to customary provisions in leases and
other contracts restricting the assignment thereof, and (iv) the foregoing shall not apply to (A)
any Contractual Obligation in effect on the date hereof or that governs any Indebtedness, Capital
Stock or assets of a Person acquired by a Borrower or any Subsidiary as in effect on the date of
such acquisition (except to the extent such Contractual Obligation was created or such Indebtedness
was incurred in connection with or in contemplation of such acquisition, which limitation or
restriction is not applicable to any Person, or the assets of any Person, other than the Person, or
the assets of the Person, so acquired, provided, that in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Agreement to be incurred), (B) customary provisions
in joint venture agreements and other similar instruments relating solely to the securities, assets
and revenues of such joint venture, and (C) restrictions on deposits or minimum net worth
requirements imposed under contracts entered into in the ordinary course of business.



SECTION 8. EVENTS OF DEFAULT




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




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




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




          (c) the Borrower shall default in the observance or performance of any agreement contained in
Section 6.4, Section 6.7(a), Section 6.9 or Section 7 of this Agreement; or




49









 








          (d) the Borrower shall default in the observance or performance of any other agreement
contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a)
through (c) of this Section 8), and such default shall continue unremedied for a period of 20 days
after the date of such default; or




          (e) the Borrower or any of its Subsidiaries shall (i) default in making any payment of any
principal of or interest on any Indebtedness (including any Guarantee Obligation, but excluding the
Loans) beyond the period of grace, if any, provided in the instrument or agreement under which such
Indebtedness was created; or (ii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or condition exist, the
effect of which default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder or beneficiary) to
cause (or has caused), with the giving of notice if required, such Indebtedness to become due prior
to its stated maturity or (in the case of any such Indebtedness constituting a Guarantee
Obligation) to become payable; provided, that a default, event or condition described in
clause (i) or (ii) of this paragraph (e) shall not at any time constitute an Event of Default
unless, at such time, one or more defaults, events or conditions of the type described in clauses
(i) or (ii) of this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate $25,000,000; or




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




          (g) (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Plan, (ii) any “accumulated funding deficiency”
(as defined in Section 302 of ERISA), whether or not waived, shall exist




50









 




with respect to any Plan or any Lien in favor of the PBGC or a Plan shall arise on the assets
of the Borrower or any of its Subsidiaries or any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is, in the reasonable
opinion of the Required Lenders, likely to result in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any of its Subsidiaries shall, or in the reasonable opinion of the Required
Lenders is likely to, incur any liability in connection with a withdrawal from, or the Insolvency
or Reorganization of, a Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could, in the sole judgment
of the Required Lenders, reasonably be expected to have a Material Adverse Effect; or




          (h) one or more judgments or decrees shall be entered against the Borrower or any of its
Subsidiaries involving in the aggregate a liability (not paid or, subject to customary deductibles,
fully covered by insurance as to which the relevant insurance company has not acknowledged
coverage) of $25,000,000 or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry thereof; or




          (i) the Borrower shall become a Designated Person; or




          (j) there shall have occurred a Change of Control.



then, and in any such event, (i) if such event is an Event of Default specified in paragraph (f)
above, automatically the Commitments shall immediately terminate and the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the other Loan Documents
(including all amounts of L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder) shall immediately become
due and payable, and (ii) if such event is any other Event of Default, either or both of the
following actions may be taken: (A) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower declare the Commitments to be terminated forthwith, whereupon the Commitments shall
immediately terminate; and (B) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the
Borrower, declare the Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented the documents
required thereunder) to be due and payable forthwith, whereupon the same shall immediately become
due and payable. With respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this paragraph, the Borrower
shall at such time deposit in a cash collateral account opened by the Administrative Agent an
amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit. Amounts
held in such cash collateral account shall be applied by the Administrative Agent to the payment of
drafts drawn under such Letters of Credit, and the unused portion thereof after all such Letters of


51









 






Credit shall have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After all such Letters
of Credit shall have expired or been fully drawn upon, all Reimbursement Obligations shall have
been satisfied and all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash collateral account shall
be returned to the Borrower (or such other Person as may be lawfully entitled thereto). Except as
expressly provided above in this Section 8, presentment, demand, protest and all other notices of
any kind are hereby expressly waived by the Borrower.




SECTION 9. THE AGENTS




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



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



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



52









 





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



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



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



53









 







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, property, condition
(financial or otherwise), prospects or creditworthiness of the Borrower or any of its affiliates
that 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 each 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 Percentages in effect on the date on
which indemnification is sought under this Section (or, if indemnification is sought after the date
upon which the Commitments shall have terminated and the Loans shall have been paid in full,
ratably in accordance with such Percentages immediately prior to such date), from and against any
and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (whether before or after the
payment of the Loans) be imposed on, incurred by or asserted against such Agent in any way relating
to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the transactions contemplated hereby
or thereby or any action taken or omitted by such Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements that are found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from such Agent’s gross negligence or willful misconduct. The
agreements in this Section 9.7 shall survive the repayment of the Loans and all other amounts
payable hereunder.



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



     9.9 Successor Administrative Agent. The Administrative Agent may resign as
Administrative Agent upon 10 days’ notice to the Lenders and the Borrower. If the Administrative
Agent shall resign as Administrative Agent under this Agreement and the other Loan Documents, then
the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 8(f) with respect to the Borrower
shall have occurred and be continuing) be subject to approval by the Borrower (which approval shall
not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term “Administrative Agent”
shall mean such successor agent effective upon such appointment and approval, and the former
Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the



54









 







Loans. If no successor agent has accepted appointment as Administrative Agent by the date
that is 10 days following a retiring Administrative Agent’s notice of resignation, the retiring
Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders
shall assume and perform all of the duties of the Administrative Agent hereunder until such time,
if any, as the Required Lenders appoint a successor agent as provided for above. After any
retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section
9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.



     9.10 Arrangers, Joint Bookrunners, Documentation Agents and Syndication Agent. None
of the Joint Lead Arrangers, Joint Bookrunners, Documentation Agents or the Syndication Agent shall
have any duties or responsibilities hereunder in its capacity as such.



SECTION 10. MISCELLANEOUS




     10.1 Amendments and Waivers. Neither this Agreement, any other Loan Document, nor any
terms hereof or thereof may be amended, supplemented or modified except in accordance with the
provisions of this Section 10.1. Except for any amendments to this Agreement pursuant to Section
6.9, which amendments shall only require the consent of the Borrower and the Administrative Agent,
the Required Lenders and the Borrower may, or, with the written consent of the Required Lenders,
the Administrative Agent and the Borrower may, from time to time, (a) enter into written
amendments, supplements or modifications hereto and to the other Loan Documents for the purpose of
adding any provisions to this Agreement or the other Loan Documents or changing in any manner the
rights of the Lenders or of the Borrower hereunder or thereunder or (b) waive, on such terms and
conditions as the Required Lenders or the Administrative Agent, as the case may be, may specify in
such instrument, any of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however, that no such
waiver and no such amendment, supplement or modification shall:



               (i) forgive the principal amount or extend the final scheduled date of maturity of any Loan,
extend the stated expiration date of any Letter of Credit beyond the Termination Date, reduce the
stated rate of any interest or fee payable hereunder (except in connection with the waiver of
applicability of any post-default increase in interest rates (which waiver shall be effective with
the consent of the Required Lenders)) or extend the scheduled date of any payment thereof, or
increase the amount or extend the expiration date of any Lender’s Commitment, in each case without
the written consent of each Lender directly affected thereby;



               (ii) eliminate or reduce the voting rights of any Lender under this Section 10.1 or Section
10.6(a)(i) without the written consent of such Lender;



               (iii) reduce any percentage specified in the definition of Required Lenders, consent to the
assignment or transfer by the Borrower of any of its rights and obligations under this Agreement
and the other Loan Documents, in each case without the written consent of all Lenders;



55









 





               (iv) amend, modify or waive any provision of Section 2.14 related to pro rata
treatment without the consent of each Lender directly affected thereby;



               (v) amend, modify or waive any provision of Section 9 without the written consent of the
Administrative Agent;



               (vi) amend, modify or waive any provision of Section 2.4 or 2.5 without the written consent of
the Swingline Lender; or



               (vii) amend, modify or waive any provision of Section 3 or any other provision affecting the
Issuing Lender without its written consent.


Any such waiver and any such amendment, supplement or modification shall apply equally to each of
the Lenders and shall be binding upon the Borrower, the Lenders, the Administrative Agent and all
future holders of the Loans. In the case of any waiver, the Borrower, the Lenders and the
Administrative Agent shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed to be cured and
not continuing; but no such waiver shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.




     10.2 Notices.



          (a) Except as otherwise provided herein, including without limitation Section 10.2(b), all
notices, requests and demands to or upon the respective parties hereto to be effective shall be in
writing (including by telecopy), and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made when delivered, or three Business Days after being deposited in the
mail, postage prepaid, or, in the case of telecopy notice, when received, addressed as follows in
the case of the Borrower and the Administrative Agent, and as set forth in an administrative
questionnaire delivered to the Administrative Agent in the case of the Lenders, or to such other
address as may be hereafter notified by the respective parties hereto:




	 	 	 
	Borrower:

	 	Fair Isaac Corporation
	 

	 	901 Marquette Avenue, Suite 3200
	 

	 	Minneapolis, Minnesota 55402-3232
	 

	 	Attention: Chief Financial Officer
	 

	 	Telecopy: (612) 758-5201
	 

	 	Telephone: (612) 758-5200
	 
	 	 
	With a copy to:

	 	Fair Isaac Corporation
	 

	 	901 Marquette Avenue, Suite 3200
	 

	 	Minneapolis, MN 55402-3232
	 

	 	Attention: General Counsel
	 

	 	Telecopy: (612) 758-6034
	 

	 	Telephone: (612) 758-5200
	 
	Administrative Agent, Issuing

	 	Wells Fargo Bank, National Association






56









 






	 	 	 
	Lender and Swingline Lender:

	 	MAC N9305-0187
	 

	 	18th Floor
	 

	 	90 S 7TH ST
	 

	 	Minneapolis, MN 55402-3903
	 

	 	Attention:
	 

	 	Telecopy: (612) 667-4144
	 

	 	Telephone: (612) 667-1602





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




          (b) Notices and other communications to the Administrative Agent, the Issuing Lender or the
Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Section 2 unless otherwise agreed by the Administrative Agent, the Issuing
Lender and each Lender. The Administrative Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications. Additionally, if the Administrative Agent agrees to accept a
notice pursuant to Section 2, including any notice of borrowing, notice of interest period
selection or notice of Revolving Loan conversion, made by e-mail transmission, such e-mail
transmission shall be binding on the Borrower whether or not written confirmation is sent by the
Borrower or requested by the Administrative Agent, and the Administrative Agent may act prior to
the receipt of any requested written confirmation, without any liability whatsoever, based upon
e-mail notice believed by the Administrative Agent in good faith to be from the Borrower or its
agents. The Administrative Agent’s records of the terms of any e-mail notice pursuant to Section 2
shall be conclusive on the Borrower in the absence of gross negligence or willful misconduct on the
part of the Administrative Agent in connection therewith.




          (c) The Borrower agrees that the Administrative Agent may make any material delivered by the
Borrower to the Administrative Agent, as well as any amendments, waivers, consents, and other
written information, documents, instruments and other materials relating to the Borrower or any of
its Subsidiaries, or any other materials or matters relating to this Agreement, the other Loan
Documents or any of the transactions contemplated hereby or thereby (collectively, the
“Communications”) available to the Lenders by posting such notices on an electronic
delivery system (which may be provided by the Administrative Agent, an Affiliate, or any Person
that is not an Affiliate of the Administrative Agent), such as IntraLinks, or a substantially
similar electronic system that requires passwords for access and takes other customary measures
with respect to confidentiality and security (the “Platform”). The Borrower acknowledges
that (i) the distribution of material through an electronic medium is not necessarily secure and
that there are confidentiality and other risks associated with such distribution, (ii) the Platform
is provided “as is” and “as available” and (iii) neither the Administrative Agent nor any of its
Affiliates represents or warrants the accuracy, completeness, timeliness, sufficiency or sequencing
of the Communications posted on the Platform. The Administrative Agent and its Affiliates
expressly disclaim with respect to the Platform any liability for errors in transmission, incorrect
or incomplete downloading, delays in posting or delivery, or problems accessing the

57









 








Communications posted on the Platform and any liability for any losses, costs, expenses or
liabilities that may be suffered or incurred in connection with the Platform, except to the extent
any of the foregoing liabilities are caused by the gross negligence or willful misconduct of the
Administrative Agent or any of its Affiliates. No warranty of any kind, express, implied or
statutory, including, without limitation, 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 the Administrative Agent or any of its Affiliates in connection with the Platform.




          (d) Each Lender agrees that notice to it (as provided in the next sentence) (a
“Notification”) specifying that any Communication has been posted to the Platform shall for
purposes of this Agreement constitute effective delivery to such Lender of such information,
documents or other materials comprising such Communication. Each Lender agrees (i) to notify, on
or before the date such Lender becomes a party to this Agreement, the Administrative Agent in
writing of such Lender’s e-mail address to which a Notification may be sent (and from time to time
thereafter to ensure that the Administrative Agent has on record an effective e-mail address for
such Lender) and (ii) that any Notification may be sent to such e-mail address.




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



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



     10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse the
Administrative Agent, the Issuing Lender and the Lenders for all their respective reasonable
out-of-pocket costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent and filing and recording fees and expenses,
with statements with respect to the foregoing to be submitted to the Borrower prior to the
Effective Date (in the case of amounts to be paid on the Effective Date) and from time to time
thereafter on a quarterly basis or such other periodic basis as the Administrative Agent shall deem
appropriate, (b) to pay or reimburse each Lender, the Issuing Lender and the Administrative Agent
for all its costs and expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other documents, including the
fees and disbursements of counsel to the Administrative Agent, the Lenders and the Issuing Lender,
(c) to pay, indemnify, and hold each Lender, the Issuing Lender and the Administrative Agent
harmless from, any and all recording and filing fees and any and all liabilities with respect to,
or resulting from any delay in paying, stamp, excise and



58









 







Other Taxes, if any, that may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any of the transactions contemplated by, or any
amendment, supplement or modification of, or any waiver or consent under or in respect of, this
Agreement, the other Loan Documents and any such other documents, and (d) to pay, indemnify, and
hold each Lender, the Issuing Lender and the Administrative Agent and their respective officers,
directors, employees, affiliates, agents and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever with
respect to the execution, delivery, enforcement and performance of this Agreement, the other Loan
Documents and any such other documents, including any of the foregoing relating to the use of
proceeds of the Loans or the violation of, noncompliance with or liability under, any Environmental
Law applicable to the operations of the Borrower and its Subsidiaries or any of the Properties and
the reasonable fees and expenses of counsel in connection with claims, actions or proceedings by
any Indemnitee against the Borrower under any Loan Document (all the foregoing in this clause (d),
collectively, the “Indemnified Liabilities”), provided, that the Borrower shall
have no obligation hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities resulted from the gross negligence or willful misconduct of
such Indemnitee. Without limiting the foregoing, and to the extent permitted by applicable law,
the Borrower agrees not to assert and to cause its Subsidiaries not to assert, and hereby waives
and agrees to cause its Subsidiaries to waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities, settlements, damages,
costs and expenses of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due under this Section
10.5 shall be payable not later than 10 days after written demand therefor. The agreements in this
Section 10.5 shall survive the repayment of the Loans and all other amounts payable hereunder.



     10.6 Successors and Assigns; Participations and Assignments.



          (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted hereby (including any
affiliate of the Issuing Lender that issues any Letter of Credit), except that (i) the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights
or obligations hereunder except in accordance with this Section 10.6.




          (b) (i) Subject to the conditions set forth in paragraph 10.6(b)(ii) below, any Lender
may assign to one or more assignees (each, an “Assignee”) all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitments and the Loans
at the time owing to it) with the prior written consent (such consent not to be unreasonably
withheld) of:




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



59









 





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



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



                    (A) except in the case of an assignment of the entire remaining amount of the assigning
Lender’s Commitments or Loans, the amount of the Commitments or Loans of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be less than
$10,000,000 unless each of the Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if an Event of Default has
occurred and is continuing;



                    (B) the parties to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Assumption, together with a processing and recordation fee of $3,500; and



                    (C) the Assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an
administrative questionnaire.



               (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) below, from
and after the effective date specified in each Assignment and Assumption the Assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.15, 2.16, 2.17 and 10.5 but shall be subject to the limitations set forth therein). Any
assignment or transfer by a Lender of rights or obligations under this Agreement that does not
comply with this Section 10.6 shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with paragraph (c) of this
Section.



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



60









 





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



          (c) (i) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell
participations to one or more banks or other entities (a “Participant”) in all or a portion
of such Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans owing to it); provided that (A) such Lender’s obligations under
this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under this Agreement. Any
agreement pursuant to which a Lender sells such a participation shall provide that such Lender
shall retain the sole right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of this Agreement; provided that such agreement may provide that such
Lender will not, without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly affected thereby pursuant to the
proviso to the second sentence of Section 10.1 and (2) directly affects such Participant. Subject
to paragraph (c)(ii) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section 10.6. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided such Participant shall be subject to Section 10.7 as
though it were a Lender.




               (ii) Notwithstanding anything to the contrary herein, a Participant shall not be entitled to
receive any greater payment under Section 2.15 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant, unless the sale of
the participation to such Participant is made with the Borrower’s prior written consent to such
greater payments. Any Participant that is a Non-U.S. Lender shall not be entitled to the benefits
of Section 2.16 unless such Participant complies with Section 2.16(d).



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




61









 








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




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




     10.7 Adjustments; Set-off.



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




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




62









 








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



     10.9 Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.



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



     10.11 Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF MINNESOTA.



     10.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and
unconditionally:



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




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




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




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




63









 








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




     10.13 Acknowledgments. The Borrower hereby acknowledges that:



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




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




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




     10.14 Confidentiality. Each of the Administrative Agent and each Lender agrees to
keep confidential in accordance with such party’s customary practices (and in any event in
compliance with applicable law regarding material non-public information) all non-public
information provided to it by the Borrower, the Administrative Agent or any Lender pursuant to or
in connection with this Agreement; provided that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to the Administrative
Agent, any other Lender or any affiliate thereof, (b) subject to an agreement to comply with the
provisions of this Section 10.14 or substantially equivalent provisions, to any actual or
prospective Transferee or any direct or indirect counterparty to any Swap Agreement (or any
professional advisor to such counterparty), (c) to its employees, directors, agents, attorneys,
accountants and other professional advisors or those of any of its affiliates (as long as such
attorneys, accountants and other professional advisors are subject to confidentiality requirements
substantially equivalent to this Section 10.14), (d) upon the request or demand of any Governmental
Authority, (e) in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) that has been publicly disclosed, (h) to
the National Association of Insurance Commissioners or any similar organization or any nationally
recognized rating agency that requires access to information about a Lender’s investment portfolio
in connection with ratings issued with respect to such Lender, or (i) in connection with the
exercise of any remedy hereunder or under any other Loan Document, provided that, in the
case of clauses (d), (e) and (f) of this Section 10.14, with the exception of disclosure to bank
regulatory authorities, the Borrower (to the extent legally permissible) shall be given prompt
prior notice so that it may seek a protective order or other appropriate remedy.



     10.15 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR



64









 







PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM
THEREIN.



     10.16 USA Patriot Act. Each 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 to identify the Borrower in accordance with the Act.



65









 





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



	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	FAIR ISAAC CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Charles M. Osborne	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Charles M. Osborne	 	 
	 

	 	 	 	Title: Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	WELLS FARGO BANK, NATIONAL	 	 
	 	 	ASSOCIATION, as Joint Lead Arranger,	 	 
	 	 	Administrative Agent, Issuing Lender and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ R. James Hancock	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: R. James Hancock	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, as Joint	 	 
	 	 	Lead Arranger, Syndication Agent and a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Michael J. Reymann	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Michael J. Reymann	 	 
	 

	 	 	 	Title: Senior Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	BANK OF AMERICA, N.A., as Documentation	 	 
	 	 	Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel R. Petrick	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Daniel R. Petrick	 	 
	 

	 	 	 	Title: Senior Vice President	 	 






[Signature Page to Fair Isaac Amended and Restated Credit Agreement]





 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, N.A., as	 	 
	 	 	Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Anthony Galea	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Anthony Galea	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	DEUTSCHE BANK AG, NEW YORK BRANCH,	 	 
	 	 	as Documentation Agent and as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Yvonne Tilden	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Yvonne Tilden	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	CITIBANK, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Rees Levinty	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Rees Levinty	 	 
	 

	 	 	 	Title: Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	HSBC BANK USA, N.A., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Molly Drennan	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Molly Drennan	 	 
	 

	 	 	 	Title: First Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	THE BANK OF TOYKO-MITSUBISHI UFJ,	 	 
	 	 	LTD., CHICAGO BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Matthew A. Ross	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Matthew A. Ross	 	 
	 

	 	 	 	Title: Vice President & Manager	 	 






[Signature Page to Fair Isaac Amended and Restated Credit Agreement]





 









 








	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	 	CHARTER ONE BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David Bently	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: David Bently	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	COMERICA BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Timothy O'Rourke	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Timothy O'Rourke	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	NATIONAL CITY BANK, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Derek R. Cook	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Derek R. Cook	 	 
	 

	 	 	 	Title: Vice President	 	 






[Signature Page to Fair Isaac Amended and Restated Credit Agreement]