Exhibit 10.1


 





 


AMENDED AND
RESTATED


CREDIT AGREEMENT


 


dated as of July 15,
2008


 


among


 


STANDARD PARKING
CORPORATION,


as the Company


 


THE VARIOUS
FINANCIAL INSTITUTIONS PARTY HERETO,


as Lenders,


 


BANK OF AMERICA,
N.A. as


Administrative Agent,


 


and


 


WELLS FARGO BANK,
N.A.,


as Syndication Agent




 





 


BANC OF AMERICA
SECURITIES LLC and


WELLS FARGO BANK, N.A.


as Joint Lead Arrangers


 


and


 


BANC OF AMERICA
SECURITIES LLC,


as Sole Book Manager


 

















 


TABLE OF CONTENTS


 


	
  SECTION 1 

  	
  DEFINITIONS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
  1.2

  	
  Other Interpretive Provisions

  	
  23

  
	
  SECTION 2 

  	
  COMMITMENTS OF THE LENDERS;
  BORROWING, CONVERSION AND LETTER OF CREDIT PROCEDURES

  	
  24

  
	
  2.1

  	
  Revolving Loans

  	
  24

  
	
  2.2

  	
  Borrowing Procedures

  	
  24

  
	
  2.3

  	
  Letters of Credit

  	
  26

  
	
   

  	
  2.3.1

  	
  Letter of Credit Commitment

  	
  26

  
	
   

  	
  2.3.2

  	
  Procedures

  	
  27

  
	
   

  	
  2.3.3

  	
  Drawings and Reimbursements;
  Funding of Participations

  	
  29

  
	
   

  	
  2.3.4

  	
  Repayment of Participations

  	
  31

  
	
   

  	
  2.3.5

  	
  Obligations Absolute

  	
  31

  
	
   

  	
  2.3.6

  	
  Role of Issuing Lender

  	
  32

  
	
   

  	
  2.3.7

  	
  Cash Collateral

  	
  33

  
	
   

  	
  2.3.8

  	
  Applicability of ISP

  	
  34

  
	
   

  	
  2.3.9

  	
  Conflict with Issuer Documents

  	
  34

  
	
   

  	
  2.3.10

  	
  Letters of Credit Issued for
  Subsidiaries

  	
  34

  
	
   

  	
  2.3.11

  	
  Letter of Credit Amounts

  	
  34

  
	
  2.4

  	
  Swing Line Facility

  	
  34

  
	
   

  	
  2.4.1

  	
  Swing Line Facility

  	
  34

  
	
   

  	
  2.4.2

  	
  Borrowing Procedures

  	
  35

  
	
   

  	
  2.4.3

  	
  Refinancing of Swing Line Loans

  	
  35

  
	
   

  	
  2.4.4

  	
  Repayment of Participations

  	
  37

  
	
   

  	
  2.4.5

  	
  Interest for Account of Swing Line
  Lender

  	
  37

  
	
   

  	
  2.4.6

  	
  Payments Directly to Swing Line
  Lender

  	
  37

  
	
  2.5

  	
  Commitments Several

  	
  37

  
	
  2.6

  	
  Certain Conditions

  	
  37

  
	
  SECTION 3 

  	
  EVIDENCING OF LOANS

  	
  38

  
	
  3.1

  	
  Notes

  	
  38

  
	
  3.2

  	
  Recordkeeping

  	
  38

  
	
  SECTION 4 

  	
  INTEREST

  	
  38

  
	
  4.1

  	
  Interest Rates

  	
  38

  
	
  4.2

  	
  Interest Payment Dates

  	
  39

  
	
  4.3

  	
  Setting and Notice of LIBOR Rates

  	
  39

  
	
  4.4

  	
  Computation of Interest

  	
  39

  
	
  SECTION 5 

  	
  FEES

  	
  40

  
	
  5.1

  	
  Non-Use Fee

  	
  40

  
	
  5.2

  	
  Letter of Credit Fees

  	
  40

  
	
  5.3

  	
  Administrative Agent’s Fees

  	
  41

  
	
  SECTION 6 

  	
  INCREASE, REDUCTION OR TERMINATION
  OF THE REVOLVING COMMITMENT; PREPAYMENTS

  	
  41

  
	
  6.1

  	
  Increase, Reduction or Termination of the Revolving Commitment

  	
  41

  
	
   

  	
  6.1.1

  	
  Increase of the Revolving
  Commitment

  	
  41

  
						



 


i

















 


	
   

  	
  6.1.2

  	
  Voluntary Reduction or Termination
  of the Revolving Commitment

  	
  42

  
	
   

  	
  6.1.3

  	
  All Reductions of the Revolving
  Commitment

  	
  42

  
	
  6.2

  	
  Repayments

  	
  42

  
	
   

  	
  6.2.1

  	
  Voluntary Repayments

  	
  42

  
	
   

  	
  6.2.2

  	
  Mandatory Repayments

  	
  42

  
	
  6.3

  	
  Manner of Repayments

  	
  43

  
	
   

  	
  6.3.1

  	
  Partial Repayments

  	
  43

  
	
  6.4

  	
  Final Repayment

  	
  43

  
	
   

  	
  6.4.1

  	
  Revolving Loans

  	
  43

  
	
  SECTION 7 MAKING AND PRORATION OF PAYMENTS;
  SETOFF; TAXES

  	
  44

  
	
  7.1

  	
  Making of Payments

  	
  44

  
	
  7.2

  	
  Application of Certain Payments

  	
  44

  
	
  7.3

  	
  Due Date Extension

  	
  44

  
	
  7.4

  	
  Setoff

  	
  44

  
	
  7.5

  	
  Proration of Payments

  	
  45

  
	
  7.6

  	
  Taxes

  	
  45

  
	
  SECTION 8 INCREASED COSTS; SPECIAL
  PROVISIONS FOR LIBOR LOANS

  	
  47

  
	
  8.1

  	
  Increased Costs

  	
  47

  
	
  8.2

  	
  Basis for Determining Interest Rate Inadequate or Unfair

  	
  48

  
	
  8.3

  	
  Changes in Law Rendering LIBOR Loans Unlawful

  	
  48

  
	
  8.4

  	
  Funding Losses

  	
  49

  
	
  8.5

  	
  Right of Lenders to Fund through Other Offices

  	
  49

  
	
  8.6

  	
  Discretion of Lenders as to Manner of Funding

  	
  49

  
	
  8.7

  	
  Mitigation of Circumstances; Replacement of Lenders

  	
  49

  
	
  8.8

  	
  Conclusiveness of Statements; Survival of Provisions

  	
  50

  
	
  SECTION 9 REPRESENTATIONS AND WARRANTIES

  	
  51

  
	
  9.1

  	
  Organization

  	
  51

  
	
  9.2

  	
  Authorization; No Conflict

  	
  51

  
	
  9.3

  	
  Validity and Binding Nature

  	
  51

  
	
  9.4

  	
  Financial Condition

  	
  51

  
	
  9.5

  	
  No Material Adverse Change

  	
  52

  
	
  9.6

  	
  Litigation and Contingent Liabilities

  	
  52

  
	
  9.7

  	
  Ownership of Properties; Liens

  	
  52

  
	
  9.8

  	
  Equity Ownership; Subsidiaries

  	
  52

  
	
  9.9

  	
  Pension Plans

  	
  53

  
	
  9.10

  	
  Investment Company Act

  	
  53

  
	
  9.11

  	
  Regulation U

  	
  54

  
	
  9.12

  	
  Taxes

  	
  54

  
	
  9.13

  	
  Solvency, etc.

  	
  54

  
	
  9.14

  	
  Environmental Matters

  	
  54

  
	
  9.15

  	
  Insurance

  	
  55

  
	
  9.16

  	
  Real Property; Facility Leases and Facility Management Agreements

  	
  55

  
	
  9.17

  	
  Information

  	
  55

  
	
  9.18

  	
  Intellectual Property

  	
  56

  
	
  9.19

  	
  Burdensome Obligations

  	
  56

  
	
  9.20

  	
  Labor Matters

  	
  56

  
						



 


ii

















 


	
  9.21

  	
  No Default

  	
  56

  
	
  9.22

  	
  Subordinated Debt

  	
  56

  
	
  SECTION 10 

  	
  AFFIRMATIVE COVENANTS

  	
  57

  
	
  10.1

  	
  Reports, Certificates and Other Information

  	
  57

  
	
   

  	
  10.1.1

  	
  Annual Report

  	
  57

  
	
   

  	
  10.1.2

  	
  Interim Reports

  	
  57

  
	
   

  	
  10.1.3

  	
  Compliance Certificates

  	
  57

  
	
   

  	
  10.1.4

  	
  Reports to the SEC and to
  Shareholders

  	
  58

  
	
   

  	
  10.1.5

  	
  Notice of Default, Litigation and
  ERISA Matters

  	
  58

  
	
   

  	
  10.1.6

  	
  Management Reports

  	
  59

  
	
   

  	
  10.1.7

  	
  Projections

  	
  59

  
	
   

  	
  10.1.8

  	
  Subordinated Debt Notices

  	
  59

  
	
   

  	
  10.1.9

  	
  Other Information

  	
  60

  
	
  10.2

  	
  Books, Records and Inspections

  	
  60

  
	
  10.3

  	
  Maintenance of Property; Insurance

  	
  61

  
	
  10.4

  	
  Compliance with Laws; Payment of Taxes and Liabilities

  	
  62

  
	
  10.5

  	
  Maintenance of Existence, etc.

  	
  62

  
	
  10.6

  	
  Use of Proceeds

  	
  63

  
	
  10.7

  	
  Employee Benefit Plans

  	
  63

  
	
  10.8

  	
  Environmental Matters

  	
  64

  
	
  10.9

  	
  Further Assurances

  	
  64

  
	
  SECTION 11 

  	
  NEGATIVE COVENANTS

  	
  65

  
	
  11.1

  	
  Debt

  	
  65

  
	
  11.2

  	
  Liens

  	
  66

  
	
  11.3

  	
  Restricted Payments

  	
  68

  
	
  11.4

  	
  Mergers, Consolidations, Sales

  	
  68

  
	
  11.5

  	
  Modification of Organizational Documents

  	
  70

  
	
  11.6

  	
  Transactions with Affiliates

  	
  70

  
	
  11.7

  	
  Unconditional Purchase Obligations

  	
  72

  
	
  11.8

  	
  Inconsistent Agreements

  	
  72

  
	
  11.9

  	
  Business Activities; Issuance of Equity

  	
  72

  
	
  11.10

  	
  Investments, Loans and Advances

  	
  72

  
	
  11.11

  	
  Restriction of Amendments to Certain Documents

  	
  74

  
	
  11.12

  	
  Fiscal Year

  	
  74

  
	
  11.13

  	
  Financial Covenants

  	
  74

  
	
   

  	
  11.13.1

  	
  Fixed Charge Coverage Ratio

  	
  74

  
	
   

  	
  11.13.2

  	
  Total Debt to EBITDA Ratio

  	
  74

  
	
  11.14

  	
  Repayment or Redemption of Debt; Cancellation of Debt

  	
  74

  
	
  11.15

  	
  Affiliate Amounts

  	
  75

  
	
  SECTION 12 

  	
  EFFECTIVENESS; CONDITIONS OF LENDING,
  ETC.

  	
  75

  
	
  12.1

  	
  Initial Credit Extension

  	
  75

  
	
   

  	
  12.1.1

  	
  Notes

  	
  76

  
	
   

  	
  12.1.2

  	
  Authorization Documents

  	
  76

  
	
   

  	
  12.1.3

  	
  Consents, etc.

  	
  76

  
	
   

  	
  12.1.4

  	
  Guaranty and Collateral Agreement

  	
  76

  
	
   

  	
  12.1.5

  	
  Perfection Certificate

  	
  76

  
					



 


iii

















 


	
   

  	
  12.1.6

  	
  Opinions of Counsel

  	
  76

  
	
   

  	
  12.1.7

  	
  Insurance

  	
  77

  
	
   

  	
  12.1.8

  	
  Copies of Documents

  	
  77

  
	
   

  	
  12.1.9

  	
  Payment of Fees

  	
  77

  
	
   

  	
  12.1.10

  	
  Solvency Certificate

  	
  77

  
	
   

  	
  12.1.11

  	
  Pro Forma

  	
  77

  
	
   

  	
  12.1.12

  	
  Search Results; Lien Terminations

  	
  77

  
	
   

  	
  12.1.13

  	
  Filings, Registrations and
  Recordings

  	
  78

  
	
   

  	
  12.1.14

  	
  Closing Certificate, Consents and
  Permits

  	
  78

  
	
   

  	
  12.1.15

  	
  Other

  	
  78

  
	
  12.2

  	
  Conditions

  	
  78

  
	
   

  	
  12.2.1

  	
  Compliance with Warranties, No
  Default, etc.

  	
  78

  
	
   

  	
  12.2.2

  	
  Confirmatory Certificate

  	
  79

  
	
   

  	
  12.2.3

  	
  Real Estate Documents

  	
  79

  
	
  SECTION 13 

  	
  EVENTS OF DEFAULT AND THEIR EFFECT

  	
  80

  
	
  13.1

  	
  Events of Default

  	
  80

  
	
   

  	
  13.1.1

  	
  Non-Payment of the Loans, etc.

  	
  80

  
	
   

  	
  13.1.2

  	
  Non-Payment of Other Debt

  	
  80

  
	
   

  	
  13.1.3

  	
  Other Material Obligations

  	
  81

  
	
   

  	
  13.1.4

  	
  Bankruptcy, Insolvency, etc.

  	
  81

  
	
   

  	
  13.1.5

  	
  Non-Compliance with Loan Documents

  	
  81

  
	
   

  	
  13.1.6

  	
  Representations; Warranties

  	
  81

  
	
   

  	
  13.1.7

  	
  Pension Plans

  	
  82

  
	
   

  	
  13.1.8

  	
  Judgments

  	
  82

  
	
   

  	
  13.1.9

  	
  Invalidity of Collateral Documents,
  etc.

  	
  82

  
	
   

  	
  13.1.10

  	
  Invalidity of Subordination
  Provisions, etc.

  	
  82

  
	
   

  	
  13.1.11

  	
  Change of Control

  	
  83

  
	
   

  	
  13.1.12

  	
  Material Adverse Effect

  	
  83

  
	
  13.2

  	
  Effect of Event of Default

  	
  83

  
	
  SECTION 14 

  	
  THE AGENT

  	
  83

  
	
  14.1

  	
  Appointment and Authorization

  	
  83

  
	
  14.2

  	
  Issuing Lender, Bank of America and Wells

  	
  84

  
	
  14.3

  	
  Delegation of Duties

  	
  84

  
	
  14.4

  	
  Exculpation of Agents

  	
  85

  
	
  14.5

  	
  Reliance by Agents

  	
  85

  
	
  14.6

  	
  Notice of Default

  	
  86

  
	
  14.7

  	
  Credit Decision

  	
  86

  
	
  14.8

  	
  Indemnification

  	
  87

  
	
  14.9

  	
  Agent in Individual Capacity

  	
  87

  
	
  14.10

  	
  Successor Agent

  	
  88

  
	
  14.11

  	
  Collateral Matters

  	
  88

  
	
  14.12

  	
  Administrative Agent May File Proofs of Claim

  	
  89

  
	
  14.13

  	
  Other Agents; Arrangers and Managers

  	
  90

  
	
  SECTION 15 

  	
  GENERAL

  	
  90

  
	
  15.1

  	
  Waiver; Amendments

  	
  90

  
	
  15.2

  	
  Confirmations

  	
  91

  
						



 


iv

















 


	
  15.3

  	
  Notices

  	
  91

  
	
  15.4

  	
  Computations

  	
  91

  
	
  15.5

  	
  Costs, Expenses and Taxes

  	
  92

  
	
  15.6

  	
  Assignments; Participations

  	
  92

  
	
   

  	
  15.6.1

  	
  Assignments

  	
  92

  
	
   

  	
  15.6.2

  	
  Participations

  	
  93

  
	
  15.7

  	
  Register

  	
  94

  
	
  15.8

  	
  GOVERNING LAW

  	
  94

  
	
  15.9

  	
  Confidentiality

  	
  94

  
	
  15.10

  	
  Severability

  	
  95

  
	
  15.11

  	
  Nature of Remedies

  	
  95

  
	
  15.12

  	
  Entire Agreement

  	
  96

  
	
  15.13

  	
  Counterparts

  	
  96

  
	
  15.14

  	
  Successors and Assigns

  	
  96

  
	
  15.15

  	
  Captions

  	
  96

  
	
  15.16

  	
  Indemnification by the Company

  	
  96

  
	
  15.17

  	
  Nonliability of Lenders

  	
  97

  
	
  15.18

  	
  Forum Selection and Consent to Jurisdiction

  	
  98

  
	
  15.19

  	
  Waiver of Jury Trial

  	
  99

  
	
  15.20

  	
  No Advisory or Fiduciary Responsibility

  	
  99

  
	
  15.21

  	
  USA PATRIOT Act Notice

  	
  100

  



 


v

















 


ANNEXES


 


	
  ANNEX A

  	
  Lenders and Pro Rata Shares

  
	
  ANNEX B

  	
  Addresses for Notices

  
	
   

  	
   

  
	
  SCHEDULES

  
	
   

  
	
  SCHEDULE 1.1

  	
  Existing Letters of Credit

  
	
  SCHEDULE 1.2

  	
  Non-Guarantor Joint Ventures

  
	
  SCHEDULE 9.6

  	
  Litigation and Contingent Liabilities

  
	
  SCHEDULE 9.8

  	
  Equity Ownership; Subsidiaries

  
	
  SCHEDULE 9.14

  	
  Underground Storage Tanks

  
	
  SCHEDULE 9.15

  	
  Insurance

  
	
  SCHEDULE 9.16

  	
  Real Property; Facility Leases and Facility
  Management Agreements

  
	
  SCHEDULE 9.20

  	
  Labor Matters

  
	
  SCHEDULE 11.1

  	
  Existing Debt

  
	
  SCHEDULE 11.2

  	
  Existing Liens

  
	
  SCHEDULE 11.10

  	
  Investments

  
	
  SCHEDULE 11.15

  	
  Management Fees

  
	
   

  	
   

  
	
  EXHIBITS

  
	
   

  
	
  EXHIBIT A

  	
  Form of Note

  
	
  EXHIBIT B

  	
  Form of Compliance Certificate

  
	
  EXHIBIT C

  	
  Form of Assignment Agreement

  
	
  EXHIBIT D

  	
  Form of Loan Notice

  



 


vi
















 


AMENDED
AND RESTATED


CREDIT
AGREEMENT


 


THIS AMENDED AND
RESTATED CREDIT AGREEMENT dated as of July 15, 2008 (this “Agreement”)
is entered into among STANDARD PARKING CORPORATION (the “Company”), the
financial institutions that are or may from time to time become parties hereto
(the “Lenders”), which, unless the context indicates otherwise, shall
include BANK OF AMERICA, N.A. (in its individual capacity, “Bank of America”),
as a Lender, as an Issuing Lender and as Administrative Agent for the Lenders
and WELLS FARGO BANK, N.A. (in its individual capacity, “Wells”), as a
Lender, as an Issuing Lender and as Syndication Agent for the Lenders,  and amends and restates that certain Amended
and Restated Credit Agreement dated as of June 29, 2006 (as amended or otherwise
modified prior to the date hereof, the “Existing Credit Agreement”)
among the Company, each lender from time to time party thereto, Bank of America
as an issuer of any Existing Letters of Credit, as a lender, as paying agent
and as co-administrative agent, LaSalle Bank, N.A. as co-administrative agent
and as a lender and Wells as an issuer of any Existing Letters of Credit, as a
lender and as syndication agent.


 


The Lenders have
agreed to make available to the Company a revolving credit facility (which
includes letters of credit) upon the terms and conditions set forth herein.


 


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


 


SECTION 1


 


DEFINITIONS


 


1.1          Definitions.


 


When used herein
the following terms shall have the following meanings:


 


Account Debtor is defined in the Guaranty and
Collateral Agreement.


 


Account or
Accounts is
defined in the UCC.


 


Acquired Debt means mortgage Debt or Debt with respect
to Capital Leases of a Person existing at the time such Person became a
Subsidiary or assumed by the Company or a Subsidiary of the Company pursuant to
an Acquisition permitted hereunder (and not created or incurred in connection
with or in anticipation of such Acquisition).


 


Acquisition means any transaction or series of
related transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition of all or substantially all of the assets of a
Person, or of all or substantially all of any business or division of a Person,
(b) the acquisition of in excess of 50% of the Capital Securities of any
Person, or otherwise causing any Person to 


 


1

















 


become a Subsidiary, or (c) the acquisition of another Person
pursuant to a merger or consolidation or any other combination with such Person
(other than a Person that is already a Subsidiary).


 


Adjusted
Off-Balance Sheet Liabilities of a Person means, Off-Balance Sheet Liabilities of
such Person and its Subsidiaries, excluding (i) all Facility Leases,
Ordinary Course Equipment Leases and Facility Management Agreements of such
Person’s and its Subsidiaries’ businesses, and (ii) payments required
pursuant to that certain Executive Parking Management Agreement dated as of May 1,
1998, together with the First Amendment thereto dated as of August 1,
1999, by and among the Company, D&E Parking, Inc., Edward B. Simmons
and Dale G. Stark.


 


Administrative
Agent means Bank
of America in its capacity as administrative agent for the Lenders hereunder
and any successors thereto in such capacity.


 


Affected Loan - see Section 8.3.


 


Affiliate of any Person means (a) any other
Person which, directly or indirectly, controls or is controlled by or is under
common control with such Person, (b) any “executive” officer (as defined
under the Exchange Act and the Regulations thereunder) or director of such
Person and (c) with respect to any Lender, any entity administered or
managed by such Lender or an Affiliate or investment advisor thereof and which
is engaged in making, purchasing, holding or otherwise investing in commercial
loans.  A Person shall be deemed to be “controlled
by” any other Person if such Person possesses, directly or indirectly, power to
vote 10% or more of the securities (on a fully diluted basis) having ordinary
voting power for the election of directors or managers or power to direct or
cause the direction of the management and policies of such Person whether by
contract or otherwise.  Unless expressly
stated otherwise herein, neither the Administrative Agent, the Collateral
Agent, nor any Lender shall be deemed an Affiliate of any Loan Party.


 


Agreement - see the Preamble.


 


Applicable Margin means, for any day, the rate per annum
set forth below opposite the level (the “Level”) then in effect, it being understood
that the Applicable Margin for (i) LIBOR Loans shall be the percentage set
forth under the column “LIBOR Margin”, (ii) Base Rate Loans shall be the
percentage set forth under the column “Base Rate Margin”, (iii) the
Non-Use Fee Rate shall be the percentage set forth under the column “Non-Use
Fee Rate” and (iv) the L/C Fee shall be the percentage set forth under the
column “L/C  Fee Rate”:


 




	
  Level

  	
   

  	
  Total Debt

  to EBITDA Ratio

  	
   

  	
  LIBOR

  Margin

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  Non-Use

  Fee Rate

  	
   

  	
  L/C Fee

  Rate

  	
   

  
	
  I

  	
   

  	
  Greater than or equal to 4.0:1

  	
   

  	
  3.50

  	
  %

  	
  2.00

  	
  %

  	
  0.70

  	
  %

  	
  3.50

  	
  %

  
	
  II

  	
   

  	
  Greater than or equal to 3.5:1 but less than 4.0:1

  	
   

  	
  3.00

  	
  %

  	
  1.50

  	
  %

  	
  0.625

  	
  %

  	
  3.00

  	
  %

  
	
  III

  	
   

  	
  Greater than or equal to 3.0:1 but less than 3.5:1

  	
   

  	
  2.50

  	
  %

  	
  1.00

  	
  %

  	
  0.50

  	
  %

  	
  2.50

  	
  %

  
	
  IV

  	
   

  	
  Greater than or equal to 2.5:1 but less than 3.0:1

  	
   

  	
  2.25

  	
  %

  	
  0.75

  	
  %

  	
  0.45

  	
  %

  	
  2.25

  	
  %

  
	
  V

  	
   

  	
  Less than 2.5:1

  	
   

  	
  2.00

  	
  %

  	
  0.50

  	
  %

  	
  0.40

  	
  %

  	
  2.00

  	
  %

  






 


2

















 


The LIBOR Margin, the Base Rate Margin, the Non-Use Fee Rate and the
L/C Fee Rate shall be adjusted, to the extent applicable, on the fifth (5th)
Business Day after the Company provides the annual and quarterly financial
statements and other information pursuant to Section 10.1.1 or 10.1.2,
as applicable, and the related Compliance Certificate, pursuant to Section 10.1.3.  Notwithstanding anything contained in this
paragraph to the contrary, (a) during the period from the Closing Date
through the fifth (5th) Business Day after the Company provides
quarterly financial statements and other information pursuant to Section 10.1.2
and the related Compliance Certificate pursuant to Section 10.1.3 for the
four fiscal quarter period ending June 30, 2008, the LIBOR Margin, the
Base Rate Margin, the Non Use Fee Rate and the L/C Fee Rate shall be based upon
Level IV, (b) if the Company fails to deliver such financial statements
and Compliance Certificate in accordance with the provisions of Section 10.1.1,
10.1.2 and 10.1.3, the LIBOR Margin, the Base Rate Margin, the
Non-Use Fee Rate and the L/C Fee Rate shall be based upon Level I above
beginning on the date such financial statements and Compliance Certificate were
required to be delivered until the fifth (5th)  Business
Day after such financial statements and Compliance Certificate are actually
delivered, whereupon the Applicable Margin shall be determined by the then
current Level, and (c) no reduction to any Applicable Margin shall become
effective at any time when an Event of Default has occurred and is continuing.


 


Asset Disposition - see Section 11.4(b).


 


Assignee - see Section 15.6.1.


 


Assignment
Agreement - see Section 15.6.1.


 


Attorney Costs means, with respect to any Person, all
reasonable fees and charges of any external counsel to such Person, all
reasonable disbursements of such counsel and all court costs and similar legal
expenses.


 


Availability
Period means,
with respect to the Commitments, the period from and including the Closing Date
to the earliest of (a) the Termination Date, (b) the date of
termination of the Revolving Commitment pursuant to Section 6.1.2,
and (c) the date of termination of the commitment of each Lender to make
Loans and of the obligation of the Issuing Lenders to make L/C Credit
Extensions pursuant to Section 13.2.


 


Bank of America – see the Preamble.


 


3

















 


Bank Product
Agreements means
those certain cash management service agreements entered into from time to time
between any Loan Party and a Lender or its Affiliates in connection with any of
the Bank Products.


 


Bank Product
Obligations means
all obligations, liabilities, contingent reimbursement obligations, fees, and
expenses owing by the Loan Parties to any Lender or its Affiliates pursuant to
or evidenced by the Bank Product Agreements and irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, and including all such amounts
that a Loan Party is obligated to reimburse to the Administrative Agent or any
Lender as a result of the Administrative Agent or such Lender purchasing
participations or executing indemnities or reimbursement obligations with
respect to the Bank Products provided to the Loan Parties pursuant to the Bank
Product Agreements.


 


Bank Products means any service or facility extended
to any Loan Party by any Lender or its Affiliates including:  (a) credit cards, (b) credit card
processing services, (c) debit cards, (d) purchase cards, (e) ACH
Transactions, (f) cash management, including controlled disbursement,
accounts or services, or (g) Hedging Agreements.


 


BAS means Banc of America Securities LLC, in
its capacity as joint lead arranger and sole book manager.


 


Base Rate means for any day a fluctuating rate per
annum equal to the higher of (a) the Federal Funds Rate plus 0.50% and (b) the
rate of interest in effect for such day as publicly announced from time to time
by Bank of America as its “prime rate.” 
The “prime rate” is a rate set by Bank of America based upon various
factors including Bank of America’s costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate.  Any change in the “prime rate” announced by
Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.


 


Base Rate Loan means any Loan which bears interest at
or by reference to the Base Rate.


 


Base Rate Margin - see the definition of Applicable
Margin.


 


Borrowing means a borrowing consisting of
simultaneous Loans of the same Type and, in the case of LIBOR Loans, having the
same Interest Period made by each of the Lenders pursuant to Section 2.01.


 


BSA - see Section 10.4.


 


Business Day means any day on which Bank of America
is open for commercial banking business in Chicago, Illinois and, in the case
of a Business Day which relates to a LIBOR Loan, on which dealings are carried
on in the London interbank eurodollar market.


 


Capital
Expenditures
means all expenditures which, in accordance with GAAP, would be required to be
capitalized and shown on the consolidated balance sheet of the Company, 


 


4

















 


including expenditures in respect of Capital Leases, but excluding (a) expenditures
made in connection with the replacement, substitution or restoration of assets
to the extent financed (i) from insurance proceeds (or other similar
recoveries) paid on account of the loss of or damage to the assets being
replaced or restored or (ii) with awards of compensation arising from the
taking by eminent domain or condemnation of the assets being replaced and (b) Permitted
Acquisitions.


 


Capital Lease means, with respect to any Person, any
lease of (or other agreement conveying the right to use) any real or personal
property by such Person that, in accordance with GAAP, is accounted for as a
capital lease on the balance sheet of such Person.


 


Capital Securities means, with respect to any Person, all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person’s capital, whether now outstanding
or issued or acquired after the Closing Date, including common shares,
preferred shares, membership interests in a limited liability company, limited
or general partnership interests in a partnership, interests in a Trust,
interests in other unincorporated organizations or any other equivalent of such
ownership interest.


 


Cash Collateralize means to deliver cash collateral to the
Collateral Agent, to be held as cash collateral for outstanding Letters of
Credit, the Existing Letters of Credit and other L/C Obligations pursuant to
documentation reasonably satisfactory to the Collateral Agent and the Issuing
Lenders.  Derivatives of such term have
corresponding meanings.


 


Cash Equivalent
Investment means,
at any time, (a) any evidence of Debt, maturing not more than one year
after such time, issued or guaranteed by the United States Government or any
agency thereof, (b) commercial paper, maturing not more than one year from
the date of issue, or corporate demand notes, in each case (unless issued by a
Lender or its holding company) rated at least A-l by Standard & Poor’s
Ratings Services, a division of The McGraw-Hill Companies, Inc. or P-l by
Moody’s Investors Service, Inc., (c) any certificate of deposit, time
deposit or banker’s acceptance, maturing not more than one year after such
time, or any overnight Federal Funds transaction that is issued or sold by any
Lender or its holding company (or by a commercial banking institution that is a
member of the Federal Reserve System and has a combined capital and surplus and
undivided profits of not less than $500,000,000), (d) any repurchase
agreement entered into with any Lender (or commercial banking institution of
the nature referred to in clause (c)) which (i) is secured by a
fully perfected security interest in any obligation of the type described in
any of clauses (a) through (c) above and (ii) has
a market value at the time such repurchase agreement is entered into of not
less than 100% of the repurchase obligation of such Lender (or other commercial
banking institution) thereunder and (e) money market accounts or mutual
funds which invest exclusively in assets satisfying the foregoing requirements,
and (f) other short term liquid investments approved in writing by the
Administrative Agent.


 


Change of Control means the occurrence of any of the
following: (i) the sale, lease, transfer, conveyance or other disposition
(other than in a transaction described in clause (vi) below), in one or a
series of related transactions, of all or substantially all of the assets of
the Company and its Subsidiaries, taken as a whole, to any “person” (as such
term is used in subsection 13(d)(3) of the Exchange Act), (ii) the
adoption of a plan relating to the liquidation or 


 


5

















 


dissolution of the Company, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any “person” (as defined above), other than John V.
Holten and/or his Related Parties, becomes the “beneficial owner” (as such term
is defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act,
except that a person shall be deemed to have “beneficial ownership” of all
securities that such person has the right to acquire, whether such right is
currently exercisable or is exercisable only upon the occurrence of a
subsequent condition; provided, however, that a bona fide pledgee shall not be
deemed to be the beneficial owner of such pledged securities until the pledgee
has taken all formal steps necessary which are required to declare a default
and determines that the power to vote or to direct the vote or to dispose or to
direct the disposition of such pledged securities will be exercised), directly
or indirectly, of more than 50% of the Voting Stock of the Company (measured by
voting power rather than number of shares), (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors, (v) the occurrence of any change of control or
similar provision in any other Subordinated Debt, the Series D Preferred
Stock (during such time as any Series D Preferred Stock remains
outstanding) or any other preferred Capital Stock of the Company, or (vi) the
Company consolidates with, or merges with or into, any Person or sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of its assets to any Person, or any Person consolidates with,
or merges with or into, the Company, in any such event pursuant to a
transaction in which more than thirty percent (30%) of the outstanding Voting
Stock of the Company is converted into or exchanged for cash, securities or
other property.


 


Closing Date – see Section 12.1.


 


Code means the Internal Revenue Code of 1986.


 


Collateral Access
Agreement means
an agreement in form and substance reasonably satisfactory to the Collateral
Agent pursuant to which a mortgagee or lessor of real property on which
collateral is stored or otherwise located, or a warehouseman, processor or
other bailee of Inventory or other property owned by any Loan Party,
acknowledges the Liens of the Collateral Agent and waives any Liens held by
such Person on such property, and, in the case of any such agreement with a
mortgagee or lessor, permits the Collateral Agent reasonable access to and use
of such real property following the occurrence and during the continuance of an
Event of Default to assemble, complete and sell any collateral stored or
otherwise located thereon.


 


Collateral Agent means Bank of America in its capacity as
collateral agent for the Lenders under the Loan Documents and any successor
thereto in such capacity.


 


Collateral
Documents means,
collectively, the Guaranty and Collateral Agreement, each Mortgage, each
Collateral Access Agreement, each Perfection Certificate and any other
agreement or instrument pursuant to which the Company, any Subsidiary or any
other Person grants or purports to grant collateral to the Collateral Agent for
the benefit of the Lenders or otherwise relates to such collateral.


 


Commitment means, as to any Lender, such Lender’s
commitment to make Loans, and participate in Letters of Credit and Existing
Letters of Credit, under this Agreement. 
The initial 


 


6

















 


amount of each Lender’s commitment to make Loans and participate in
Letters of Credit and Existing Letters of Credit is set forth on Annex A,
as it may be amended, restated, modified or supplemented and in effect from
time to time.


 


Company - 
see the Preamble.


 


Compliance
Certificate means
a Compliance Certificate in substantially the form of Exhibit B.


 


Computation Period means each period of four consecutive
Fiscal Quarters ending on the last day of a Fiscal Quarter.


 


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


 


Contingent
Liability means,
with respect to any Person, each obligation and liability of such Person and
all such obligations and liabilities of such Person incurred pursuant to any
agreement, undertaking or arrangement by which such Person:  (a) guarantees, endorses or otherwise
becomes or is contingently liable upon (by direct or indirect agreement,
contingent or otherwise, to provide funds for payment, to supply funds to, or
otherwise to invest in, a debtor, or otherwise to assure a creditor against
loss) the indebtedness, dividend, obligation or other liability of any other
Person in any manner (other than by endorsement of instruments in the course of
collection), including any indebtedness, dividend or other obligation which may
be issued or incurred at some future time; (b) guarantees the payment of
dividends or other distributions upon the Capital Securities of any other
Person; (c) undertakes or agrees (whether contingently or otherwise):  (i) to purchase, repurchase, or
otherwise acquire any indebtedness, obligation or liability of any other Person
or any property or assets constituting security therefor, (ii) to advance
or provide funds for the payment or discharge of any indebtedness, obligation
or liability of any other Person (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), or to maintain solvency,
assets, level of income, working capital or other financial condition of any
other Person, or (iii) to make payment to any other Person other than for
value received; (d) agrees to lease property or to purchase securities,
property or services from another Person with the purpose or intent of assuring
any owner of indebtedness or obligations of such other Person of the ability of
such other Person to make payment of such indebtedness or obligations; (e) to
induce the issuance of, or in connection with the issuance of, any letter of
credit for the benefit of such other Person; or (f) undertakes or agrees
otherwise to assure a creditor against loss; provided, however, for
purposes of calculating compliance with Section 11.13, Contingent
Liabilities shall exclude indorsements of instruments for deposit or collection
in the ordinary course of business and all Off-Balance Sheet Liabilities of
such Person, except for the Adjusted Off-Balance Sheet Liabilities.  The amount of any Contingent Liability shall
(subject to any limitation set forth herein) be deemed to be the outstanding
principal amount (or maximum permitted principal amount, if larger) of the
indebtedness, obligation or other liability guaranteed or supported thereby.


 


7

















 


Continuing
Directors means,
as of any date of determination, any member of the Board of Directors of the
Company who (i) was a member of such Board of Directors on the Closing
Date or (ii) was nominated for election or elected to such Board of
Directors with the approval of (a) a majority of the Continuing Directors
who were members of such Board at the time of such nomination or election, or (b) John
V. Holten and/or his Related Parties as holder of a majority of the Voting
Stock of the Company prior to any other Change of Control.


 


Controlled Group means all members of a controlled group
of corporations, all members of a controlled group of trades or businesses
(whether or not incorporated) under common control and all members of an
affiliated service group which, together with the Company or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code or Section 4001 of ERISA.


 


Debt of any Person means, without
duplication, (a) all indebtedness of such Person, for borrowed money,
whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all
obligations of such Person as lessee under Capital Leases which have been or
should be recorded as liabilities on a balance sheet of such Person in
accordance with GAAP, (c) all obligations of such Person to pay the
deferred purchase price of property or services (excluding trade accounts
payable in the ordinary course of business), (d) all indebtedness secured
by a Lien on the property of such Person, whether or not such indebtedness
shall have been assumed by such Person; provided that if such Person has not
assumed or otherwise become liable for such indebtedness, such indebtedness
shall be measured at the fair market value of such property securing such
indebtedness at the time of determination, (e) all obligations, contingent
or otherwise, with respect to the face amount of all letters of credit (whether
or not drawn), bankers’ acceptances and similar obligations issued for the
account of such Person (including the Letters of Credit and the Existing
Letters of Credit), (f) all Hedging Obligations of such Person, (g) all
Contingent Liabilities of such Person, (h) any liability of such Person
for Earnouts, (i) Off-Balance Sheet Liabilities of such Person, (j) all
Debt of any partnership of which such Person is a general partner, and (k) all
Disqualified Stock of such Person (provided that other Capital Securities that
do not constitute Disqualified Stock shall not constitute Debt, regardless of
any changes in GAAP).  Notwithstanding
the foregoing, Debt shall not include advances to the Company from customers in
connection with Facility Leases and Facility Management Agreements of the
Company in the ordinary course of business.


 


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


 


Designated
Proceeds - see Section 6.2.2(a).


 


Disqualified Stock means any class of Capital Security
that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the 


 


8

















 


happening of any event, matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at the option of the
holder thereof, in whole or in part, or otherwise has any distributions or
other payments which are mandatory or otherwise required at any time on or
prior to the date that is one year after the Termination Date, provided
that any payment that is required solely due to a customary change of control
provision not more restrictive than the Change of Control default in this
Agreement shall not cause such class of Capital Security to be deemed Disqualified
Stock.


 


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


 


Domestic
Subsidiary means
each present and future Subsidiary of the Company which is not a Foreign
Subsidiary.


 


Earnouts means any payment which may be owing by any
Person in connection with any Permitted Acquisition, which payment is
contingent upon the earnings or other financial performance of the assets or
stock being acquired pursuant to such Permitted Acquisition.


 


EBITDA means, for any Computation Period, the
sum of (A) Consolidated Net Income for such Computation Period, excluding,
to the extent reflected in determining such Consolidated Net Income:  (i) the income of any Person accrued
prior to the date it becomes a Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Subsidiaries or that Person’s
assets are acquired by the Company or any of its Subsidiaries, (ii) the
proceeds of any insurance policy, (iii) gains (but not losses) from the
sale, exchange, transfer or other disposition of property or assets not in the
ordinary course of business of the Company and its Subsidiaries, and related
tax effects in accordance with GAAP, (iv) any other extraordinary or
non-recurring gains or other gains not from continuing operations of the
Company or its Subsidiaries, and related tax effects in accordance with GAAP, (v) the
income of any Person (including without limitation any Subsidiary or Joint
Venture, but excluding any Wholly Owned Subsidiary) in which any Person other
than the Company or any of its Subsidiaries has a joint interest or partnership
interest or other ownership interest, to the extent that the declaration or
payment of dividends or similar distributions by that Subsidiary or Joint
Venture is not at the time permitted by operation of the terms of its charter
or of any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary or Joint Venture, except
to the extent of the amount of dividends or other distributions that are
actually paid in cash to the Company during such period, (vi) extraordinary
non-cash losses and non-recurring non-cash charges, (vii) income taxes, (viii) minority
interests, (ix) interest income net of Interest Expense, as defined in
accordance with GAAP, (x) depreciation and amortization expense, (xi) any
other extraordinary or non-recurring amounts or other amounts received by the
Company or any of its Subsidiaries from, or in respect of, any disposition or
termination of any Facility Lease or Facility Management Agreement of the
Company or its Subsidiaries, provided that, any such amount arising from a
single transaction shall only be excluded from Consolidated Net Income if it
equals or exceeds $250,000, (xii) costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby, (xiii) any
non-cash gains or losses under any Hedging Obligation, (xiv) any non-cash
compensation expenses (including expenses related to the Company’s restricted
stock grants under its long-term incentive plan) in an aggregate amount not to
exceed $3,000,000 during such Computation Period and (xv) any cash 


 


9

















 


or non-cash losses or charges related to Hurricane Katrina plus (B) EBITDA,
as calculated herein, of any Person related to any Permitted Acquisition
consummated during such Computation Period, calculated, upon the Administrative
Agent’s reasonable consent, as if such Permitted Acquisition had occurred on
the first day of the relevant Computation Period.


 


Environmental
Claims means all
claims, however asserted, by any governmental, regulatory or judicial authority
or other Person alleging potential liability or responsibility for violation of
any Environmental Law, or for release or injury to the environment.


 


Environmental Laws means all present or future federal,
state or local laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative or judicial orders,
consent agreements, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any governmental authority, in each case
relating to any matter arising out of or relating to public health and safety,
or pollution or protection of the environment or workplace, including any of
the foregoing relating to the presence, use, production, generation, handling,
transport, treatment, storage, disposal, distribution, discharge, emission,
release, threatened release, control or cleanup of any Hazardous Substance.


 


ERISA means the Employee Retirement Income
Security Act of 1974.


 


Event of Default means any of the events described in Section 13.1.


 


Exchange Act means the Securities Exchange Act of
1934, as amended.


 


Excluded Taxes means taxes based upon, or measured by,
the Lender’s or Administrative Agent’s (or a branch of the Lender’s or
Administrative Agent’s) overall net income, overall net receipts, or overall
net profits (including franchise taxes imposed in lieu of such taxes).


 


Existing Credit
Agreement — see
the Preamble.


 


Existing Letter of
Credit means any
letter of credit described on Schedule 1.1, as it may be amended or
modified from time to time, issued by any Issuing Lender prior to the Closing
Date which has not expired or been drawn in full and reimbursed as of the
Closing Date.  For the avoidance of
doubt, any Existing Letter of Credit issued by LaSalle Bank, N.A. shall be
deemed to be issued by Bank of America, as successor to the interests of
LaSalle Bank, N.A.


 


Facility Leases means agreements for the lease by the
Company or any of its Subsidiaries or Joint Ventures of real estate utilized as
a vehicle parking facility and/or for ancillary parking and transportation
services.


 


Facility
Management Agreement
means any agreement (other than the Facility Leases), for the provision by the
Company or any of its Subsidiaries or Joint Ventures of services for the
management or operation of a vehicle parking facility and/or ancillary parking
and transportation services, including without limitation any such agreement
designated as a management agreement, parking enforcement agreement, operating
agreement or license agreement.


 


10
















 


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


 


Fee
Letter means the
fee letter dated the Closing Date between the Company, Bank of America and BAS.


 


Fiscal
Quarter means a
fiscal quarter of a Fiscal Year.


 


Fiscal
Year means the
fiscal year of the Company and its Subsidiaries, which period shall be the
12-month period ending on December 31 of each year.  References to a Fiscal Year with a number
corresponding to any calendar year (e.g., “Fiscal Year 2007”) refer to
the Fiscal Year ending on December 31 of such calendar year.


 


Fixed
Charge Coverage Ratio means, for any Computation Period, the ratio of (a) the total for
such period of EBITDA minus the sum of income taxes paid or payable in
cash by the Loan Parties and all Unfinanced Capital Expenditures to (b) the
sum for such Computation Period of (i) cash Interest Expense net of any
cash interest income plus (ii) required payments of principal of
Funded Debt (excluding the Revolving Loans).


 


Foreign
Subsidiary means any
present or future Subsidiary of the Company incorporated or formed in any
jurisdiction other than any State or other political subdivision of the United
States of America.


 


FRB means the Board of Governors of the
Federal Reserve System or any successor thereto.


 


Funded
Debt means, as to
any Person, all Debt of such Person that matures more than one year from the
date of its creation (or is renewable or extendible, at the option of such
Person, to a date more than one year from such date).


 


GAAP means generally accepted accounting
principles set forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession) and the Securities and
Exchange Commission, which are applicable to the circumstances as of the date
of determination.


 


11

















 


Guarantor means each present and future Domestic
Subsidiary of the Company (other than H&T Investment Group, Inc., an
Ohio corporation and S&J Parking Company, an Illinois corporation) and
each  present and future Joint Venture of
the Company (other than any present or future Joint Venture of the Company
which is prohibited by its organizational documents from becoming a Guarantor,
and which shall be identified on Schedule 1.2 attached hereto), or any
other Person executing a Guaranty and Collateral Agreement at any time.


 


Guaranty
and Collateral Agreement means the Guaranty and Collateral Agreement dated as of the date
hereof executed and delivered by the Company and each existing, new or future
Guarantor, together with any joinders thereto and any other guaranty and
collateral agreement executed by the Company and each existing, new or future
Guarantor, in each case in form and substance satisfactory to the Collateral
Agent.


 


Hazardous
Substances means (a) any
petroleum or petroleum products, radioactive materials, asbestos in any form
that is or could become friable, urea formaldehyde foam insulation, dielectric
fluid containing levels of polychlorinated biphenyls, radon gas and mold; (b) any
chemicals, materials, pollutant or substances defined as or included in the
definition of “hazardous substances”, “hazardous waste”, “hazardous materials”,
“extremely hazardous substances”, “restricted hazardous waste”, “toxic
substances”, “toxic pollutants”, “contaminants”, “pollutants” or words of
similar import, under any applicable Environmental Law; and (c) any other
chemical, material or substance, the exposure to, or release of which is
prohibited, limited or regulated by any governmental authority or for which any
duty or standard of care is imposed pursuant to, any Environmental Law.


 


Hedging
Agreement means
any interest rate, currency or commodity swap agreement, cap agreement or
collar agreement, and any other agreement or arrangement designed to protect a
Person against fluctuations in interest rates, currency exchange rates or
commodity prices.


 


Hedging
Obligation means,
with respect to any Person, any liability of such Person under any Hedging
Agreement.  The amount of any Person’s
obligation in respect of any Hedging Obligation shall be deemed to be the
incremental obligation that would be reflected in the financial statements of
such Person in accordance with GAAP.


 


Honor
Date – see Section 2.3.3(a).


 


Indemnified
Liabilities - see
Section 15.16.


 


Interest
Expense means for
any period the consolidated interest expense of the Company and its
Subsidiaries for such period (including all imputed interest on Capital
Leases).


 


Interest
Period means, as
to any LIBOR Loan, the period commencing on the date such Loan is borrowed or
continued as, or converted into, a LIBOR Loan and ending on the date one, two,
three or six months thereafter as selected by the Company in its Loan Notice; provided
that:


 


(a)           if
any Interest Period would otherwise end on a day that is not a Business Day,
such Interest Period shall be extended to the following Business Day unless the



 


12

















 


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 preceding Business Day;


 


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


 


(c)           the
Company may not select any Interest Period for a Revolving Loan which would
extend beyond the scheduled Termination Date.


 


Inventory is defined in the Guaranty and
Collateral Agreement.


 


Investment means, with respect to any Person, any
investment in another Person, whether by acquisition of any debt or Capital
Security, by making any loan or advance, by becoming obligated with respect to
a Contingent Liability in respect of obligations of such other Person (other
than travel and similar advances to employees in the ordinary course of
business) or by making an Acquisition.


 


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


 


Issuer
Documents means
with respect to any Letter of Credit or Existing Letter of Credit, the L/C
Application, and any other document, agreement and instrument entered into by
the applicable Issuing Lender, Bank of America or Wells, as applicable and the
Company (or any Subsidiary) or in favor such Issuing Lender, Bank of America or
Wells, as applicable and relating to any such Letter of Credit or Existing
Letter of Credit.


 


Issuing
Lender means Bank
of America, in its capacity as an issuer of Letters of Credit hereunder, or any
Affiliate of Bank of America that may from time to time issue Letters of
Credit, Wells, in its capacity as an issuer of Letters of Credit and any other
Lender in its capacity as issuer of Letters of Credit who has been selected by
the Company and who has agreed to act as an Issuing Lender hereunder in
accordance with its terms and their successors and assigns in such capacity.


 


Joint
Venture means any
corporation, limited or general partnership, limited liability company,
association, trust or other business entity of which the Company or one or more
of its Subsidiaries owns beneficially at least 25% but less than 100% of the
Capital Securities of such Person.


 


L/C
Advance means,
with respect to each Lender, such Lender’s funding of its participation in any
L/C Borrowing in accordance with its Pro Rata Share.


 


L/C
Application
means, with respect to any request for the issuance of a Letter of Credit, a
letter of credit application in the form being used by the applicable Issuing
Lender at the time of such request for the type of letter of credit requested.


 


13

















 


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


 


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


 


L/C
Fee Rate - see
the definition of Applicable Margin.


 


L/C
Obligations
means, as at any date of determination, without duplication, the aggregate
amount available to be drawn under all outstanding Letters of Credit and
Existing Letters of Credit plus the aggregate of all Unreimbursed
Amounts, including all L/C Borrowings. 
For purposes of computing the amount available to be drawn under any
Letter of Credit or any Existing Letter of Credit, the amount of such Letter of
Credit or Existing Letter of Credit shall be determined in accordance with Section 2.3.11.  For all
purposes of this Agreement, if on any date of determination a Letter of Credit
or Existing Letter of Credit has expired by its terms but any amount may still
be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit or Existing Letter of Credit shall be deemed to be “outstanding”
in the amount so remaining available to be drawn.


 


Lender - see the Preamble.  References to the “Lenders” shall include any
Issuing Lender; for purposes of clarification only, to the extent that Bank of
America (or any other Issuing Lender) may have any rights or obligations in
addition to those of the other Lenders due to its status as an Issuing Lender,
its status as such will be specifically referenced.  In addition to the foregoing, for the purpose
of identifying the Persons entitled to share in the Collateral and the proceeds
thereof under, and in accordance with the provisions of, this Agreement and the
Collateral Documents, the term “Lender” shall include Affiliates of a Lender
providing a Bank Product.


 


Lender
Party - see Section 15.16.


 


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


 


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


 


Letter
of Credit Sublimit
means an amount equal to the lesser of (a) the Revolving Commitment and (b) $50,000,000.  The Letter of Credit Sublimit is part of, and
not in addition to, the Revolving Commitment.


 


LIBOR
Base Rate means,
for any Interest Period with respect to a LIBOR Loan, the rate per annum equal
to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as
published by Reuters (or other commercially available source providing
quotations of BBA LIBOR as designated by the Administrative Agent from time to
time) at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, for Dollar deposits


 


14

















 


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


 


LIBOR
Loan means any
Loan which bears interest at a rate determined by reference to the LIBOR Rate.


 


LIBOR
Margin -  see the definition of Applicable Margin.


 


LIBOR
Office means with
respect to any Lender the office or offices of such Lender which shall be
making or maintaining the LIBOR Loans of such Lender hereunder.  A LIBOR Office of any Lender may be, at the
option of such Lender, either a domestic or foreign office.


 


LIBOR
Rate means for
any Interest Period with respect to any LIBOR Loan, a rate per annum determined
by the Administrative Agent to be equal to the quotient obtained by dividing (a) the
LIBOR Base Rate for such LIBOR Loan for such Interest Period by (b) one
minus the LIBOR Reserve Percentage for such LIBOR Loan for such Interest
Period.


 


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


 


Lien means, with respect to any Person, any
interest granted by such Person in any real or personal property, asset or
other right owned or being purchased or acquired by such Person (including an
interest in respect of a Capital Lease) which secures payment or performance of
any obligation and shall include any mortgage, lien, encumbrance, title
retention lien, charge or other security interest of any kind, whether arising
by contract, as a matter of law, by judicial process or otherwise.


 


Loan
Documents means
this Agreement, the Notes, the Letters of Credit, the Existing Letters of
Credit, the Issuer Documents, the Fee Letter, the Collateral Documents, any
Subordination Agreements and all documents, instruments and agreements delivered
in connection with the foregoing.


 


15

















 


Loan
Notice means a
notice of (a) a Borrowing of Loans, (b) a conversion of Loans from
one Type to the other, or (c) a continuation of LIBOR Loans, in each case
pursuant to Section 2.2(a), which, if in writing, shall be
substantially in the form of Exhibit D.


 


Loan
Party means the
Company and each Subsidiary.


 


Loan
or Loans means,
as the context may require, Revolving Loans, and/or Swing Line Loans.


 


Mandatory
Repayment Event –
see Section 6.2.2(a).


 


Margin
Stock means any “margin
stock” as defined in Regulation U.


 


Material
Adverse Effect
means (i) a material adverse effect on the property, business, operations,
financial condition, liabilities, prospects or capitalization of the Company
and its Subsidiaries, taken as a whole, (ii) a material adverse effect on
the ability of the Loan Parties to perform their collective obligations under
the Loan Documents taken as a whole, or (iii) a material adverse effect on
the rights and remedies of the Administrative Agent, the Collateral Agent, the
Issuing Lenders or the Lenders under the Loan Documents.


 


Mortgage means a mortgage, deed of trust,
leasehold mortgage or similar instrument granting the Collateral Agent a Lien
on real property of any Loan Party.


 


Multiemployer
Pension Plan
means a multiemployer plan, as defined in Section 4001(a)(3) of
ERISA, to which the Company or any other member of the Controlled Group may
have any liability.


 


Net
Capital Expenditures
shall mean Capital Expenditures, exclusive of (i) any such Capital
Expenditures financed on a non-recourse basis (i.e., on customary non-recourse
terms and with recourse solely to the asset being financed with such
non-recourse debt) by third parties which are not Affiliates of the Company,
and (ii) Capital Expenditures which are incurred to complete a Permitted
Acquisition.


 


Net
Cash Proceeds
means:


 


(a)           with
respect to any Asset Disposition, the aggregate cash proceeds (including cash
proceeds received pursuant to policies of insurance or by way of deferred
payment of principal pursuant to a note, installment receivable or otherwise,
but only as and when received) received by any Loan Party pursuant to such
Asset Disposition net of (i) the direct costs relating to such sale,
transfer or other disposition (including sales commissions and legal,
accounting and investment banking fees), (ii) taxes paid or reasonably
estimated by the Company to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing
arrangements) and (iii) amounts required to be applied to the repayment of
any Debt secured by a Lien on the asset subject to such Asset Disposition
(other than the Loans);


 


16

















 


(b)           with
respect to any issuance of Capital Securities, the aggregate cash proceeds
received by any Loan Party pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and underwriters’ commissions and
legal, accounting and investment banking fees); and


 


(c)           with
respect to any issuance of Debt, the aggregate cash proceeds received by any
Loan Party pursuant to such issuance, net of the direct costs of such issuance
(including up-front, underwriters’ and placement fees, closing and commitment
fees, and legal, accounting and investment banking fees).


 


Non-Consenting
Lender – see Section 8.7(b).


 


Non-U.S.
Participant – see
Section 7.6(d).


 


Non-Use
Fee Rate – see
the definition of Applicable Margin.


 


Note means a promissory note substantially in
the form of Exhibit A.


 


Obligations means all obligations (monetary
(including any interest, fees and charges that accrue after the commencement by
or against the Company, any Loan Party or any Guarantor of any proceeding under
any bankruptcy or insolvency law naming such Person as the debtor in such
proceeding, regardless of whether such interest, fees and charges are allowed
claims in such proceeding) or otherwise) of the Company and each Guarantor
under this Agreement and any other Loan Document including Attorney Costs and
any reimbursement obligations of the Company and each Guarantor in respect of
Letters of Credit, Existing Letters of Credit and surety bonds, all Hedging
Obligations permitted hereunder which are owed to any Lender or its Affiliate,
and all Bank Products Obligations, all in each case howsoever created, arising
or evidenced, whether direct or indirect, absolute or contingent, now or
hereafter existing, or due or to become due.


 


OFAC - see Section 10.4.


 


Off-Balance
Sheet Liabilities
of a Person means, without duplication, (a) Receivables Facility
Attributed Indebtedness and any repurchase obligation or liability of such
Person or any of its Subsidiaries with respect to Accounts or notes receivable
sold by such Person or any of its Subsidiaries (calculated to include the
unrecovered investment of purchasers or transferees of Accounts or any other
obligation of such Person or such transferor to purchasers/transferees of
interests in Accounts or notes receivable or the agent for such
purchasers/transferees), (b) any liability of such Person or any of its
Subsidiaries under any sale and leaseback transactions which do not create a
liability on the consolidated balance sheet of such Person, (c) any
liability of such Person or any of its Subsidiaries under any financing lease
or so-called “synthetic” lease transaction, or (d) any obligations of such
Person or any of its Subsidiaries arising with respect to any other transaction
which is the functional equivalent of or takes the place of borrowing but which
does not constitute a liability on the consolidated balance sheets of such
Person and its Subsidiaries.


 


17

















 


Operating
Lease means any
lease of (or other agreement conveying the right to use) any real or personal
property by any Loan Party, as lessee, other than any Capital Lease.


 


Ordinary
Course Capital Lease
means a Capital Lease of computer systems, equipment or motor vehicles entered
into by the Company or its Subsidiaries or Joint Ventures in the ordinary
course of business in connection with performing its obligations under Facility
Management Agreements or Facility Leases.


 


Ordinary
Course Equipment Lease means an Operating Lease of computer systems, equipment or motor
vehicles entered into by the Company or its Subsidiaries or Joint Ventures in
the ordinary course of business in connection with performing its obligations
under Facility Management Agreements or Facility Leases.


 


Ordinary
Course Lease Termination means (i) the termination of an Ordinary Course Equipment Lease
or an Ordinary Course Capital Lease pursuant to either (a) the termination
of the related Facility Management Agreement or Facility Lease, or (b) a
material modification of the related Facility Management Agreement or Facility
Lease such that the items of equipment or motor vehicles which are leased under
such Ordinary Course Equipment Lease or Ordinary Course Capital Lease are no
longer needed or useful for the purposes of performance under such Facility
Management Agreement or Facility Lease by the Company or the applicable
Subsidiary, and (ii) termination of a Facility Lease or Facility
Management Agreement that is no longer needed or useful in the business
judgment of the Company.


 


Ordinary
Course Lease Termination Payments means payments of liquidated damages or accelerated
rentals or similar amounts which are paid under the terms of an Ordinary Course
Equipment Lease, Ordinary Course Capital Lease, Facility Management Agreement
or Facility Lease pursuant to an Ordinary Course Lease Termination thereof at
or prior to expiration of the then-applicable respective terms thereunder.


 


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


 


PBGC means the Pension Benefit Guaranty
Corporation and any entity succeeding to any or all of its functions under
ERISA.


 


Participant - see Section 15.6.2.


 


Pension
Plan means a “pension
plan”, as such term is defined in Section 3(2) of ERISA, which is
subject to Title IV of ERISA or the minimum funding standards of ERISA (other
than a Multiemployer Pension Plan), and as to which the Company or any member
of the Controlled Group may have any liability, including any liability by
reason of having been a substantial


 


18

















 


employer within the meaning of Section 4063 of
ERISA at any time during the preceding five years, or by reason of being deemed
to be a contributing sponsor under Section 4069 of ERISA.


 


Perfection
Certificate means
a perfection certificate executed and delivered to the Collateral Agent by a
Loan Party.


 


Permitted
Acquisition means
an Acquisition by the Company or a Guarantor which meets the requirements set
forth in Section 11.4 of this Agreement.


 


Permitted
Lien means a Lien
expressly permitted hereunder pursuant to Section 11.2.


 


Person means any natural person, corporation,
partnership, trust, limited liability company, association, governmental
authority or unit, or any other entity, whether acting in an individual,
fiduciary or other capacity.


 


Principals means (i) John V. Holten, Holberg
Industries, Inc., a Delaware corporation, AP Holdings, Inc., a
Delaware corporation, Steamboat Industries LLC, a New York limited liability
company and Steamboat Industries N.V., a corporation organized pursuant to the
laws of The Netherlands Antilles, (ii) the Related Parties of all the
Persons described in the foregoing clause (i) and (c) the
Affiliates of all the Persons described in the foregoing clauses (i) and
(ii).


 


Pro
Rata Share means:


 


(a)           with
respect to a Lender’s obligation to make Revolving Loans, participate in
Letters of Credit and Existing Letters of Credit, reimburse the applicable
Issuing Lender and receive payments of principal, interest, fees, costs, and
expenses with respect thereto, (x) prior to the Revolving Commitment being
terminated or reduced to zero, the percentage obtained by dividing (i) such
Lender’s Commitment, by (ii) the aggregate Revolving Commitment of all
Lenders and (y) from and after the time the Revolving Commitment has been
terminated or reduced to zero, the percentage obtained by dividing (i) the
aggregate unpaid principal amount of such Lender’s Revolving Outstandings by (ii) the
aggregate unpaid principal amount of all Revolving Outstandings;


 


(b)           with
respect to all other matters as to a particular Lender, the percentage obtained
by dividing (i) such Lender’s Commitment by (ii) the aggregate amount
of Revolving Commitment of all Lenders; provided that in the event the
Commitments have been terminated or reduced to zero, Pro Rata Share shall be
the percentage obtained by dividing (A) the principal amount of such
Lender’s Revolving Outstandings by (B) the principal amount of all
outstanding Revolving Outstandings.


 


Receivables
Facility Attributed Indebtedness means the amount of obligations outstanding under a
receivables purchase facility on any date of determination that would be
characterized as principal if such facility were structured as a secured
lending transaction rather than as a purchase.


 


Regulation
D means Regulation
D of the FRB.


 


19

















 


Regulation
U means
Regulation U of the FRB.


 


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


 


Replacement
Lender - see Section 8.7(b).


 


Reportable
Event means a
reportable event as defined in Section 4043 of ERISA and the regulations
issued thereunder as to which the PBGC has not waived the notification
requirement of Section 4043(a), or the failure of a Pension Plan to meet
the minimum funding standards of Section 412 of the Code (without regard
to whether the Pension Plan is a plan described in Section 4021(a)(2) of
ERISA) or under Section 302 of ERISA.


 


Required
Lenders means, (a) at
such time as there are fewer than three Lenders, Lenders whose Pro Rata Shares
equal 100% as determined pursuant to clause (b) of the definition of “Pro
Rata Share” or (b) at such time as there are three or more Lenders, at
least three Lenders whose Pro Rata Shares exceed 50% as determined pursuant to
clause (b) of the definition of “Pro Rata Share”.


 


Revolving
Commitment means
TWO HUNDRED TEN MILLION DOLLARS ($210,000,000), as increased or reduced from
time to time pursuant to Section 6.1.


 


Revolving
Loan - see Section 2.1.


 


Revolving
Loan Availability
means, at any time, the Revolving Commitment less the sum of Revolving
Outstandings.


 


Revolving
Outstandings
means, at any time, the aggregate Outstanding Amount of all Revolving Loans,
all Swing Line Loans and all L/C Obligations.


 


SEC means the Securities and Exchange
Commission or any other governmental authority succeeding to any of the
principal functions thereof.


 


Senior
Officer means,
with respect to any Loan Party, any of the chief executive officer, the chief
financial officer, the chief operating officer or the treasurer of such Loan
Party.


 


Series D
Preferred Stock
means the Series D preferred stock of the Company.


 


Special
Payment means any
dividend, payment or other distribution in respect of any class of the Company’s
Capital Securities or any dividend, payment or distribution in connection with
the redemption, purchase, retirement or other acquisition, directly or
indirectly, of any shares of the Company’s Capital Securities which is in
compliance with all of the following requirements:


 


20
















 


(i)            immediately
before and after giving effect to any such dividend, payment, distribution,
redemption, purchase, retirement or acquisition, no Event of Default or
Unmatured Event of Default shall exist; and


 


(ii)           on
a pro forma basis after giving effect to any such dividend, payment,
distribution, redemption, purchase, retirement or acquisition, the Company is
in compliance with the financial covenants set forth in Section 11.13.


 


Subordinated
Debt means, for
any Person, any Indebtedness of such Person which is fully subordinated to all
Indebtedness of such Person owing to the Administrative Agent and the Lenders,
by written agreements and documents in form and substance satisfactory to the
Required Lenders and which is governed by terms and provisions, including
without limitation maturities, covenants, defaults, rates and fees, acceptable
to the Administrative Agent and the Required Lenders,.


 


Subordinated
Debt Documents
means any agreement or document evidencing or relating to any Subordinated
Debt, in each case, as the same may be amended, restated, modified or
supplemented and in effect from time to time as permitted by the terms hereof.


 


Subsidiary means, with respect to any Person, a
corporation, partnership, limited liability company or other entity of which
such Person owns, directly or indirectly, such number of outstanding Capital
Securities as have more than 50% of the ordinary voting power for the election
of directors or other managers of such corporation, partnership, limited
liability company or other entity. 
Unless the context otherwise requires, each reference to Subsidiaries
herein shall be a reference to Subsidiaries of the Company.


 


Swing
Line Commitment Amount means $10,000,000, as reduced from time to time pursuant to Section 6.1,
which commitment constitutes a sub facility of the Revolving Commitment of the
Swing Line Lender.


 


Swing
Line Lender means
Bank of America.


 


Swing
Line Loan - see Section 2.4.


 


Syndication
Agent means Wells
in its capacity as syndication agent for the Lenders hereunder and any
successor thereto in such capacity.


 


Taxes means any and all present and future
taxes, duties, levies, imposts, deductions, assessments, charges or
withholdings, and any and all liabilities (including interest and penalties and
other additions to taxes) with respect to the foregoing, but excluding Excluded
Taxes.


 


Termination
Date means the
earlier to occur of (a) June 29, 2013 or (b) such other date on
which the Commitments terminate pursuant to Section 6 or 13.


 


Termination
Event means, with
respect to a Pension Plan that is subject to Title IV of ERISA, (a) a
Reportable Event, (b) the withdrawal of Company or any other member of the


 


21

















 


Controlled Group from such Pension Plan during a plan
year in which Company or any other member of the Controlled Group was a “substantial
employer” as defined in Section 4001(a)(2) of ERISA, (c) the
termination of such Pension Plan, the filing of a notice of intent to terminate
the Pension Plan or the treatment of an amendment of such Pension Plan as a
termination under Section 4041 of ERISA, (d) the institution by the
PBGC of proceedings to terminate such Pension Plan or (e) any event or
condition that might constitute grounds under Section 4042 of ERISA for
the termination of, or appointment of a trustee to administer, such Pension
Plan.


 


Total
Assets shall
mean, at any time, the consolidated assets of the Company and its Subsidiaries,
determined in accordance with GAAP.


 


Total
Debt means all
Debt of the Company and its Subsidiaries, determined on a consolidated basis,
excluding (a) contingent obligations in respect of Contingent Liabilities
(except to the extent constituting Contingent Liabilities in respect of Debt of
a Person other than any Loan Party and except for any Contingent Liabilities in
respect of Disqualified Stock of the Company or any of its Subsidiaries), (b) Hedging
Obligations, (c) obligations to pay Earnouts, (d) Off-Balance Sheet
Liabilities (including without limitation, the D&E and Central Park-Chicago
payment obligations identified on Schedule 11.1), (e) Debt of the
Company to Subsidiaries and Debt of Subsidiaries to the Company or to other
Subsidiaries and (f) the deferred compensation obligations identified on Schedule
11.1.


 


Total
Debt to EBITDA Ratio
means, as of the last day of any Fiscal Quarter, the ratio of (a) Total
Debt outstanding as of such day to (b) EBITDA for the Computation Period
ending on such day.


 


Total
Plan Liability
means, at any time, the present value of all vested and unvested accrued
benefits under all Pension Plans, determined as of the then most recent
valuation date for each Pension Plan, using PBGC actuarial assumptions for
single employer plan terminations.


 


Type means, with respect to any Loan, its
character as a Base Rate Loan or a LIBOR Loan.


 


UCC is defined in the Guaranty and
Collateral Agreement.


 


Unfinanced
Capital Expenditures
means Capital Expenditures which are incurred and not financed with Funded Debt
(other than Obligations).


 


Unfunded
Liability means
the amount (if any) by which the present value of all vested and unvested
accrued benefits under all Pension Plans exceeds the fair market value of all
assets allocable to those benefits, all determined as of the then most recent
valuation date for each Pension Plan, using PBGC actuarial assumptions for
single employer plan terminations.


 


Unmatured
Event of Default
means any event that, if it continues uncured, will, with lapse of time or
notice or both, constitute an Event of Default.


 


Unreimbursed
Amount - see Section 2.3.3(a).


 


22

















 


Voting
Stock means any
class of Capital Securities, the holders of which are at the time entitled, as
such holders, to vote for the election of a majority of the directors (or
persons performing similar functions) of the corporation, association, trust or
other business entity involved, whether or not the right so to vote exists by
reasoning of the happening of a contingency.


 


Withholding
Certificate - see
Section 7.6(d).


 


Wholly-Owned
Subsidiary means,
as to any Person, a Subsidiary all of the Capital Securities of which (except
directors’ qualifying Capital Securities) are at the time directly or
indirectly owned by such Person and/or another Wholly-Owned Subsidiary of such
Person.


 


1.2          Other Interpretive Provisions.


 


(a)           The
meanings of defined terms are equally applicable to the singular and plural
forms of the defined terms.


 


(b)           Section,
Annex, Schedule and Exhibit references are to this Agreement unless
otherwise specified.


 


(c)           The
term “including” is not limiting and means “including without limitation.”


 


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


 


(e)           Unless
otherwise expressly provided herein, (i) references to agreements
(including this Agreement and the other Loan Documents) and other contractual
instruments shall be deemed to include all subsequent amendments, restatements,
supplements and other modifications thereto, but only to the extent such
amendments, restatements, supplements and other modifications are not
prohibited by the terms of any Loan Document, and (ii) references to any
statute or regulation shall be construed as including all statutory and
regulatory provisions amending, replacing, supplementing or interpreting such
statute or regulation.


 


(f)            This
Agreement and the other Loan Documents may use several different limitations,
tests or measurements to regulate the same or similar matters.  All such limitations, tests and measurements
are cumulative and each shall be performed in accordance with its terms.


 


(g)           This
Agreement and the other Loan Documents are the result of negotiations among and
have been reviewed by counsel to the Administrative Agent, the Collateral
Agent, the Company, the Lenders and the other parties thereto and are the
products of all parties.  Accordingly,
they shall not be construed against the Administrative Agent, the Collateral
Agent, the Issuing Lenders or the Lenders merely because of the Administrative
Agent’s, the Collateral Agent’s or Lenders’ involvement in their preparation.


 


23

















 


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


 


SECTION 2


 


COMMITMENTS
OF THE LENDERS; BORROWING,

CONVERSION AND LETTER OF CREDIT PROCEDURES


 


2.1          Revolving Loans.


 


Subject
to the terms and conditions set forth herein, each Lender severally agrees to
make loans (each such loan, a “Revolving Loan”) to the Company in
Dollars from time to time on any Business Day during the Availability Period in
an aggregate amount not to exceed at any time outstanding the amount of such
Lender’s Commitment; provided, however, that after giving effect
to any Borrowing of Revolving Loans, (i) the Revolving Outstandings shall
not exceed the Revolving Commitments, and (ii) the aggregate Outstanding
Amount of the Revolving Loans of any Lender, plus such Lender’s Pro Rata
Share of the Outstanding Amount of all L/C Obligations plus such Lender’s
Pro Rata Share of the Outstanding Amount of all Swing Line Loans shall not
exceed such Lender’s Commitment.  Within
the limits of each Lender’s Commitment, and subject to the other terms and
conditions hereof, the Company may borrow under this Section 2.1,
prepay under Section 6.2, and reborrow under this Section 2.1.  Revolving Loans may be Base Rate Loans or
LIBOR Loans, as further provided herein, provided, however, all Borrowings made
on the Closing Date shall be made as Base Rate Loans.


 


2.2          Borrowing Procedures.


 


(a)           Each
Borrowing, each conversion of Loans from one Type to the other, and each continuation
of LIBOR Loans shall be made upon the Company’s irrevocable notice to the
Administrative Agent, which may be given by telephone.  Each such notice must be received by the
Administrative Agent not later than 12:00 p.m. (i) three Business
Days prior to the requested date of any Borrowing of, conversion to or
continuation of, LIBOR Loans or of any conversion of LIBOR Loans to Base Rate
Loans, and (ii) on the requested date of any Borrowing of Base Rate
Loans.  Each telephonic notice by the
Company pursuant to this Section 2.2(a) must be confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the
Company.  Each Borrowing of, conversion
to or continuation of LIBOR Rate Loans shall be in a principal amount of
$2,000,000 or a whole multiple of $500,000 in excess thereof.  Except as provided in Sections 2.3.3
and 2.4.3, each Borrowing of or conversion to Base Rate Loans shall be
in a principal amount of $250,000 or a whole multiple of $50,000 in excess
thereof.  Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Company is requesting
a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of LIBOR Loans, (ii) the requested date of the Borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Loans to be borrowed, converted or
continued, (iv) the Type of Loans to be borrowed or to which existing
Loans


 


24

















 


are to be converted, and (v) if applicable, the
duration of the Interest Period with respect thereto.  If the Company fails to specify a Type of a
Loan in a Loan Notice or if the Company fails to give a timely notice
requesting a conversion or continuation, then the applicable Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to
Base Rate Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable LIBOR Loans.  If the Company requests a Borrowing of,
conversion to, or continuation of LIBOR Loans in any Loan Notice, but fails to
specify an Interest Period, it will be deemed to have specified an Interest
Period of one month.


 


(b)           Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Pro Rata Share of the applicable Loans, and if no
timely notice of a conversion or continuation is provided by the Company, the Administrative
Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans as described in the preceding subsection.  In the case of a Borrowing, each Lender shall
make the amount of its Loan available to the Administrative Agent in
immediately available funds at the Administrative Agent’s Office not later than
2:00 p.m. on the Business Day specified in the applicable Loan
Notice.  Upon satisfaction of the
applicable conditions set forth in Section 12.2 (and, if such
Borrowing is the initial Credit Extension, Section 12.1), the
Administrative Agent shall make all funds so received available to the Company
in like funds as received by the Administrative Agent either by (i) crediting
the account of the Company on the books of Bank of America with the amount of
such funds or (ii) wire transfer of such funds, in each case in accordance
with instructions provided to (and reasonably acceptable to) the Administrative
Agent by the Company; provided, however, that if, on the date of
a Borrowing of Revolving Loans, there are L/C Borrowings outstanding, then the
proceeds of such Borrowing, first, shall be applied to the payment in full of
any such L/C Borrowings and second, shall be made available to the
Company as provided above.


 


(c)            Except as otherwise provided herein,
a LIBOR Loan may be continued or converted only on the last day of the Interest
Period for such LIBOR Loan.  During the
existence of an Unmatured Event of Default or Event of Default, no Loans may be
requested as, converted to or continued as LIBOR Loans without the consent of
the Required Lenders.


 


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


 


(e)          After
giving effect to all Borrowings, all conversions of Loans from one Type to the
other, and all continuations of Loans as the same Type, there shall not be more
than 5 Interest Periods in effect with respect to Revolving Loans.


 


25

















 


2.3          Letters of Credit.


 


2.3.1        Letter
of Credit Commitment.


 


(a)           Subject to the terms and conditions
set forth herein, (i) the Issuing Lenders agree, in reliance upon the
agreements of the Lenders set forth in this Section 2.3, (A) from
time to time on any Business Day during the period from the Closing Date until
the Letter of Credit Expiration Date, to issue Letters of Credit in Dollars for
the account of the Company or any of its Subsidiaries, and to amend or extend
Letters of Credit previously issued by it, in accordance with subsection (b) below,
and (B) to honor drawings under the Letters of Credit and Existing Letters
of Credit; and (ii) the Lenders severally agree to participate in Letters
of Credit issued for the account of the Company or its Subsidiaries and any
Existing Letters of Credit and any drawings thereunder, as applicable; provided
that after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Revolving Outstandings shall not exceed the Revolving
Commitment, (y) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender’s Pro Rata Share of the Outstanding Amount
of all L/C Obligations plus such Lender’s Pro Rata Share of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Commitment and (z) the
Outstanding Amount of the L/C Obligations shall not exceed the Letter of Credit
Sublimit.  Each request by the Company
for the issuance or amendment of a Letter of Credit shall be deemed to be a
representation by the Company that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the preceding
sentence.  Within the foregoing limits, and
subject to the terms and conditions hereof, the Company’s ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Company may,
during the foregoing period, obtain Letters of Credit to replace Letters of
Credit that have expired or that have been drawn upon and reimbursed.  Furthermore, each Lender with a Commitment
acknowledges and confirms that it has a participation interest in the liability
of the applicable Issuing Lender under the Existing Letters of Credit in a
percentage equal to its Pro Rata Share of the Revolving Loans.  The Company’s reimbursement obligations in
respect of the Existing Letters of Credit, and each Lender’s obligations in
connection therewith, shall be governed by the terms of this Agreement.


 


(b)           The Issuing Lenders shall not issue
any Letter of Credit if:


 


(i)            subject
to Section 2.3.2(c), the expiry date of such requested Letter of
Credit would occur after the Letter of Credit Expiration Date, unless the
Required Lenders have approved such expiry date; or


 


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


 


26

















 


(c)                                   The Issuing Lenders shall
not be under any obligation to issue any Letter of Credit if:


 


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


 


(ii)           the
issuance of such Letter of Credit would violate one or more policies of the
applicable Issuing Lender applicable to borrowers generally;


 


(iii)          except
as otherwise agreed by the Administrative Agent and the applicable Issuing
Lender, such Letter of Credit is in an initial stated amount less than
$100,000;


 


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


 


(v)           a
default of any Lender’s obligations to fund under Section 2.3.3
exists or any Lender is at such time a Defaulting Lender hereunder, unless the
applicable Issuing Lender has entered into satisfactory arrangements with the
Company or such Lender to eliminate such Issuing Lender’s risk with respect to
such Lender.


 


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


 


2.3.2        Procedures.


 


(a)           Each Letter of Credit shall be issued
or amended, as the case may be, upon the request of the Company delivered to
the applicable Issuing Lender (with a copy to the Administrative Agent) in the
form of an L/C Application, appropriately completed and signed by a Responsible
Officer of the Company.  Such L/C
Application must be received by the applicable Issuing Lender and the
Administrative Agent not later than 12:00 p.m. at least three (3) Business
Days (or such later date and time as the


 


27

















 


Administrative Agent and the applicable Issuing Lender
may agree in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be.  In the case of a request for an initial
issuance of a Letter of Credit, such L/C Application shall specify in form and
detail satisfactory to the applicable Issuing Lender: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a Business
Day); (B) the amount thereof; (C) the expiry date thereof; (D) the
name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the
full text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the applicable Issuing
Lender may require.  In the case of a
request for an amendment of any outstanding Letter of Credit, such L/C
Application shall specify in form and detail reasonably satisfactory to the
applicable Issuing Lender (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C) the
nature of the proposed amendment; and (D) such other matters as the
applicable Issuing Lender may require. 
Additionally, the Company shall furnish to the applicable Issuing Lender
and the Administrative Agent such other documents and information pertaining to
such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the applicable Issuing Lender or the Administrative Agent may
require.


 


(b)           Promptly after receipt of any L/C
Application, the applicable Issuing Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has received a
copy of such L/C Application from the Company and, if not, the applicable
Issuing Lender will provide the Administrative Agent with a copy thereof.  Unless the applicable Issuing Lender has
received written notice from any Lender, the Administrative Agent or any Loan
Party, at least one Business Day prior to the requested date of issuance or
amendment of the applicable Letter of Credit, that one or more applicable
conditions contained in Section 12 shall not be satisfied, then,
subject to the terms and conditions hereof, the applicable Issuing Lender
shall, on the requested date, issue a Letter of Credit for the account of the
Company or the applicable Subsidiary or enter into the applicable amendment, as
the case may be, in each case in accordance with the applicable Issuing Lender’s
usual and customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the applicable Issuing Lender a risk participation in such Letter
of Credit in an amount equal to the product of such Lender’s Pro Rata Share times
the amount of such Letter of Credit.  Each
Lender hereby irrevocably and unconditionally agrees to purchase from Bank of
America and Wells, as applicable, a risk participation in each Existing Letter
of Credit in an amount equal to the product of such Lender’s Pro Rata Share times
the amount of such Existing Letter of Credit.


 


(c)           If the Company so requests in any
applicable L/C Application, the applicable Issuing Lender may, in its sole and
absolute discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an “Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit the applicable
Issuing Lender to prevent any such extension at least once in each twelve-


 


28

















 


month period (commencing with the date of issuance of
such Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the “Non-Extension Notice Date”) in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued.  Unless otherwise directed by the
applicable Issuing Lender, the Company shall not be required to make a specific
request to the applicable Issuing Lender for any such extension.  Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the applicable Issuing Lender to permit the extension of such Letter
of Credit at any time to an expiry date not later than the Letter of Credit
Expiration Date; provided, however, that the applicable Issuing
Lender shall not permit any such extension if (i) such Issuing Lender has
determined that it would not be permitted, or would have no obligation, at such
time to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of clause (b) or (c) of Section 2.3.1
or otherwise), or (ii) it has received notice (which may be by telephone
or in writing) on or before the day that is three Business Days before the
Non-Extension Notice Date (A) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (B) from the
Administrative Agent, any Lender or the Company that one or more of the
applicable conditions specified in Section 12.2 is not then
satisfied, and in each case directing the applicable Issuing Lender not to
permit such extension.


 


(d)           Promptly after its delivery of any
Letter of Credit or any amendment to a Letter of Credit to an advising bank
with respect thereto or to the beneficiary thereof, the applicable Issuing
Lender will also deliver to the Company and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.


 


2.3.3        Drawings
and Reimbursements; Funding of Participations.


 


(a)           Upon receipt from the beneficiary of
any Letter of Credit or Existing Letter of Credit of any notice of drawing
under such Letter of Credit or Existing Letter of Credit, the applicable
Issuing Lender shall notify the Company and the Administrative Agent thereof.  Not later than 12:00 p.m. on the date of
any payment by the applicable Issuing Lender under a Letter of Credit or
Existing Letter of Credit (or, if such payment by the applicable Issuing Lender
is made after 12:00 p.m. not later than 10:00 a.m. the next
succeeding Business Day) (each such date, an “Honor Date”), the Company
shall reimburse the applicable Issuing Lender through the Administrative Agent
in an amount equal to the amount of such drawing.  If the Company fails to so reimburse the
applicable Issuing Lender by such time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the unreimbursed drawing
(the “Unreimbursed Amount”), and the amount of such Lender’s Pro Rata
Share thereof.  In such event, the
Company shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in Section 2.2(a) for
the principal amount of Base Rate Loans, but subject to the conditions set
forth in Section 12.2 (other than the delivery of a Loan Notice)
and provided that, after giving effect to such Borrowing, the Revolving
Outstandings shall not exceed the Revolving Commitment.  Any notice given by the applicable Issuing Lender
or the Administrative Agent pursuant to this Section 2.3.3(a)


 


29

















 


may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.


 


(b)           Each Lender shall upon any notice
pursuant to Section 2.3.3(a) make funds available to the
Administrative Agent for the account of the applicable Issuing Lender at the
Administrative Agent’s Office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified
in such notice by the Administrative Agent, whereupon, subject to the
provisions of Section 2.3.3(c), each Lender that so makes funds available
shall be deemed to have made a Base Rate Loan to the Company in such
amount.  The Administrative Agent shall
remit the funds so received to the applicable Issuing Lender.


 


(c)           With respect to any Unreimbursed
Amount that is not fully refinanced by a Borrowing of Base Rate Loans because
the conditions set forth in Section 12.2 cannot be satisfied or for
any other reason, the Company shall be deemed to have incurred from the
applicable Issuing Lender an L/C Borrowing in the amount of the Unreimbursed Amount
that is not so refinanced, which L/C Borrowing shall be due and payable on
demand (together with interest) and shall bear interest at the Default
Rate.  In such event, each Lender’s
payment to the Administrative Agent for the account of the applicable Issuing
Lender pursuant to Section 2.3.3(b) shall be deemed payment in
respect of its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation obligation under
this Section 2.3.3.


 


(d)           Until each Lender funds its Revolving
Loan or L/C Advance pursuant to this Section 2.3.3 to reimburse the
applicable Issuing Lender for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Pro Rata Share of such amount shall be
solely for the account of the applicable Issuing Lender.


 


(e)           Each Lender’s obligation to make
Revolving Loans or L/C Advances to reimburse the applicable Issuing Lender for
amounts drawn under Letters of Credit (or Existing Letters of Credit), as
contemplated by this Section 2.3.3, shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
setoff, counterclaim, recoupment, defense or other right which such Lender may
have against the applicable Issuing Lender, the Company or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of an Unmatured
Event of Default or Event of Default, or (iii) any other occurrence, event
or condition, whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.3.3
is subject to the conditions set forth in Section 12.2 (other than
delivery by the Company of a Loan Notice). 
No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Company to reimburse the applicable Issuing Lender for the
amount of any payment made by the applicable Issuing Lender under any Letter of
Credit (or under any Existing Letter of Credit), together with interest as provided
herein.


 


30
















 


(f)            If any Lender fails to make
available to the Administrative Agent for the account of the applicable Issuing
Lender any amount required to be paid by such Lender pursuant to the foregoing
provisions of this Section 2.3.3 by the time specified in Section 2.3.3(b),
the applicable Issuing Lender shall be entitled to recover from such Lender
(acting through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the date on
which such payment is immediately available to the applicable Issuing Lender at
a rate per annum equal to the greater of the Federal Funds Rate and a rate
determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.  A certificate of the applicable Issuing
Lender submitted to any Lender (through the Administrative Agent) with respect
to any amounts owing under this clause (f) shall be conclusive absent
manifest error.


 


2.3.4        Repayment
of Participations.


 


(a)           At any time after the applicable
Issuing Lender has made a payment under any Letter of Credit or Existing Letter
of Credit and has received from any Lender such Lender’s L/C Advance in respect
of such payment in accordance with Section 2.3.3, if the
Administrative Agent receives for the account of the applicable Issuing Lender
any payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Company or otherwise, including proceeds of cash
collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Pro Rata Share thereof (appropriately
adjusted, in the case of interest payments, to reflect the period of time
during which such Lender’s L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.


 


(b)           If any payment received by the
Administrative Agent for the account of an Issuing Lender pursuant to Section 2.3.3(a) is
required to be returned under any of the circumstances described in Section 7.5
(including pursuant to any settlement entered into by such Issuing Lender, each
Lender shall pay to the Administrative Agent for the account of such Issuing
Lender its Pro Rata Share thereof on demand of the Administrative Agent, plus
interest thereon from the date of such demand to the date such amount is
returned by such Lender, at a rate per annum equal to the Federal Funds Rate
from time to time in effect.  The
obligations of the Lenders under this clause shall survive the payment in full
of the Obligations and the termination of this Agreement.


 


2.3.5        Obligations
Absolute.


 


The
obligation of the Company to reimburse the applicable Issuing Lender for each
drawing under each Letter of Credit or Existing Letter of Credit and to repay
each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:


 


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


 


31

















 


(b)           the existence of any claim,
counterclaim, setoff, defense or other right that the Company or any Subsidiary
may have at any time against any beneficiary or any transferee of such Letter
of Credit or Existing Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the applicable Issuing
Lender or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or by such Letter of Credit or Existing Letter
of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;


 


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


 


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


 


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


 


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


 


2.3.6        Role
of Issuing Lender.


 


Each
Lender and the Company agree that, in paying any drawing under a Letter of
Credit or Existing Letter of Credit, the applicable Issuing Lender shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by such Letter of Credit or
Existing Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering
any such document.  None of the
applicable Issuing Lender, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of such Issuing
Lender shall be liable to any


 


32

















 


Lender for (i) any action taken or omitted in
connection herewith at the request or with the approval of the Lenders or the
Required Lenders, as applicable; (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit, Existing Letter of Credit or Issuer
Document, as applicable.  The Company
hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit or Existing Letter
of Credit; provided, however, that this assumption is not
intended to, and shall not, preclude the Company’s pursuing such rights and
remedies as it may have against the beneficiary or transferee at law or under
any other agreement.  None of the
applicable Issuing Lender, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the applicable
Issuing Lender shall be liable or responsible for any of the matters described
in clauses (a) through (e) of Section 2.3.5; provided,
however, that anything in such clauses to the contrary notwithstanding,
the Company may have a claim against the applicable Issuing Lender, and such
Issuing Lender may be liable to the Company, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Company which the Company proves were caused by such Issuing
Lender’s willful misconduct or gross negligence or such Issuing Lender’s
willful failure to pay under any Letter of Credit or Existing Letter of Credit
after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a
Letter of Credit or Existing Letter of Credit unless such Issuing Lender is
prevented or prohibited from so paying as a result of any order or directive of
any court or other Governmental Authority. 
In furtherance and not in limitation of the foregoing, the applicable
Issuing Lender may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary, and such Issuing Lender shall not be responsible
for the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or Existing Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, which may prove to be invalid or ineffective for any reason.


 


2.3.7        Cash
Collateral.


 


Upon
the request of the Administrative Agent, (i) if any Issuing Lender has
honored any full or partial drawing request under any Letter of Credit or
Existing Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the Letter of Credit Expiration Date, any L/C Obligation
for any reason remains outstanding, the Company shall, in each case,
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations.  The Company hereby grants
to the Collateral Agent, for the benefit of the Issuing Lenders and the
Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. 
Cash Collateral shall be maintained in blocked, non-interest bearing
deposit accounts with the Collateral Agent.


 


33

















 


2.3.8        Applicability
of ISP.


 


Unless
otherwise expressly agreed by the applicable Issuing Lender and the Company
when a Letter of Credit is issued, the rules of the ISP shall apply to
each Letter of Credit.


 


2.3.9        Conflict
with Issuer Documents.


 


In the
event of any conflict between the terms hereof and the terms of any Issuer
Document, the terms hereof shall control.


 


2.3.10      Letters
of Credit Issued for Subsidiaries.


 


Notwithstanding
that a Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Company shall be
obligated to reimburse the applicable Issuing Lender hereunder for any and all
drawings under such Letter of Credit. 
The Company hereby acknowledges that the issuance of Letters of Credit
for the account of Subsidiaries inures to the benefit of the Company, and that
the Company’s business derives substantial benefits from the businesses of such
Subsidiaries.


 


2.3.11      Letter
of Credit Amounts.


 


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


 


2.4          Swing Line Facility.


 


2.4.1        Swing
Line Facility.


 


Subject
to the terms and conditions set forth herein, the Swing Line Lender agrees, in
reliance upon the agreements of the other Lenders set forth in this Section 2.4,
to make loans (each such loan, a “Swing Line Loan”) to the Company in
Dollars from time to time on any Business Day during the Availability Period in
an aggregate amount not to exceed at any time outstanding the amount of the
Swing Line Commitment Amount, notwithstanding the fact that such Swing Line
Loans, when aggregated with the Pro Rata Share of the Outstanding Amount of
Revolving Loans and L/C Obligations of the Swing Line Lender in its capacity as
a Lender of Revolving Loans, may exceed the amount of such Lender’s Commitment;
provided, however, that after giving effect to any Swing Line
Loan, (i) the Revolving Outstandings shall not exceed the Revolving
Commitment, and (ii) the aggregate Outstanding Amount of the Revolving
Loans of any


 


34

















 


Lender, plus such Lender’s Pro Rata Share of
the Outstanding Amount of all L/C Obligations, plus such Lender’s Pro
Rata Share of the Outstanding Amount of all Swing Line Loans shall not exceed
such Lender’s Commitment, and provided, further, that the Company
shall not use the proceeds of any Swing Line Loan to refinance any outstanding
Swing Line Loan.  Within the foregoing
limits, and subject to the other terms and conditions hereof, the Company may
borrow under this Section 2.4, prepay under Section 6.2,
and reborrow under this Section 2.4.  Each Swing Line Loan shall be a Base Rate
Loan.  Immediately upon the making of a
Swing Line Loan, each Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Swing Line Lender a risk
participation in such Swing Line Loan in an amount equal to the product of such
Lender’s Pro Rata Share times the amount of such Swing Line Loan.


 


2.4.2        Borrowing
Procedures.


 


Each
Borrowing of Swing Line Loans shall be made upon the Company’s irrevocable
notice to the Swing Line Lender and the Administrative Agent, which may be
given by telephone.  Each such notice
must be received by the Swing Line Lender and the Administrative Agent not
later than 1:00 p.m. on the requested borrowing date, and shall specify (i) the
amount to be borrowed, which shall be a minimum principal amount of $250,000
and integral multiples of $100,000 in excess thereof, and (ii) the
requested borrowing date, which shall be a Business Day.  Each such telephonic notice must be confirmed
promptly by delivery to the Swing Line Lender and the Administrative Agent of a
written Swing Line Loan Notice, appropriately completed and signed by a
Responsible Officer of the Company. 
Promptly after receipt by the Swing Line Lender of any telephonic Swing
Line Loan Notice, the Swing Line Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has also
received such Swing Line Loan Notice and, if not, the Swing Line Lender will
notify the Administrative Agent (by telephone or in writing) of the contents
thereof.  Unless the Swing Line Lender
has received notice (by telephone or in writing) from the Administrative Agent
(including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Borrowing of Swing Line Loans (A) directing the Swing Line
Lender not to make such Swing Line Loan as a result of the limitations set
forth in the proviso to the first sentence of Section 2.4.1, or (B) that
one or more of the applicable conditions specified in Section 12 is
not then satisfied, then, subject to the terms and conditions hereof, the Swing
Line Lender will, not later than 3:00 p.m. on the borrowing date specified
in such Swing Line Loan Notice, make the amount of its Swing Line Loan
available to the Company.


 


2.4.3        Refinancing
of Swing Line Loans.


 


(a)           The Swing Line Lender at any time in
its sole and absolute discretion may request, on behalf of the Company (which
hereby irrevocably requests and authorizes the Swing Line Lender to so request
on its behalf), that each Lender make a Base Rate Loan in an amount equal to
such Lender’s Pro Rata Share of the amount of Swing Line Loans then
outstanding.  Such request shall be made
in writing (which written request shall be deemed to be a Loan Notice for
purposes hereof) and in accordance with the requirements of Section 2.2.1,
without regard to the minimum and multiples specified 


 


35

















 


therein for the principal amount of Base Rate Loans,
but subject to the conditions set forth in Section 12.2 (other than
the delivery of a Loan Notice) and provided that, after giving effect to such
Borrowing, the Revolving Outstandings shall not exceed the Revolving
Commitment.  The Swing Line Lender shall
furnish the Company with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent.  Each Lender shall make an amount equal to its
Pro Rata Share of the amount specified in such Loan Notice available to the
Administrative Agent in immediately available funds for the account of the
Swing Line Lender at the Administrative Agent’s Office not later than 1:00 p.m.
on the day specified in such Loan Notice, whereupon, subject to Section 2.4.3(b),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Company in such amount. 
The Administrative Agent shall remit the funds so received to the Swing
Line Lender.


 


(b)           If for any reason any Swing Line Loan
cannot be refinanced by such a Borrowing of Revolving Loans in accordance with Section 2.4.3(a),
the request for Base Rate Loans submitted by the Swing Line Lender as set forth
herein shall be deemed to be a request by the Swing Line Lender that each of
the Lenders fund its risk participation in the relevant Swing Line Loan and
each Lender’s payment to the Administrative Agent for the account of the Swing
Line Lender pursuant to Section 2.4.3(a) shall be deemed
payment in respect of such participation.


 


(c)           If any Lender fails to make available
to the Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
Section 2.4.3 by the time specified in Section 2.4.3(a),
the Swing Line Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest thereon
for the period from the date such payment is required to the date on which such
payment is immediately available to the Swing Line Lender at a rate per annum
equal to the greater of the Federal Funds Rate and a rate determined by the
Swing Line Lender in accordance with banking industry rules on interbank
compensation.  A certificate of the Swing
Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (c) shall be conclusive
absent manifest error.


 


(d)           Each Lender’s obligation to make
Revolving Loans or to purchase and fund risk participations in Swing Line Loans
pursuant to this Section 2.4.3 shall be absolute and unconditional
and shall not be affected by any circumstance, including (i) any setoff,
counterclaim, recoupment, defense or other right that such Lender may have
against the Swing Line Lender, the Company or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of an Unmatured Event of
Default or Event of Default or (ii) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Lender’s obligation to make Revolving Loans pursuant to this Section 2.4.3
is 


subject to the conditions set forth in Section 12.2.  No such purchase or funding of risk
participations shall relieve or otherwise impair the obligation of the Company
to repay Swing Line Loans, together with interest as provided herein.


 


36

















 


2.4.4        Repayment
of Participations.


 


(a)           At any time after any Lender has
purchased and funded a risk participation in a Swing Line Loan, if the Swing
Line Lender receives any payment on account of such Swing Line Loan, the Swing
Line Lender will distribute to such Lender its Pro Rata Share of such payment
(appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender’s risk participation was funded) in the
same funds as those received by the Swing Line Lender.


 


(b)           If any payment received by the Swing
Line Lender in respect of principal or interest on any Swing Line Loan is
required to be returned by the Swing Line Lender under any of the circumstances
described in Section 7.05 (including pursuant to any settlement
entered into by the Swing Line Lender in its discretion), each Lender shall pay
to the Swing Line Lender its Pro Rata Share thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate.  The Administrative Agent will make
such demand upon the request of the Swing Line Lender.  The obligations of the Lenders under this clause
shall survive the payment in full of the Obligations and the termination of
this Agreement.


 


2.4.5        Interest
for Account of Swing Line Lender.


 


The
Swing Line Lender shall be responsible for invoicing the Company for interest
on the Swing Line Loans.  Until each
Lender funds its Revolving Loans that are Base Rate Loans or risk participation
pursuant to this Section 2.4 to refinance such Lender’s Pro Rata
Share of any Swing Line Loan, interest in respect of such Pro Rata Share shall
be solely for the account of the Swing Line Lender.


 


2.4.6        Payments
Directly to Swing Line Lender.


 


The
Company shall make all payments of principal and interest in respect of the
Swing Line Loans directly to the Swing Line Lender.


 


2.5          Commitments Several.


 


The
failure of any Lender to make a requested Loan on any date shall not relieve
any other Lender of its obligation (if any) to make a Loan on such date, but no
Lender shall be responsible for the failure of any other Lender to make any
Loan to be made by such other Lender.


 


2.6          Certain Conditions.


 


Except as otherwise provided in Sections 2.3.3(e) and
2.4.3 of this Agreement, no Lender shall have an obligation to make any
Loan, or to permit the continuation of or any conversion into any LIBOR Loan,
and the applicable Issuing Lender shall not have any obligation to issue any
Letter of Credit, if an Event of Default or Unmatured Event of Default exists.


 


37

















 


SECTION 3


 


EVIDENCING
OF LOANS


 


3.1          Notes.


 


The Loans of each Lender shall be evidenced by a Note,
with appropriate insertions, payable to the order of such Lender in a face
principal amount equal to the sum of such Lender’s Revolving Commitment.


 


3.2          Recordkeeping.


 


The Administrative Agent, on behalf of each Lender,
shall record in its records, the date and amount of each Loan made by each
Lender, each repayment or conversion thereof and, in the case of each LIBOR
Loan, the dates on which each Interest Period for such Loan shall begin and
end.  The aggregate unpaid principal
amount so recorded shall be rebuttably presumptive evidence of the principal amount
of the Loans owing and unpaid.  The
failure to so record any such amount or any error in so recording any such
amount shall not, however, limit or otherwise affect the Obligations of the
Company hereunder or under any Note to repay the principal amount of the Loans
hereunder, together with all interest accruing thereon.


 


SECTION 4


 


INTEREST


 


4.1          Interest Rates.


 


The Company promises to pay interest on the unpaid
principal amount of each Loan for the period commencing on the date of such
Loan until such Loan is paid in full as follows:


 


(a)         at all times while such Loan is a Base
Rate Loan, at a rate per annum equal to the sum of the Base Rate from time to
time in effect plus the Base Rate Margin from time to time in effect; and


 


(b)        at all times while such Loan is a LIBOR
Loan, at a rate per annum equal to the sum of the LIBOR Rate applicable to each
Interest Period for such Loan plus the LIBOR Margin from time to time in
effect;


 


provided that at any time an Event of Default exists, unless
the Required Lenders otherwise consent, the interest rate applicable to each
Loan shall be increased by 2% per annum (and, in the case of Obligations not
bearing interest, such Obligations shall bear interest at the Base Rate
applicable to Revolving Loans plus 2% per annum), provided  further
that such increase may thereafter be rescinded by the Required Lenders,
notwithstanding Section 15.1. 
Notwithstanding


 


38

















 


the foregoing, upon the occurrence of an Event of
Default under Section 13.1.1 or 13.1.4, such increase shall
occur automatically.


 


4.2          Interest Payment Dates.


 


Accrued interest on each Base Rate Loan shall be
payable in arrears on the last day of each calendar quarter and at
maturity.  Accrued interest on each LIBOR
Loan shall be payable on the last day of each Interest Period relating to such
Loan (and, in the case of a LIBOR Loan with an Interest Period in excess of
three months, on the three-month anniversary of the first day of such Interest
Period), upon a prepayment of such Loan, and at maturity.  After maturity, and at any time an Event of
Default exists, accrued interest on all Loans shall be payable on demand.


 


4.3          Setting and Notice of LIBOR Rates.


 


The applicable LIBOR Rate for each Interest Period
shall be determined by the Administrative Agent, and notice thereof shall be
given by the Administrative Agent promptly to the Company and each Lender.  Each determination of the applicable LIBOR
Rate by the Administrative Agent shall be conclusive and binding upon the
parties hereto, in the absence of demonstrable error.  The Administrative Agent shall, upon written
request of the Company or any Lender, deliver to the Company or such Lender a
statement showing the computations used by the Administrative Agent in determining
any applicable LIBOR Rate hereunder.


 


4.4          Computation of Interest.


 


All
computations of interest for Base Rate Loans when the Base Rate is determined
by Bank of America’s “prime rate” shall be made on the basis of a year of 365
or 366 days, as the case may be, and actual days elapsed.  All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more fees or interest, as applicable, being paid than if computed on
the basis of a 365-day year).  Interest
shall accrue on each Loan for the day on which the Loan is made, and shall not
accrue on a Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day
on which it is made shall bear interest for one day.  Each determination by the Administrative
Agent of an interest rate or fee hereunder shall be conclusive and binding for
all purposes, absent manifest error.


 


If, as a result of any
restatement of or other adjustment to the financial statements of the Borrower
or for any other reason, the Borrower or the Lenders determine that (i) the
Total Debt to EBITDA Ratio as calculated by the Borrower as of any applicable
date was inaccurate and (ii) a proper calculation of the Total Debt to
EBITDA Ratio would have resulted in higher pricing for such period, the
Borrower shall immediately and retroactively be obligated to pay to the
Administrative Agent for the account of the applicable Lenders or the Issuing
Lender, as the case may be, promptly on demand by the Administrative Agent (or,
after the occurrence of an actual or deemed entry of an order for relief with
respect to the Borrower under the bankruptcy code of the United States,
automatically and without further action by the Administrative Agent, any
Lender or the Issuing Lender), an amount equal to the excess of the amount of
interest and fees that should have been paid for such period over the amount of
interest and fees actually paid for


 


39

















 


such period.  This paragraph shall not limit the rights of
the Administrative Agent, any Lender or the L/C Issuer, as the case may be,
under Section 2.3.3, 5.2 or 4.1 or under Section 13.  The Borrower’s obligations under this
paragraph shall survive the termination of the Commitments of all of the
Lenders and the repayment of all other Obligations hereunder.


 


SECTION 5


 


FEES


 


5.1          Non-Use Fee.


 


The
Company agrees to pay to the Administrative Agent for the account of each Lender
a non-use fee, for the period from the Closing Date to the Termination Date, at
the Non-Use Fee Rate in effect from time to time of such Lender’s Pro Rata
Share (as adjusted from time to time) of the unused amount of the Revolving
Commitment.  For purposes of calculating
usage under this Section, the Revolving Commitment shall be deemed used to the
extent of aggregate Outstanding Amount of all Revolving Loans and L/C
Obligations.  Such non-use fee shall be
payable in arrears on the last day of each calendar quarter and on the
Termination Date for any period then ending for which such non-use fee shall
not have previously been paid.  The
non-use fee shall be computed for the actual number of days elapsed on the basis
of a year of 360 days.  For purposes of
clarification, Swing Line Loans shall not be considered outstanding for
purposes of determining the non-use fee.


 


5.2          Letter of Credit Fees.


 


(a)           The
Company agrees to pay to the Administrative Agent for the account of each
Lender a letter of credit fee for each Letter of Credit and Existing Letter of
Credit equal to the L/C Fee Rate in effect from time to time of such Lender’s
Pro Rata Share (as adjusted from time to time) of the undrawn amount of such
Letter of Credit or Existing Letter of Credit, as applicable (computed for the
actual number of days elapsed on the basis of a year of 360 days); provided
that, unless the Required Lenders otherwise consent, the rate applicable to
each Letter of Credit and each Existing Letter of Credit shall be increased by
2% per annum at any time that an Event of Default exists.  Such letter of credit fee shall be payable in
arrears on the last day of each calendar quarter and on the Termination Date
(or such later date on which such Letter of Credit or Existing Letter of Credit
expires or is terminated) for the period from the date of the issuance of each
Letter of Credit (other than any Existing Letter of Credit) (or the last day on
which the letter of credit fee was paid with respect thereto), and from the
Closing Date with respect to the Existing Letters of Credit, to the date such
payment is due or, if earlier, the date on which such Letter of Credit or
Existing Letter of Credit expired or was terminated.


 


(b)           In
addition, with respect to each Letter of Credit and Existing Letter of Credit,
the Company agrees to pay to the applicable Issuing Lender, Bank of America or
Wells, as applicable, for its own account, (i) such fees and expenses as
such Issuing Lender, Bank of America or Wells, as applicable, customarily
requires in connection with the issuance,


 


40

















 


negotiation, processing and/or administration of
letters of credit in similar situations and (ii) a letter of credit
fronting fee in the amount of 0.125% per annum of the maximum amount available
to be drawn under such Letter of Credit or Existing Letter of Credit, due and
payable quarterly in arrears on the Business Day immediately following the last
day of each March, June, September and December, commencing with the first
such date to occur after the issuance of such Letter of Credit (or with respect
to any Existing Letter of Credit, the first such date to occur after the
Closing Date), and on the Letter of Credit Expiration Date.


 


5.3          Administrative Agent’s Fees.


 


The
Company agrees to pay to the Administrative Agent such agent’s fees as are
mutually agreed to from time to time by the Company and the Administrative
Agent including the fees set forth in the Fee Letter.


 


SECTION 6


 


INCREASE,
REDUCTION OR TERMINATION OF THE REVOLVING COMMITMENT; PREPAYMENTS


 


6.1          Increase, Reduction or Termination
of the Revolving Commitment.


 


6.1.1        Increase
of the Revolving Commitment.


 


From
time to time after the Closing Date and prior to the Termination Date, the
Company may, at its option, with the approval of the Administrative Agent, and
subject to the following conditions, request to increase the aggregate
Revolving Commitment by up to an additional $40,000,000.  In addition to the approval of the
Administrative Agent, any such increase shall be conditioned upon each of the
following:


 


(a)           no Event of Default or Unmatured
Event of Default shall have occurred and be continuing,


 


(b)           The Company shall have obtained a
commitment from an existing Lender or a commitment to participate as an
additional Lender hereunder from a financial institution which is reasonably
acceptable to the Administrative Agent, which commitment shall be in writing
and be in a minimum amount of $5,000,000 or an integral multiple thereof,


 


(c)           Such Lender increasing its Commitment
or such proposed additional Lender shall have executed an amendment to this
Agreement in form and substance satisfactory to the Administrative Agent
pursuant to which such Lender increases its Commitment or such additional
Lender shall become a Lender hereunder with a Revolving Commitment; and


 


41
















 


(d)           The Loan Parties shall
have executed and/or delivered to the Administrative Agent such additional
instruments, documents, certificates and agreements as the Administrative Agent
shall reasonably request in connection with the foregoing and to confirm that
such increase in the Revolving Commitment hereunder has been duly authorized
and approved by each of the Loan Parties.


 


Upon satisfaction of all such conditions precedent,
the Commitments shall have been increased as appropriate and such proposed additional
Lender, if any, shall become a Lender hereunder on and subject to the terms and
conditions of this Agreement.


 


6.1.2        Voluntary Reduction or Termination of the
Revolving Commitment.


 


The
Company may from time to time on at least five Business Days’ prior written
notice received by the Administrative Agent (which shall promptly advise each
Lender thereof) permanently reduce the Revolving Commitment to an amount not
less than the Revolving Outstandings. 
Any such reduction shall be in an amount not less than $5,000,000 or a
higher integral multiple of $1,000,000. 
Concurrently with any reduction of the Revolving Commitment to zero, the
Company shall pay all interest on the Revolving Loans, all non-use fees and all
letter of credit fees and shall Cash Collateralize in full all obligations
arising with respect to the Letters of Credit and Existing Letters of Credit.


 


6.1.3        All Reductions of the Revolving
Commitment.


 


All
reductions of the Revolving Commitment shall reduce the Commitments ratably
among the Lenders according to their respective Pro Rata Shares.


 


6.2                               Repayments.


 


6.2.1        Voluntary Repayments.


 


The
Company may from time to time repay the Loans (without any corresponding
reduction in the Revolving Commitment) in whole or in part; provided
that the Company shall give the Administrative Agent (which shall promptly
advise each Lender) notice thereof not later than Noon, on the day of such
repayment (which shall be a Business Day), specifying the Loans to be repaid
and the date and amount of repayment.  Any such partial repayment shall be in an
amount equal to $250,000 or a higher integral multiple of $50,000.


 


6.2.2        Mandatory Repayments.


 


(a)           The Company shall make
a repayment of the Loans (without any corresponding reduction in the Revolving
Commitment) upon the occurrence of any of the following (each a “Mandatory
Repayment Event”) at the following 


 


42

















 


times and in the following amounts (such applicable
amounts being referred to as “Designated Proceeds”):


 


(i)            Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any Asset
Disposition, in an amount equal to 100% of such Net Cash Proceeds.


 


(ii)           Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any issuance
of Capital Securities of any Loan Party (excluding (x) any issuance of
Capital Securities pursuant to any employee or director option program, benefit
plan or compensation program, and (y) any issuance by a Subsidiary to the
Company or another Subsidiary), in an amount equal to 100% of such Net Cash
Proceeds.


 


(iii)          Concurrently
with the receipt by any Loan Party of any Net Cash Proceeds from any issuance
of any Debt of any Loan Party (excluding Debt permitted by of Section 11.1),
in an amount equal to 100% of such Net Cash Proceeds.


 


(b)           If on any day on which
the Revolving Outstandings exceed the Revolving Commitment, the Company shall
immediately repay Revolving Loans or Cash Collateralize the outstanding Letters
of Credit, or do a combination of the foregoing, in an amount sufficient to
eliminate such excess.


 


6.3                               Manner of Repayments.


 


6.3.1        Partial Repayments.


 


Any
repayment of a LIBOR Loan on a day other than the last day of an Interest
Period therefore shall include interest on the principal amount being repaid
and shall be subject to Section 8.4.  Except as otherwise provided by this
Agreement and the other Loan Documents, and unless otherwise directed in
writing by the Company, all principal payments in respect of the Loans (other
than the Swing Line Loans) shall be applied first, to repay outstanding Base
Rate Loans and then to repay outstanding LIBOR Rate Loans in direct order of
Interest Period maturities.


 


6.4                               Final Repayment.


 


6.4.1        Revolving Loans.


 


The
Revolving Loans of each Lender shall be paid in full and the Revolving
Commitment shall terminate on the Termination Date.


 


43

















 


SECTION 7


 


MAKING
AND PRORATION OF PAYMENTS; SETOFF; TAXES


 


7.1                               Making of Payments.


 


All
payments of principal or interest on the Notes, and of all fees, shall be made
by the Company to the Administrative Agent in immediately available funds at
the office specified by the Administrative Agent not later than 1:00 P.M.,
on the date due; and funds received after that hour shall be deemed to have
been received by the Administrative Agent on the following Business Day.  The Administrative Agent shall promptly remit
to each Lender its share of all such payments received in collected funds by
the Administrative Agent for the account of such Lender.  All payments under Section 8.1
shall be made by the Company directly to the Lender entitled thereto without
setoff, counterclaim or other defense.


 


7.2                               Application of Certain Payments.


 


So
long as no Event of Default has occurred and is continuing, (a) payments
matching specific scheduled payments then due shall be applied to those
scheduled payments and (b) voluntary and mandatory prepayments shall be
applied as set forth in Sections 6.2 and 6 3.   After the occurrence and during the
continuance of an Event of Default, all amounts collected or received by the
Administrative Agent or any Lender as proceeds from the sale of, or other
realization upon, all or any part of the collateral shall be applied as the
Administrative Agent shall determine in its discretion or, in the absence of a
specific determination by the Administrative Agent, as set forth in the
Guaranty and Collateral Agreement. 
Concurrently with each remittance to any Lender of its share of any such
payment, the Administrative Agent shall advise such Lender as to the
application of such payment.


 


7.3                               Due Date Extension.


 


If any
payment of principal or interest with respect to any of the Loans, or of any
fees, falls due on a day which is not a Business Day, then such due date shall
be extended to the immediately following Business Day (unless, in the case of a
LIBOR Loan, such immediately following Business Day is the first Business Day
of a calendar month, in which case such due date shall be the immediately
preceding Business Day) and, in the case of principal, additional interest
shall accrue and be payable for the period of any such extension.


 


7.4                               Setoff.


 


The
Company agrees that the Collateral Agent and each Lender have all rights of
set-off and bankers’ lien provided by applicable law, and in addition thereto,
the Company agrees that at any time any Event of Default exists, the
Administrative Agent and each Lender may apply to the payment of any
Obligations of the Company hereunder, whether or not then due, any and all balances,
credits, deposits, accounts or moneys of the Company then or thereafter with
the Collateral Agent or such Lender.


 


44

















 


7.5                               Proration of Payments.


 


If any
Lender shall obtain any payment or other recovery (whether voluntary,
involuntary, by application of offset or otherwise, on account of (a) principal
of or interest on any Loan, but excluding (i) any payment pursuant to Section 8.7
or 15.6 and (ii) payments of interest on any Affected Loan) or (b) its
participation in any Letter of Credit or Existing Letter of Credit) in excess
of its applicable Pro Rata Share of payments and other recoveries obtained by
all Lenders on account of principal of and interest on the Loans (or such
participation) then held by them, then such Lender shall purchase from the
other Lenders such participations in the Loans (or sub-participations in
Letters of Credit or Existing Letters of Credit) held by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided that if all or any portion
of the excess payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded and the purchase price
restored to the extent of such recovery.


 


7.6                               Taxes.


 


(a)           All payments made by the Company
hereunder or under any Loan Documents shall be made without setoff,
counterclaim, or other defense.  To the
extent permitted by applicable law, all payments hereunder or under the Loan
Documents (including any payment of principal, interest, or fees) to, or for
the benefit, of any person shall be made by the Company free and clear of and
without deduction or withholding for, or account of, any Taxes now or
hereinafter imposed by any taxing authority.


 


(b)           If the Company makes any payment
hereunder or under any Loan Document in respect of which it is required by
applicable law to deduct or withhold any Taxes, the Company shall increase the
payment hereunder or under any such Loan Document such that after the reduction
for the amount of Taxes withheld (and any taxes withheld or imposed with
respect to the additional payments required under this Section 7.6(b)),
the amount paid to the Lenders or the Administrative Agent equals the amount
that was payable hereunder or under any such Loan Document without regard to
this Section 7.6(b).  To the
extent the Company withholds any Taxes on payments hereunder or under any Loan
Document, the Company shall pay the full amount deducted to the relevant taxing
authority within the time allowed for payment under applicable law and shall
deliver to the Administrative Agent within 30 days after it has made payment to
such authority a receipt issued by such authority (or other evidence
satisfactory to the Administrative Agent) evidencing the payment of all amounts
so required to be deducted or withheld from such payment.


 


(c)           If any Lender or the Administrative Agent
is required by law to make any payments of any Taxes on or in relation to any
amounts received or receivable hereunder or under any other Loan Document, or
any Tax is assessed against a Lender or the Administrative Agent with respect
to amounts received or receivable hereunder or under any other Loan Document,
the Company will indemnify such person against (i) such Tax (and any
reasonable counsel fees and expenses associated with such Tax) and (ii) any
taxes imposed as a result of the receipt of the payment under this Section 7.6(c).  A certificate prepared in good faith as to
the 


 


45

















 


amount of such payment by such Lender or the
Administrative Agent shall, absent manifest error, be final, conclusive, and
binding on all parties.


 


(d)           (i)            To the extent permitted by applicable law, each Lender
that is not a United States person within the meaning of Code section
7701(a)(30) (a “Non-U.S.  Participant”)
shall deliver to the Company and the Administrative Agent on or prior to the
Closing Date (or in the case of a Lender that is an Assignee, on the date of
such assignment to such Lender) two accurate and complete original signed
copies of IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other
applicable form prescribed by the IRS) certifying to such Lender’s entitlement
to a complete exemption from, or a reduced rate in, United States withholding
tax on interest payments to be made hereunder or any Loan.  If a Lender that is a Non-U.S. Participant is
claiming a complete exemption from withholding on interest pursuant to Sections
87 1(h) or 881(c) of the Code, the Lender shall deliver (along with
two accurate and complete original signed copies of IRS Form W-8BEN) a
certificate in form and substance reasonably acceptable to Administrative Agent
(any such certificate, a “Withholding Certificate”).  In addition, each Lender that is a
Non-U.S.  Participant agrees that from
time to time after the Closing Date, (or in the case of a Lender that is an
Assignee, after the date of the assignment to such Lender), when a lapse in
time (or change in circumstances occurs) renders the prior certificates
hereunder obsolete or inaccurate in any material respect, such Lender shall, to
the extent permitted under applicable law, deliver to the Company and the
Administrative Agent two new and accurate and complete original signed copies
of an IRS Form W-8BEN, W-8ECI, or W-8IMY (or any successor or other
applicable forms prescribed by the IRS), and if applicable, a new Withholding
Certificate, to confirm or establish the entitlement of such Lender or the
Administrative Agent to an exemption from, or reduction in, United States
withholding tax on interest payments to be made hereunder or any Loan.


 


(ii)           Each
Lender that is not a Non-U.S. Participant (other than any such Lender which is
taxed as a corporation for U.S. federal income tax purposes) shall provide two
properly completed and duly executed copies of IRS Form W-9 (or any
successor or other applicable form) to the Company and the Administrative Agent
certifying that such Lender is exempt from United States backup withholding
tax.  To the extent that a form provided
pursuant to this Section 7.6(d)(ii) is rendered obsolete or
inaccurate in any material respect as result of change in circumstances with
respect to the status of a Lender, such Lender shall, to the extent permitted
by applicable law, deliver to the Company and the Administrative Agent revised
forms necessary to confirm or establish the entitlement to such Lender’s or
Agent’s exemption from United States backup withholding tax.


 


(iii)          The
Company shall not be required to pay additional amounts to a Lender, or
indemnify any Lender, under this Section 7.6 to the extent that
such obligations would not have arisen but for the failure of such Lender to
comply with Section 7.6(d).


 


(iv)          Each
Lender agrees to indemnify the Administrative Agent and hold the Administrative
Agent harmless for the full amount of any and all present or future Taxes and
related liabilities (including penalties, interest, additions to tax and
expenses, and any Taxes imposed by any jurisdiction on amounts payable to the
Administrative Agent under 


 


46

















 


this Section 7.6) which are imposed on or
with respect to principal, interest or fees payable to such Lender hereunder
and which are not paid by the Company pursuant to this Section 7.6,
whether or not such Taxes or related liabilities were correctly or legally
asserted.  This indemnification shall be
made within 30 days from the date the Administrative Agent makes written demand
therefore.


 


SECTION 8


 


INCREASED
COSTS; SPECIAL PROVISIONS FOR LIBOR LOANS


 


8.1          Increased Costs.


 


(a)           If, after the date hereof, the adoption
of, or any change in, any applicable law, rule or regulation, or any
change in the interpretation or administration of any applicable law, rule or
regulation by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency: (i) shall
impose, modify or deem applicable any reserve (including any reserve imposed by
the FRB, but excluding any reserve included in the determination of the LIBOR
Rate pursuant to Section 4), special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended by
any Lender; or (ii) shall impose on any Lender any other condition
affecting its LIBOR Loans, its Note or its obligation to make LIBOR Loans; and
the result of anything described in clauses (i) and (ii) above is to
increase the cost to (or to impose a cost on) such Lender (or any LIBOR Office
of such Lender) of making or maintaining any LIBOR Loan, or to reduce the
amount of any sum received or receivable by such Lender (or its LIBOR Office)
under this Agreement or under its Note with respect thereto, then upon demand
by such Lender (which demand shall be accompanied by a statement setting forth
the basis for such demand and a calculation of the amount thereof in reasonable
detail, a copy of which shall be furnished to the Administrative Agent), the
Company shall pay directly to such Lender such additional amount as will
compensate such Lender for such increased cost or such reduction, so long as
such amounts have accrued on or after the day which is 180 days prior to the
date on which such Lender first made demand therefor.


 


(b)           If any Lender shall reasonably determine
that any change in, or the adoption or phase-in of, any applicable law, rule or
regulation regarding capital adequacy, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
the compliance by any Lender or any Person controlling such Lender with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Lender’s or such
controlling Person’s capital as a consequence of such Lender’s obligations
hereunder or under any Letter of Credit or Existing Letter of Credit to a level
below that which such Lender or such controlling Person could have achieved but
for such change, adoption, phase-in or compliance (taking into consideration
such Lender’s or such controlling Person’s policies with respect to capital
adequacy) by an amount deemed by such Lender or such controlling Person to 


 


47

















 


be material, then from time to time, upon demand by
such Lender (which demand shall be accompanied by a statement setting forth the
basis for such demand and a calculation of the amount thereof in reasonable
detail, a copy of which shall be furnished to the Administrative Agent), the
Company shall pay to such Lender such additional amount as will compensate such
Lender or such controlling Person for such reduction so long as such amounts
have accrued on or after the day which is 180 days prior to the date on which
such Lender first made demand therefor.


 


8.2          Basis for Determining Interest Rate
Inadequate or Unfair.


 


If


 


(a)           the Administrative Agent reasonably
determines (which determination shall be binding and conclusive on the Company)
that by reason of circumstances affecting the interbank LIBOR market adequate
and reasonable means do not exist for ascertaining the applicable LIBOR Rate;
or


 


(b)           the
Required Lenders advise the Administrative Agent that the LIBOR Rate as
determined by the Administrative Agent for any Interest Period will not
adequately and fairly reflect the cost to such Lenders of maintaining or
funding LIBOR Loans for such Interest Period (taking into account any amount to
which such Lenders may be entitled under Section 8.1) or that the
making or funding of LIBOR Loans has become impracticable as a result of an
event occurring after the date of this Agreement which in the opinion of such
Lenders materially affects such Loans;


 


then the Administrative Agent shall promptly notify the
other parties thereof and, so long as such circumstances shall continue, (i) no
Lender shall be under any obligation to make or convert any Base Rate Loans
into LIBOR Loans and (ii) on the last day of the current Interest Period
for each LIBOR Loan, such Loan shall, unless then repaid in full, automatically
convert to a Base Rate Loan.


 


8.3          Changes in Law Rendering LIBOR Loans
Unlawful.


 


If any
change in, or the adoption of any new, law or regulation, or any change in the
interpretation of any applicable law or regulation by any governmental or other
regulatory body charged with the administration thereof, should make it (in the
good faith judgment of any Lender) unlawful for any Lender to make, maintain or
fund LIBOR Loans, then such Lender shall promptly notify each of the other
parties hereto and, so long as such circumstances shall continue, (a) such
Lender shall have no obligation to make or convert any Base Rate Loan into a
LIBOR Loan (but shall make Base Rate Loans concurrently with the making of or
conversion of Base Rate Loans into LIBOR Loans by the Lenders which are not so
affected, in each case in an amount equal to the amount of LIBOR Loans which
would be made or converted into by such Lender at such time in the absence of
such circumstances) and (b) on the last day of the current Interest Period
for each LIBOR Loan of such Lender (or, in any event, on such earlier date as
may be required by the relevant law, regulation or interpretation), such LIBOR
Loan shall, unless then repaid in full, automatically convert to a Base Rate
Loan.  Each Base Rate Loan 


 


48

















 


made by a Lender which, but for the circumstances
described in the foregoing sentence, would be a LIBOR Loan (an “Affected
Loan”) shall remain outstanding for the period corresponding to the group
of LIBOR Loans of which such Affected Loan would be a part absent such
circumstances.


 


8.4          Funding Losses.


 


The
Company hereby agrees that upon written demand by any Lender (which demand
shall be accompanied by a statement setting forth in reasonable detail the
basis for the amount being claimed, a copy of which shall be furnished to the
Administrative Agent), the Company will indemnify such Lender against any net
loss or expense which such Lender may sustain or incur (including any net loss
or expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Lender to fund or maintain any LIBOR Loan), as
reasonably determined by such Lender, as a result of (a) any payment,
prepayment or conversion of any LIBOR Loan of such Lender on a date other than
the last day of an Interest Period for such Loan (including any conversion
pursuant to Section 8.3) or (b) any failure of the Company to
borrow, convert or continue any Loan on a date specified therefor in a Loan
Notice pursuant to this Agreement; provided that written notice of such loss is
given to the Company within 180 days of its incurrence.  For this purpose, all notices to the
Administrative Agent pursuant to this Agreement shall be deemed to be
irrevocable.


 


8.5          Right of Lenders to Fund through Other
Offices.


 


Each
Lender may, if it so elects, fulfill its commitment as to any LIBOR Loan by
causing a foreign branch or Affiliate of such Lender to make such Loan; provided
that in such event for the purposes of this Agreement such Loan shall be deemed
to have been made by such Lender and the obligation of the Company to repay
such Loan shall nevertheless be to such Lender and shall be deemed held by it,
to the extent of such Loan, for the account of such branch or Affiliate.


 


8.6          Discretion of Lenders as to Manner of
Funding.


 


Notwithstanding
any provision of this Agreement to the contrary, except with regard to the
obligation to mitigate increased costs, each Lender shall be entitled to fund
and maintain its funding of all or any part of its Loans in any manner it sees
fit, it being understood, however, that for the purposes of this Agreement all
determinations hereunder shall be made as if such Lender had actually funded
and maintained each LIBOR Loan during each Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the LIBOR Rate for such
Interest Period.


 


8.7          Mitigation of Circumstances; Replacement
of Lenders.


 


(a)           Each
Lender shall promptly notify the Company and the Administrative Agent of any
event of which it has knowledge which will result in, and will use reasonable
commercial efforts available to it (and not, in such Lender’s reasonable good
faith judgment, otherwise disadvantageous to such Lender) to mitigate or avoid,
(i) any obligation by the Company to pay any amount pursuant to Section 7.6
or 8.1 or (ii) the occurrence of any circumstances described 


 


49

















 


in Section 8.2 or (and, if any Lender has
given notice of any such event described in clause (i) or (ii) above
and thereafter such event ceases to exist, such Lender shall promptly so notify
the Company and the Administrative Agent). 
Without limiting the foregoing, each Lender will designate a different
funding office if such designation will avoid (or reduce the cost to the
Company of) any event described in clause (i) or (ii) above and such
designation will not, in such Lender’s reasonable good faith judgment, be
otherwise disadvantageous to such Lender.


 


(b)           If
(i) the Company becomes obligated to pay additional amounts to any Lender
pursuant to Section 7.6 or 8.1 or (ii) any Lender gives
notice of the occurrence of any circumstances described in Section 8.2
or 8.3  or (iii) a Lender (a “Non-Consenting
Lender”) does not consent to a proposed change, waiver, discharge or
termination with respect to any Loan Document that has been approved by the Required
Lenders as provided in Section 15.1 but requires unanimous consent of all
Lenders or all Lenders directly affected thereby (as applicable) or (iv) any
Lender becomes a Defaulting Lender, the Company may designate another bank
which is acceptable to the Administrative Agent and the Issuing Lenders in
their reasonable discretion (such other bank being called a “Replacement
Lender”) to purchase the Loans of such Lender and such Lender’s rights
hereunder, without recourse to or warranty by, or expense to, such Lender, for
a purchase price equal to the outstanding principal amount of the Loans payable
to such Lender plus any accrued but unpaid interest on such Loans and all
accrued but unpaid fees owed to such Lender and any other amounts payable to
such Lender under this Agreement, and to assume all the obligations of such
Lender hereunder, and, upon such purchase and assumption (pursuant to an
Assignment Agreement), such Lender shall no longer be a party hereto or have
any rights hereunder (other than rights with respect to indemnities and similar
rights applicable to such Lender prior to the date of such purchase and
assumption) and shall be relieved from all obligations to the Company
hereunder, and the Replacement Lender shall succeed to the rights and obligations
of such Lender hereunder.  In the case of
any assignment resulting from a Non-Consenting Lender’s failure to consent to a
proposed change, waiver, discharge or termination with respect to any Loan
Document, it is required that (a) the applicable Replacement Lender
consents to the proposed change, waiver, discharge or termination and (b) to
the extent such Non-Consenting Lender is an Issuing Lender that has issued
Letters of Credit hereunder that remain outstanding at such time, such Letters
of Credit have been returned to such Non-Consenting Lender; provided that the
failure by such Non-Consenting Lender to execute and deliver an Assignment
Agreement shall not impair the validity of the removal of such Non-Consenting
Lender and the mandatory assignment of such Non-Consenting Lender’s Commitments
and outstanding Loans and participations in Letters of Credit in pursuant to
this Section 8.7 shall nevertheless be effective without the execution by
such Non-Consenting Lender of an Assignment Agreement.


 


8.8          Conclusiveness of Statements; Survival of
Provisions.


 


Determinations
and statements of any Lender pursuant to Section 8.1, 8.2, 8.3
or 8.4 shall be conclusive absent demonstrable error.  Lenders may use reasonable averaging and
attribution methods in determining compensation under Sections 8.1 and,
and the provisions of such Sections shall survive repayment of the Obligations,
cancellation of any Notes, expiration or termination of the Letters of Credit
and/or Existing Letters of Credit and termination of this Agreement.


 


50
















 


SECTION 9


 


REPRESENTATIONS
AND WARRANTIES


 


To
induce the Administrative Agent, the Collateral Agent and the Lenders to enter
into this Agreement and to induce the Lenders to make Loans and issue and
participate in Letters of Credit and Existing Letters of Credit hereunder, the
Company represents and warrants to the Administrative Agent, the Collateral
Agent and the Lenders that:


 


9.1          Organization.


 


Each
Loan Party and each Guarantor is validly existing and in good standing under
the laws of its jurisdiction of organization; and each Loan Party is duly
qualified to do business in each jurisdiction where, because of the nature of
its activities or properties, such qualification is required, except for such
jurisdictions where the failure to so qualify could not reasonably be expected
to have a Material Adverse Effect.


 


9.2          Authorization; No Conflict.


 


Each
Loan Party and each Guarantor is duly authorized to execute and deliver each
Loan Document to which it is a party, the Company is duly authorized to borrow monies
hereunder and each Loan Party and each Guarantor is duly authorized to perform
its Obligations under each Loan Document to which it is a party.  The execution, delivery and performance by
each Loan Party and each Guarantor of each Loan Document to which it is a
party, and the borrowings by the Company hereunder, do not and will not (a) require
any consent or approval of any governmental agency or authority (other than any
consent or approval which has been obtained and is in full force and effect), (b) conflict
with (i) any provision of law, (ii) the charter, by-laws or other
organizational documents of any Loan Party or Guarantor or (iii) any
agreement, indenture, instrument or other document, or any judgment, order or
decree, which is binding upon any Loan Party or Guarantor or any of their
respective properties or (c) require, or result in, the creation or
imposition of any Lien on any asset of any Loan Party or Guarantor (other than
Liens in favor of the Collateral Agent created pursuant to the Collateral
Documents).


 


9.3          Validity and Binding Nature.


 


Each
of this Agreement and each other Loan Document to which any Loan Party is a
party is the legal, valid and binding obligation of such Person, enforceable
against such Person in accordance with its terms, subject to bankruptcy,
insolvency and similar laws affecting the enforceability of creditors’ rights
generally and to general principles of equity.


 


9.4          Financial Condition.


 


The
audited consolidated financial statements of the Company and its Subsidiaries
as at December 31, 2007 and the unaudited consolidated financial
statements of the Company and the 


 


51

















 


Subsidiaries as at March 31, 2008, copies of each
of which have been delivered to each Lender, were prepared in accordance with
GAAP (subject, in the case of such unaudited statements, to the absence of
footnotes and to normal year-end adjustments) and present fairly in all
material respects the consolidated financial condition of the Company and its
Subsidiaries as at such dates and the results of their operations for the
periods then ended.


 


9.5          No Material Adverse Change.


 


Since December 31,
2007, there has been no event or circumstance, either individually or in the
aggregate, that has had or could reasonably be expected to have a Material
Adverse Effect.


 


9.6          Litigation and Contingent Liabilities.


 


No
litigation (including derivative actions), arbitration proceeding or
governmental investigation or proceeding is pending or, to the Company’s knowledge,
threatened, against any Loan Party or Guarantor which could reasonably be
expected to have a Material Adverse Effect, except as set forth in Schedule
9.6.  Other than any liability
incident to such litigation or proceedings, no Loan Party or Guarantor has any
material contingent liabilities not listed on Schedule 9.6 or permitted
by Section 11.1 that could reasonably be expected to result in a
Material Adverse Effect.


 


9.7          Ownership of Properties; Liens.


 


Each
Loan Party and each Guarantor owns good and, in the case of real property,
marketable title to all of its properties and assets, real and personal,
tangible and intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and clear of all
Liens, charges and claims (including infringement claims with respect to
patents, trademarks, service marks, copyrights and the like) except Permitted
Liens.


 


9.8          Equity Ownership; Subsidiaries.


 


Except
as otherwise set forth on Schedule 9.8, all issued and outstanding
Capital Securities of each Subsidiary and Joint Venture are duly authorized and
validly issued, fully paid, non-assessable, and (in the case of Subsidiaries
and Joint Ventures) free and clear of all Liens other than those in favor of
the Collateral Agent, and such securities were issued in compliance with all
applicable state and federal laws concerning the issuance of securities.  Schedule 9.8 sets forth the authorized
Capital Securities and jurisdiction of organization of each Subsidiary and
Joint Venture as of the Closing Date. 
All of the issued and outstanding Capital Securities of each
Wholly-Owned Subsidiary are, directly or indirectly, owned by the Company.  As of the Closing Date, except as set forth
on Schedule 9.8, there are no pre-emptive or other outstanding rights,
options, warrants, conversion rights or other similar agreements or
understandings for the purchase or acquisition of any Capital Securities of any
Subsidiary.


 


52

















 


9.9                               Pension Plans.


 


(a)           The
Unfunded Liability of all Pension Plans does not in the aggregate exceed twenty
percent of the Total Plan Liability for all such Pension Plans.  Each Pension Plan complies in all material
respects with all applicable requirements of law and regulations.  No contribution failure under Section 412
of the Code, Section 302 of ERISA or the terms of any Pension Plan has
occurred with respect to any Pension Plan, sufficient to give rise to a Lien
under Section 3 02(f) of ERISA, or otherwise to have a Material
Adverse Effect.  There are no pending or,
to the knowledge of Company, threatened, claims, actions, investigations or
lawsuits against any Pension Plan, any fiduciary of any Pension Plan, or Company
or other any member of the Controlled Group with respect to a Pension Plan or a
Multiemployer Pension Plan which could reasonably be expected to have a
Material Adverse Effect.  Neither the
Company nor any other member of the Controlled Group has engaged in any
prohibited transaction (as defined in Section 4975 of the Code or Section 406
of ERISA) in connection with any Pension Plan or Multiemployer Pension Plan
which could reasonably be expected to have a Material Adverse Effect.  Within the past five years, neither the
Company nor any other member of the Controlled Group has engaged in a
transaction which resulted in a Pension Plan with an Unfunded Liability being
transferred out of the Controlled Group, which could reasonably be expected to
have a Material Adverse Effect.  No
Termination Event has occurred or is reasonably expected to occur with respect
to any Pension Plan, which could reasonably be expected to have a Material
Adverse Effect.


 


(b)           All
contributions (if any) have been made to any Multiemployer Pension Plan that
are required to be made by the Company or any other member of the Controlled
Group under the terms of the plan or of any collective bargaining agreement or
by applicable law; neither the Company nor any other member of the Controlled
Group has withdrawn or partially withdrawn from any Multiemployer Pension Plan,
incurred any withdrawal liability with respect to any such plan or received
notice of any claim or demand for withdrawal liability or partial withdrawal
liability from any such plan, and no condition has occurred which, if
continued, could result in a withdrawal or partial withdrawal from any such
plan, if any such withdrawal could reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any other member of the Controlled
Group has received any notice that any Multiemployer Pension Plan is in
reorganization, that increased contributions may be required to avoid a
reduction in plan benefits or the imposition of any excise tax if such
increased contributions could reasonably be expected to have a Material Adverse
Effect, that any such plan is or has been funded at a rate less than that
required under Section 412 of the Code, that any such plan is or may be
terminated, or that any such plan is or may become insolvent.


 


9.10                        Investment Company Act.


 


No
Loan Party is an “investment company” or a company “controlled” by an “investment
company” or a “subsidiary” of an “investment company,” within the meaning of
the Investment Company Act of 1940.


 


53

















 


9.11        Regulation U.


 


The
Company is not engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock.


 


9.12        Taxes.


 


Each
Loan Party has timely filed all tax returns and reports required by law to have
been filed by it and has paid all taxes and governmental charges due and
payable with respect to such return, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on
its books.  The Loan Parties have made
adequate reserves on their books and records in accordance with GAAP for all
taxes that have accrued but which are not yet due and payable.  No Loan Party has participated in any
transaction that relates to a year of the taxpayer (which is still open under
the applicable statute of limitations) which is a “reportable transaction”
within the meaning of Treasury Regulation Section 1.601 l-4(b)(2) (irrespective
of the date when the transaction was entered into).


 


9.13        Solvency, etc.


 


On the
Closing Date, and immediately prior to and after giving effect to the issuance
of each Letter of Credit, participation in each Existing Letter of Credit and
each borrowing hereunder and the use of the proceeds thereof, with respect to
each Loan Party, individually, (a) the fair value of its assets is greater
than the amount of its liabilities (including disputed, contingent and
unliquidated liabilities) as such value is established and liabilities
evaluated on a going concern basis in accordance with GAAP, (b) the
present fair saleable value of its assets is not less than the amount that will
be required to pay the probable liability on its debts as they become absolute
and matured, (c) it is able to realize upon its assets and pay its debts
and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business, (d) it does
not intend to, and does not believe that it will, incur debts or liabilities
beyond its ability to pay as such debts and liabilities mature and (e) it
is not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which its property would constitute unreasonably
small capital.


 


9.14        Environmental Matters.


 


The
on-going operations of the Company, its Subsidiaries and the Joint Ventures
comply in all respects with all Environmental Laws, except such non-compliance
which could not (if enforced in accordance with applicable law) reasonably be
expected to result, either individually or in the aggregate, in a Material
Adverse Effect.  Each of the Company, its
Subsidiaries and the Joint Ventures has obtained, and maintained in good
standing, all licenses, permits, authorizations, registrations and other
approvals required under any Environmental Law and required for their
respective ordinary course operations, and for their reasonably anticipated
future operations, and each of the Company, its Subsidiaries and the Joint
Ventures is in compliance with all terms and conditions thereof, except where
the failure to do so could not reasonably be expected to result in material
liability to any of the Company, its Subsidiaries and 


 


54

















 


the Joint Ventures and could not reasonably be
expected to result, either individually or in the aggregate, in a Material
Adverse Effect.  None of the Company, its
Subsidiaries or the Joint Ventures or any of its properties or operations is
subject to, or reasonably anticipates the issuance of, any written order from
or agreement with any Federal, state or local governmental authority, nor
subject to any judicial or docketed administrative or other proceeding,
respecting any Environmental Law, Environmental Claim or Hazardous
Substance.  There are no Hazardous
Substances or other conditions or circumstances existing with respect to any
property, arising from operations prior to the Closing Date, or relating to any
waste disposal, of any of the Company, its Subsidiaries and the Joint Ventures
that would reasonably be expected to result, either individually or in the
aggregate, in a Material Adverse Effect. 
Except as listed on Schedule 9.14, none of the Company, its
Subsidiaries and the Joint Ventures owns or operates any underground storage
tanks that are not properly registered or permitted under applicable
Environmental Laws or that (i) at any time while any of the Company, its
Subsidiaries or the Joint Ventures has owned or operated them, and (ii) at
any time while any Person other than any of the Company, its Subsidiaries and
the Joint Ventures owned or operated them, to the Company’s best knowledge
without independent investigation or inquiry, have released, leaked, disposed
of or otherwise discharged Hazardous Substances.


 


9.15        Insurance.


 


Set
forth on Schedule 9.15 is a complete and accurate summary of the
property and casualty insurance program of the Loan Parties as of the Closing
Date (including the names of all insurers, policy numbers, expiration dates,
amounts and types of coverage, annual premiums, deductibles, self-insured
retention, and a description in reasonable detail of any self-insurance
program, retrospective rating plan, fronting arrangement or other risk assumption
arrangement involving any Loan Party). 
Each Loan Party and its properties are insured with financially sound
and reputable insurance companies which are not Affiliates of the Loan Parties,
in such amounts, with such deductibles and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where such Loan Parties operate.


 


9.16        Real Property; Facility Leases and Facility Management
Agreements.


 


Except
as set forth on Schedule 9.16, the Company does not, and its
Subsidiaries do not, own any real property. 
Schedule 9.16 also sets forth a listing of each Facility Lease
and each Facility Management Agreement to which the Company or any of its
Subsidiaries or Joint Ventures is a party as lessee or manager and specifies
the city and state where the parking facility subject to such lease or
management agreement is located.


 


9.17        Information.


 


All
information heretofore or contemporaneously herewith furnished in writing by
any Loan Party or Guarantor to the Administrative Agent or any Lender for
purposes of or in connection with this Agreement and the transactions
contemplated hereby is, and all written information hereafter furnished by or
on behalf of any Loan Party or Guarantor to the Administrative Agent or any
Lender pursuant hereto or in connection herewith will be, true and accurate in
every material respect on the date as of which such information is dated or
certified, 


 


55

















 


and none of such information is or will be incomplete
by omitting to state any material fact necessary to make such information not
misleading in light of the circumstances under which made (it being recognized
by the Administrative Agent and the Lenders that any projections and forecasts
provided by the Company are based on good faith estimates and assumptions
believed by the Company to be reasonable as of the date of the applicable
projections or assumptions and that actual results during the period or periods
covered by any such projections and forecasts may differ from projected or
forecasted results).


 


9.18        Intellectual Property.


 


Each
Loan Party and each Guarantor owns and possesses or has a license or other
right to use all patents, patent rights, trademarks, trademark rights, trade
names, trade name rights, service marks, service mark rights and copyrights as
are necessary for the conduct of the businesses of the Loan Parties or
Guarantors, as applicable, without any infringement upon rights of others which
could reasonably be expected to have a Material Adverse Effect.


 


9.19        Burdensome Obligations.


 


No
Loan Party or Guarantor is a party to any agreement or contract or subject to
any restriction contained in its organizational documents which could reasonably
be expected to have a Material Adverse Effect.


 


9.20        Labor Matters.


 


Except
as set forth on Schedule 9.20, no Loan Party is subject to any labor or
collective bargaining agreement.  There
are no existing or threatened strikes, lockouts or other labor disputes
involving any Loan Party that singly or in the aggregate could reasonably be
expected to have a Material Adverse Effect. 
Hours worked by and payment made to employees of the Loan Parties are
not in violation in any material respect of the Fair Labor Standards Act or any
other applicable law, rule or regulation dealing with such matters.


 


9.21        No Default.


 


No
Event of Default or Unmatured Event of Default exists or would result from the
incurrence by any Loan Party or Guarantor of any Debt hereunder or under any
other Loan Document.


 


9.22        Subordinated Debt.


 


The
subordination provisions of the Subordinated Debt are enforceable against the
holders of the Subordinated Debt by the Administrative Agent and the
Lenders.  All Obligations constitute senior
Debt entitled to the benefits of the subordination provisions contained in the
Subordinated Debt.  The Company
acknowledges that the Administrative Agent and each Lender are entering into
this Agreement and are extending the Commitments and making the Loans in
reliance upon the subordination provisions of the Subordinated Debt and this Section 9.22.


 


56

















 


SECTION 10


 


AFFIRMATIVE
COVENANTS


 


Until
the expiration or termination of the Commitments and thereafter until all
Obligations hereunder and under the other Loan Documents are paid in full and
all Letters of Credit and Existing Letters of Credit have been terminated, the
Company agrees that, unless at any time the Required Lenders shall otherwise
expressly consent in writing, it will:


 


10.1        Reports, Certificates and Other Information.


 


Furnish to the
Administrative Agent and each Lender:


 


10.1.1     Annual Report.


 


Promptly
when available and in any event within 90 days after the close of each Fiscal
Year: a copy of the annual audited financial statements of the Company and its
Subsidiaries for such Fiscal Year, including therein consolidated balance
sheets and statements of earnings and cash flows of the Company and its
Subsidiaries as at the end of such Fiscal Year, accompanied by a report and
opinion of Ernst & Young, or any of the four largest independent
certified public accounting firms in the United States, which report and
opinion shall not be subject to any “going concern” or like qualification or
exception.


 


10.1.2     Interim Reports.


 


Upon
filing with the SEC, and in any event within 45 days after the end of each
Fiscal Quarter, consolidated balance sheets of the Company and its Subsidiaries
as of the end of such Fiscal Quarter, together with consolidated statements of
earnings and cash flows for such Fiscal Quarter and for the period beginning
with the first day of such Fiscal Year and ending on the last day of such
Fiscal Quarter, together with a comparison of such financial statements with
the corresponding period of the previous Fiscal Year, certified by a Senior
Officer of the Company as having been prepared in accordance with GAAP (subject
to the absence of footnotes and year-end audit adjustments).


 


10.1.3     Compliance Certificates.


 


Contemporaneously
with the furnishing of a copy of each annual audit report pursuant to Section 10.1.1
and each set of quarterly statements pursuant to Section 10.1.2, a
duly completed compliance certificate in the form of Exhibit B, with
appropriate insertions, dated the date of such annual report or such quarterly
statements and signed by a Senior Officer of the Company, containing a
computation of each of the financial ratios and restrictions set forth in Section 11.13
and to the effect that such officer has not become aware of any Event of 


 


57

















 


Default or Unmatured Event of Default that has
occurred and is continuing or, if there is any such event, describing it and
the steps, if any, being taken to cure it.


 


10.1.4      Reports to the SEC and to Shareholders.


 


Promptly
upon the filing or sending thereof (unless such documents, reports or
communications are publicly available on the SEC’s internet website), copies of
all regular, periodic or special reports of any Loan Party filed with the SEC;
copies of all registration statements of any Loan Party filed with the SEC
(other than on Form S-8); and copies of all proxy statements, financial
statements or other communications made to security holders generally, or filed
with any securities exchange.


 


10.1.5     Notice of Default, Litigation and ERISA
Matters.


 


Within
5 Business Days, after becoming aware of any of the following, written notice
describing the same and the steps being taken by the Company or the Subsidiary
affected thereby with respect thereto:


 


(a)           the occurrence of an Event of Default or
an Unmatured Event of Default;


 


(b)           any litigation, arbitration or
governmental investigation or proceeding not previously disclosed by the
Company to the Lenders which has been instituted or, to the knowledge of the
Company, is threatened against any Loan Party or to which any of the properties
of any thereof is subject which could reasonably be expected to have a Material
Adverse Effect;


 


(c)           the institution of any steps by any
member of the Controlled Group or any other Person to terminate any Pension
Plan in other than a standard termination, as defined under Title IV of ERISA,
or the failure of any member of the Controlled Group to make a required
contribution to any Pension Plan (if such failure is sufficient to give rise to
a Lien under Section 302(f) of ERISA) or to any Multiemployer Pension
Plan, or the taking of any action with respect to a Pension Plan which could
result in the requirement that the Company furnish a bond or other security to
the PBGC or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan or Multiemployer Pension Plan which could result in the
incurrence by any member of the Controlled Group of any liability, fine or
penalty (including any claim or demand for withdrawal liability or partial
withdrawal from any Multiemployer Pension Plan), or any material increase in
the contingent liability of the Company with respect to any post-retirement
welfare benefit plan or other employee benefit plan of the Company or another
member of the Controlled Group, or any notice that any Multiemployer Pension
Plan is in reorganization, that increased contributions may be required to
avoid a reduction in plan benefits or the imposition of an excise tax if such
increased contributions could reasonably be expected to have a Material Adverse
Effect, that any such 


 


58

















 


plan is or has been funded at a rate less than that
required under Section 412 of the Code, that any such plan is or may be
terminated in other than a standard termination, as defined under Title IV of
ERISA, or that any such plan is or may become insolvent, or the occurrence of a
Reportable Event as described in Section 4043(b) of ERISA including
without limitation those events as to which the thirty (30) day notice period
is waived under Part 2615 of the regulations promulgated by the PBGC under
ERISA;


 


(d)           any cancellation or material change in any insurance
maintained by any Loan Party, or the entering into any material contract or
undertaking that is not entered into in the ordinary course of business; or


 


(e)           any other event (including (i) any violation of
any Environmental Law or the assertion of any Environmental Claim or (ii) the
enactment or effectiveness of any law, rule or regulation) which might
reasonably be expected to have a Material Adverse Effect.


 


10.1.6     Management Reports.


 


Promptly
and in any event within 10 Business Days of receipt thereof, copies of all
detailed financial and management reports submitted to the Company by
independent auditors (other than any routine communications between the
independent auditors and the audit committee) in connection with each annual or
interim audit made by such auditors of the books of the Company or any of its
Subsidiaries.


 


10.1.7     Projections.


 


Not
later than January 31 of each Fiscal Year, financial projections for the
Company and its Subsidiaries for such Fiscal Year (including quarterly
operating and cash flow budgets) prepared in a manner consistent with the
projections delivered by the Company to the Lenders prior to the Closing Date
or otherwise in a manner reasonably satisfactory to the Administrative Agent,
accompanied by a certificate of a Senior Officer of the Company on behalf of
the Company to the effect that (a) such projections were prepared by the
Company in good faith, (b) the Company has a reasonable basis for the
assumptions contained in such projections and (c) such projections have
been prepared in accordance with such assumptions.  All parties hereto acknowledge that the
Company cannot and does not make any warranty or assurance that any such
projections will be attained.


 


10.1.8     Subordinated Debt Notices.


 


Promptly
following receipt, copies of (a) any notice of default or acceleration
received from any holder or trustee of, under or with respect to any
Subordinated Debt and (b) any amendment, waiver, consent of other
modification of any documentation governing any Subordinated Debt.


 


59
















 


10.1.9               Other
Information.


 


Promptly from time to
time, such other information concerning the Loan Parties and the Guarantors as
any Lender or the Administrative Agent may reasonably request.


 


The Company hereby
acknowledges that (a) the Administrative Agent and/or BAS will make
available to the Lenders and the Issuing Lenders materials and/or information
provided by or on behalf of the Company hereunder (collectively, “Company
Materials”) by posting the Company Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to
receive material non-public information with respect to the Company or its
securities) (each, a “Public Lender”). 
The Company hereby agrees that it will use commercially reasonable
efforts to identify that portion of the Company Materials that may be
distributed to the Public Lenders and that (w) all such Company Materials
shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall
mean that the word “PUBLIC” shall appear prominently on the first page thereof;
(x) by marking Company Materials “PUBLIC,” the Company shall be deemed to
have authorized the Administrative Agent, BAS, the Issuing Lenders and the
Lenders to treat such Company Materials as not containing any material
non-public information (although it may be sensitive and proprietary) with
respect to the Company or its securities for purposes of United States Federal
and state securities laws (provided, however, that to the extent
such Company Materials constitute Information, they shall be treated as set
forth in Section 15.9); (y) all Company Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
“Public Investor;” and (z) the Administrative Agent and BAS shall be
entitled to treat any Company Materials that are not marked “PUBLIC” as being
suitable only for posting on a portion of the Platform not designated “Public
Investor.”  Notwithstanding the foregoing, the Company shall be under no obligation
to mark any Company Materials “PUBLIC”.


 


10.2        Books, Records and
Inspections.


 


Keep, and cause
each other Loan Party and Guarantor to keep, its books and records in
accordance with sound business practices sufficient to allow the preparation of
financial statements in accordance with GAAP; permit, and cause each other Loan
Party and Guarantor to permit, at any reasonable time and with reasonable
notice (or at any time without notice if an Event of Default exists), any
Lender (at such Lender’s own expense) or the Administrative Agent or any
representative thereof (at the Administrative Agent’s own expense) to inspect
the properties and operations of the Loan Parties and the Guarantors; and
permit, and cause each other Loan Party to permit, at any reasonable time and
with reasonable notice (or at any time without notice if an Event of Default
exists), any Lender (at such Lender’s own expense) or the Administrative Agent
or any representative thereof (at the Administrative Agent’s own expense) to
visit any or all of its offices, to discuss its financial matters with its
officers and its independent auditors (and the Company hereby authorizes such
independent auditors to discuss such financial matters with any Lender or the
Administrative Agent or any representative thereof), and to examine (and, at
the expense of the Loan Parties and Guarantors, photocopy 


 


60

















 


extracts from) any of its books or other records; and permit, and cause
each other Loan Party and Guarantor to permit, the Administrative Agent and its
representatives to inspect the Inventory and other tangible assets of the Loan
Parties and Guarantors, to perform appraisals of the equipment of the Loan
Parties and Guarantors, and to inspect, audit, check and make copies of and
extracts from the books, records, computer data, computer programs, journals,
orders, receipts, correspondence and other data relating to Inventory, Accounts
and any other collateral.  All such
inspections or audits by the Administrative Agent shall be at the
Administrative Agent’s expense, provided that so long as an Event of
Default exists, such inspections or audits shall be at the Company’s expense
and the Administrative Agent shall be able to perform as many inspections or
audits as it desires during any such Event of Default.


 


10.3        Maintenance of
Property; Insurance.


 


(a)           Keep,
and cause each other Loan Party and Guarantor to keep, all property useful and
necessary in the business of the Loan Parties and the Guarantors in good
working order and condition, ordinary wear and tear excepted, and from time to
time make, or cause to be made, all needful repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar
businesses.


 


(b)           Maintain,
and cause each other Loan Party and Guarantor to maintain, with responsible
insurance companies, such insurance coverage as may be required by any law or
governmental regulation or court decree or order applicable to it (including,
without limitation, liability insurance for the directors and officers of such
Loan Party or Guarantor) and such other insurance, to such extent and against
such hazards and liabilities as is customarily maintained by companies
similarly situated, but which shall insure against all risks and liabilities of
the type identified on Schedule 9.15 and shall have insured amounts no
less than, and deductibles no higher than, those set forth on such schedule (as
such schedule may change upon the reasonable consent of the Administrative
Agent); and, upon request of the Administrative Agent or any Lender, furnish to
the Administrative Agent or such Lender a certificate setting forth in
reasonable detail the nature and extent of all insurance maintained by the Loan
Parties and the Guarantors.  The Company
shall cause each issuer of an insurance policy to provide the Collateral Agent
with an endorsement (i) showing the Collateral Agent as lender loss payee
or mortgagee, as applicable, with respect to each policy of property or
casualty insurance or business interruption insurance and naming the Collateral
Agent, for the benefit of the Lenders, as an additional insured with respect to
each policy of liability insurance, (ii) providing that 30 days’ notice
will be given to the Collateral Agent prior to any cancellation of, material
reduction or change in coverage provided by or other material modification to
such policy and (iii) reasonably acceptable in all other respects to the
Collateral Agent.


 


(c)           UNLESS
THE COMPANY PROVIDES THE ADMINISTRATIVE AGENT WITH EVIDENCE OF THE INSURANCE
COVERAGE REQUIRED BY THIS AGREEMENT, THE ADMINISTRATIVE AGENT MAY, FOLLOWING
PRIOR NOTICE TO THE COMPANY, PURCHASE INSURANCE AT THE COMPANY’S EXPENSE TO
PROTECT THE COLLATERAL AGENT’S AND THE LENDERS’ INTERESTS IN THE
COLLATERAL.  THIS INSURANCE MAY, BUT NEED
NOT, PROTECT ANY LOAN 


 


61

















 


PARTY’S OR GUARANTOR’S INTERESTS. 
THE COVERAGE THAT THE ADMINISTRATIVE AGENT PURCHASES MAY NOT PAY
ANY CLAIM THAT IS MADE AGAINST ANY LOAN PARTY OR GUARANTOR IN CONNECTION WITH
THE COLLATERAL.  THE COMPANY MAY LATER
CANCEL ANY INSURANCE PURCHASED BY THE ADMINISTRATIVE AGENT, BUT ONLY AFTER
PROVIDING THE ADMINISTRATIVE AGENT WITH EVIDENCE THAT THE COMPANY HAS OBTAINED
INSURANCE AS REQUIRED BY THIS AGREEMENT. 
IF THE ADMINISTRATIVE AGENT PURCHASES INSURANCE FOR THE COLLATERAL, THE
COMPANY WILL BE RESPONSIBLE FOR THE COSTS OF THAT INSURANCE, INCLUDING INTEREST
AND ANY OTHER CHARGES THAT MAY BE IMPOSED WITH THE PLACEMENT OF THE
INSURANCE, UNTIL THE EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE.  THE COSTS OF THE INSURANCE MAY BE
ADDED TO THE PRINCIPAL AMOUNT OF THE LOANS OWING HEREUNDER.  THE COSTS OF THE INSURANCE MAY BE MORE
THAN THE COST OF THE INSURANCE THE LOAN PARTIES AND GUARANTORS MAY BE ABLE
TO OBTAIN ON THEIR OWN.


 


10.4        Compliance with Laws;
Payment of Taxes and Liabilities.


 


(a)           Comply,
and cause each other Loan Party and Guarantor to comply, in all material
respects with all applicable laws, rules, regulations, decrees, orders,
judgments, licenses and permits, except where failure to comply could not
reasonably be expected to have a Material Adverse Effect; (b) without
limiting clause (a) above, ensure, and cause each other Loan Party
and Guarantor to ensure, that no person who owns a controlling interest in or
otherwise controls a Loan Party or Guarantor is or shall be (i) listed on
the Specially Designated Nationals and Blocked Person List maintained by the
Office of Foreign Assets Control (“OFAC”), Department of the Treasury, and/or
any other similar lists maintained by OFAC pursuant to any authorizing statute,
Executive Order or regulation or (ii) a person designated under Section 1(b),
(c) or (d) of Executive Order No.  13224 (September 23,
2001), any related enabling legislation or any other similar Executive Orders, (c) without
limiting clause (a) above, comply, and cause each other Loan Party
and Guarantor to comply, with all applicable Bank Secrecy Act (“BSA”) and
anti-money laundering laws and regulations and (d) pay, and cause each
other Loan Party and Guarantor to pay, prior to delinquency, all taxes and
other governmental charges against it or any collateral, as well as claims of
any kind which, if unpaid, could become a Lien (other than Permitted Liens) on
any of its property; provided that the foregoing shall not require any
Loan Party to pay any such tax or charge so long as it shall contest the
validity thereof in good faith by appropriate proceedings and shall set aside
on its books adequate reserves with respect thereto in accordance with GAAP
and, in the case of a claim which could become a Lien (other than a Permitted
Lien) on any collateral, such contest proceedings shall stay the foreclosure of
such Lien (other than a Permitted Lien) or the sale of any portion of the
collateral to satisfy such claim.


 


10.5        Maintenance of
Existence, etc.


 


(a)           Maintain
and preserve, and (subject to Section 11.5) cause each other Loan
Party and Guarantor to maintain and preserve, (i) its existence and good
standing in the jurisdiction of 


 


62

















 


its organization, (ii) its qualification to do business and good
standing in each jurisdiction where the nature of its business makes such
qualification necessary (other than such jurisdictions in which the failure to
be qualified or in good standing could not reasonably be expected to have a
Material Adverse Effect, and other than in connection with any merger permitted
pursuant to Sections 11.4 or 11.6 other than any dissolution or
liquidations of any Subsidiary if the assets of such Subsidiary are transferred
to the Company or any Guarantor in connection with such dissolution or
liquidation) and (iii) the rights, licenses, permits (including those
required under applicable Environmental Laws), franchises, patents, copyrights,
trademarks and trade names material to the conduct of its businesses; provided,
however, that the Loan Parties and the Guarantors shall not be required to
preserve any such right, license or franchise, or its corporate, partnership or
other existence, if the Board of Directors of the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries and Guarantors, taken as a whole, and that
the loss thereof is not adverse in any material respect to the Administrative
Agent or the Lenders; and (b) defend all of the foregoing against all
claims, actions, demands, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or regulatory
authority.


 


10.6        Use of Proceeds.


 


Use the proceeds
of the Loans, and the Letters of Credit and Existing Letters of Credit, solely
to refinance existing indebtedness, for working capital purposes, for Permitted
Acquisitions, for Capital Expenditures, for Special Payments, and for other
general business purposes; and not use or permit any proceeds of any Loan to be
used, either directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of “purchasing or carrying” any Margin Stock in any manner that would constitute a
violation of Regulation U.


 


10.7        Employee Benefit Plans.


 


(a)           Maintain,
and use good faith efforts to cause each other member of the Controlled Group
to maintain, each Pension Plan in substantial compliance with all applicable
requirements of law and regulations.


 


(b)           Make,
and use good faith efforts to cause each other member of the Controlled Group
to make, on a timely basis, all required contributions to any Multiemployer
Pension Plan.


 


(c)           Not,
and use good faith efforts to not permit any other member of the Controlled
Group to (i) seek a waiver of the minimum funding standards of ERISA, (ii) terminate
or withdraw from any Pension Plan or Multiemployer Pension Plan, (iii) take
any other action with respect to any Pension Plan that would reasonably be
expected to entitle the PBGC to terminate, impose liability in respect of, or
cause a trustee to be appointed to administer, any Pension Plan, or (iv) permit
to occur a Reportable Event as described in Section 4043(b) of ERISA
including without limitation those events as to which the thirty (30) day
notice period is waived under Part 2615 of the regulations promulgated by
the PBGC under ERISA, unless the actions or events described in clauses (i),
(ii), (iii) and (iv) individually or in the aggregate would not have
a Material Adverse Effect.


 


63

















 


10.8        Environmental Matters.


 


If any release or
threatened release or other disposal of Hazardous Substances shall occur or
shall have occurred on any real property or any other assets of any Loan Party
or Guarantor, the Company shall, or shall cause the applicable Loan Party or
Guarantor to, cause the prompt containment and removal of such Hazardous
Substances and the remediation of such real property or other assets as
necessary to comply with all Environmental Laws and to preserve the value of
such real property or other assets. 
Without limiting the generality of the foregoing, the Company shall, and
shall cause each other Loan Party and Guarantor to, comply with any Federal or
state judicial or administrative order requiring the performance at any real
property of any Loan Party or Guarantor of activities in response to the
release or threatened release of a Hazardous Substance.  To the extent that the transportation of
Hazardous Substances is permitted by this Agreement, the Company shall, and
shall cause its Subsidiaries to, dispose of such Hazardous Substances, or of
any other wastes, only at licensed disposal facilities operating in compliance
with Environmental Laws.


 


10.9        Further Assurances.


 


(a)           Within
30 days from the request therefor by the Administrative Agent, take, and cause
each other Loan Party and Guarantor to take, such actions as are necessary or
as the Administrative Agent or the Required Lenders may reasonably request from
time to time to give effect to the intent of, and to aid in the exercise and
enforcement of the rights and remedies of the Administrative Agent, the
Collateral Agent and the Lenders under the Loan Documents, and to ensure that the
Obligations of each Loan Party and Guarantor under the Loan Documents are
secured by substantially all of the assets of the Company, each Domestic
Subsidiary and each Joint Venture which meets the definition of a Guarantor (as
well as all Capital Securities of each Domestic Subsidiary and each such Joint
Venture and 65% of all Capital Securities of each direct Foreign Subsidiary)
and guaranteed by each Domestic Subsidiary and each Joint Venture which meets
the definition of a Guarantor (including, within 30 days after the acquisition
or creation thereof, any Domestic Subsidiary or Joint Venture acquired or
created after the Closing Date), in each case as the Administrative Agent may
determine, including without limitation (i) the execution and delivery of
guaranties, security agreements, pledge agreements, Mortgages, financing
statements and other documents, and the filing or recording of any of the
foregoing and (ii) the delivery of certificated securities and other
collateral with respect to which perfection is obtained by possession.  Notwithstanding the foregoing, the Company
shall not be required to pledge the Capital Stock of any future Domestic
Subsidiary so long as those entities do not have any assets or operations
valued in excess of $100,000.


 


(b)           The
Company shall notify the Lenders and the Administrative Agent, within ten (10) days
after the occurrence thereof, of the acquisition of any material property by
the Company or any Guarantor that is not subject to the existing Collateral
Documents, any Person becoming a Subsidiary or the creation of any Joint
Venture and any other event or condition, other than the passage of time, that
may require additional action of any nature in order to create or preserve the
effectiveness and perfected status of the liens and security interests of the
Lenders and the Collateral Agent with respect to such property pursuant to the
Collateral Documents, including without limitation delivering the originals of
all promissory notes and 


 


64

















 


other instruments payable to the Company or any Guarantor to the
Collateral Agent, delivering the originals of all stock certificates or other
certificates evidencing the Capital Securities owned by the Company or any
Guarantor at any time, which are required by the foregoing Section 10.9(a) to
be pledged to the Collateral Agent for the benefit of the Lenders and cause any
new Subsidiary to become a Guarantor pursuant to the Guaranty and Collateral
Agreement.


 


SECTION 11


 


NEGATIVE COVENANTS


 


Until the expiration or
termination of the Commitments and thereafter until all Obligations (other than
contingent and unmatured indemnification obligations) hereunder and under the
other Loan Documents are paid in full and all Letters of Credit and Existing
Letters of Credit have been terminated, the Company agrees that, unless at any
time the Required Lenders shall otherwise expressly consent in writing, it
will:


 


11.1        Debt.


 


Not, and not permit any other Loan Party to, create,
incur, assume or suffer to exist any Debt, except:


 


(a)           Obligations
under this Agreement and the other Loan Documents;


 


(b)           Debt
of any Guarantor owing to the Company or to any other Guarantor; provided
that to the extent such Debt shall be evidenced by any note or instrument, such
instrument shall be a demand note in form and substance reasonably satisfactory
to the Collateral Agent and pledged and delivered to the Collateral Agent
pursuant to the Collateral Documents as additional collateral security for the
Obligations, and the obligations under such demand note shall be subordinated
to the Obligations of the Company hereunder in a manner reasonably satisfactory
to the Administrative Agent;


 


(c)           Subordinated
Debt, provided that (A) immediately before and after (on a pro forma basis
acceptable to the Administrative Agent and supported by such certificates
required by the Administrative Agent) the incurrence of any such Subordinated
Debt, no Unmatured Event of Default or Event of Default shall exist and the
Company shall be in pro forma compliance with all financial and other covenants
contained herein as of the date of incurrence of such Subordinated Debt and (B) all
agreements, documents and instruments relating to such Subordinated Debt shall
have been delivered to and approved by the Administrative Agent and the
Required Lenders prior to the incurrence of such Subordinated Debt;


 


(d)           Hedging
Obligations;


 


(e)           Debt
described on Schedule 11.1 and any extension, renewal or refinancing
thereof so long as the principal amount thereof is not increased (and as such
amount is reduced 


 


65

















 


from time to time) and no modifications of the terms thereof which are
less favorable to the Company or more restrictive on the Company in any material
manner shall be permitted;


 


(f)            Contingent
Liabilities arising with respect to customary indemnification obligations in
favor of sellers in connection with Permitted Acquisitions and purchasers in
connection with dispositions permitted under Section 11.4;


 


(g)           Earnouts
with respect to Permitted Acquisitions made by the Company;


 


(h)           Trade
accounts payable and accrued expenses arising in the ordinary course which are
current or past due only in an amount which is not material in the aggregate
for the Company and its Subsidiaries on a consolidated basis, or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves are maintained on the books of the Company;


 


(i)            Debt
which is non-recourse to the Company or its Subsidiaries, provided that the
aggregate amount of such non-recourse Indebtedness does not exceed $10,000,000
and such non-recourse terms and the other terms of such financing are
acceptable to the Administrative Agent;


 


(j)            Debt
incurred to finance insurance premiums in the ordinary course of business
consistent with past practices of the Company;


 


(k)           Debt
of Subsidiaries and Joint Ventures which are not Guarantors owing to the
Company or a Guarantor not exceeding an aggregate amount equal to the book
value of five percent (5%) of Total Assets; provided, that any such Debt shall
reduce, dollar for dollar, the available transactions permitted by Section 11.6(g);


 


(l)            Debt
represented by the subtraction of Adjusted Off-Balance Sheet Liabilities from
Off-Balance Sheet Liabilities;


 


(m)          Debt
(other than Debt to the Principals) other than as described in clauses (a) through
(l) above and (o) below not exceeding an aggregate amount equal to
the book value of five percent (5%) of Total Assets, provided that not more than
50% of the Debt incurred or otherwise outstanding pursuant to this clause (m) may
be secured by Permitted Liens;


 


(n)           Debt
which may otherwise be permitted pursuant to Section 11.6; and


 


(o)           Debt
arising from Ordinary Course Capital Leases.


 


11.2        Liens.


 


Not, and not
permit any other Loan Party to, create or permit to exist any Lien on any of
its real or personal properties, assets or rights of whatsoever nature (whether
now owned or hereafter acquired), except:


 


(a)           Liens
arising under the Loan Documents;


 


66

















 


(b)           Liens
imposed by law (other than liens imposed by ERISA or Section 412 of the
Code), carriers’, warehousemen’s or mechanic’s Liens, operators’ or drillers’
Liens and Liens to secure claims for labor, material or supplies arising in the
ordinary course of business, but only to the extent that payment thereof shall
not at the time be due or shall be contested in good faith by appropriate
proceedings diligently conducted, with respect to which appropriate reserves
have been set aside and as to which there has been no seizure of or foreclosure
upon assets subject to such Liens;


 


(c)           deposits
or pledges to secure payment of worker’s compensation, unemployment insurance,
old age pensions or other social security, or to secure the performance of
bids, tenders, contracts (other than those relating to borrowed money) or
leases or to secure statutory obligations or surety or appeal bonds, or to
secure indemnity, performance or other similar bonds in the ordinary course of
business, or in connection with contests, to the extent that payment thereof
shall not at the time be due or shall be contested in good faith by appropriate
proceedings diligently conducted and there have been set aside on its books
appropriate reserves with respect thereto;


 


(d)           Liens
securing taxes, assessments, levies or other governmental charges which are not
overdue or which, in an amount not exceeding $2,000,000 in the aggregate, are
being contested in good faith by appropriate proceedings diligently conducted,
with respect to which reasonable reserves have been set aside and as to which
there has been no seizure of or foreclosure upon assets subject to the Liens;


 


(e)           Liens
consisting of encumbrances, easements or reservations of, or rights of others
for, rights-of-way, sewers, electric lines, telecommunications lines and other
similar purposes, zoning restrictions, restrictions on the use of real property
and minor defects and irregularities in the title thereto, and other similar
encumbrances, none of which in the reasonable opinion of the Administrative
Agent interferes with the use of the property subject thereto by the Company or
such Subsidiary in the ordinary conduct of its business;


 


(f)            Liens
described on Schedule 11.2 as of the Closing Date, and any extensions or
renewals of the foregoing, provided that neither the Debt secured by any such
existing Liens nor the property subject thereto shall increase;


 


(g)           Liens
on the daily revenues in favor of Persons other than the Company or its
Affiliates who are parties to the Facility Leases and Facility Management
Agreements for the amounts due to them pursuant thereto;


 


(h)           purported
Liens in the ordinary course of business on fixtures to the extent applicable
law permits a mortgagee to claim an interest therein, provided that such
purported Liens do not secure any Debt of the Company or any of its Affiliates;


 


(i)            any
Lien created to secure payment of a portion of the purchase price of, or
existing at the time of acquisition of, any tangible fixed asset (including
Liens granted in connection with Ordinary Course Capital Leases) acquired by
the Company or any of its 


 


67

















 


Subsidiaries, may be created or suffer to exist upon such tangible
fixed asset if the outstanding principal amount of the Debt secured by such
Lien does not exceed the purchase price paid by the Company or such Subsidiary
for such tangible fixed asset provided that (i) such Lien does not
encumber any other asset at any time owned by the Company or such Subsidiary, (ii) not
more than one such Lien shall encumber such tangible fixed asset at any one
time, and (iii) the aggregate amount of Debt secured by all such Liens
shall not exceed the amounts permitted by Sections 11.1(e) and (m)


 


(j)            Liens
on unearned insurance premiums to secure Debt referred to in Section 11.1(k)


 


(k)           Liens
arising by applicable law in respect of employees’ wages, salaries or
commissions not overdue; and


 


(l)            Liens
arising out of judgments or awards not exceeding $2,000,000 in the aggregate
against the Company or its Subsidiaries with respect to which the Company or
such Subsidiary shall be in good faith prosecuting an appeal or a proceeding or
review and the enforcement of such Lien is stayed pending such appeal or
review.


 


11.3        Restricted Payments.


 


Not, and not
permit any other Loan Party to, make, pay, declare, or authorize any dividend,
payment or other distribution in respect of any class of its Capital Securities
or any dividend, payment or distribution in connection with the redemption,
purchase, retirement or other acquisition, directly or indirectly, of any
shares of its Capital Securities, other than such dividends, payments or other
distributions made (i) to the extent payable solely in shares of Capital
Securities (other than Disqualified Stock) of the Company, (ii) as
permitted pursuant to Section 11.6, or (iii) to the extent
that the same constitute Special Payments made in compliance with the
definition of such term.  The Company
will not issue Disqualified Stock.


 


11.4        Mergers,
Consolidations, Sales.


 


(a)           Not,
and not permit any other Loan Party to, make any Acquisition; nor merge or
consolidate or amalgamate with any other Person or take any other action having
a similar effect, nor enter into any joint venture or similar arrangement with
any other Person, except (i) any Acquisition by the Company or any
Guarantor where (collectively, “Permitted Acquisitions”):


 


(A)        the
business or division acquired are for use, or the Person acquired is engaged,
in businesses similar to those engaged in by the Loan Parties on the Closing
Date;


 


(B)         immediately
before and after giving effect to such Acquisition, no Event of Default or
Unmatured Event of Default shall exist;


 


(C)         the
aggregate consideration to be paid by the Loan Parties (including any Debt
assumed or issued in connection therewith, the amount thereof to be calculated
in accordance with GAAP) in connection with such Acquisition (or any series of
related 


 


68

















 


Acquisitions) shall not exceed $10,000,000, and all
such Acquisitions in any Fiscal Year shall not exceed $25,000,000;


 


(D)         immediately
after giving effect to such Acquisition, the Company is in pro forma compliance
with all the financial ratios and restrictions set forth in Section 11.13;


 


(E)         in
the case of the Acquisition of any Person, the Board of Directors of such
Person has approved such Acquisition;


 


(F)         after
giving effect to any Acquisition and after giving effect to the working capital
needs of the acquired business, the Revolving Loan Availability shall equal or
exceed $7,000,000;


 


(G)         with
respect to any Acquisition in which the aggregate consideration paid by the
Loan Parties exceeds $5,000,000, within 10 Business Days of such Acquisition,
the Administrative Agent shall have received complete executed or conformed
copies of each material document, instrument and agreement to be executed in
connection with such Acquisition together with all lien search reports and lien
release letters and other documents as the Administrative Agent may require to
evidence the termination of Liens on the assets or business to be acquired,
provided that the Lien termination may occur simultaneously with the closing of
such Acquisition;


 


(H)         with
respect to any Acquisition in which the aggregate consideration paid by the
Loan Parties exceeds $5,000,000, not less than ten Business Days prior to such
Acquisition, the Administrative Agent shall have received an acquisition
summary with respect to the Person and/or business or division to be acquired,
such summary to include a reasonably detailed description thereof (including
financial information) and operating results (including financial statements
for the most recent 12 month period for which they are available and as
otherwise available), the material terms and conditions, including economic
terms, of the proposed Acquisition, and the Company’s calculation of pro forma
EBITDA relating thereto;


 


(I)          with
respect to any Acquisition in which the aggregate consideration paid by the
Loan Parties exceeds $5,000,000, the Administrative Agent and Required Lenders
shall have approved (such approval not to be unreasonably withheld) the Company’s
computation of pro forma EBITDA after giving effect to such Acquisition; and


 


(J)          with
respect to any Acquisition in which the aggregate consideration paid by the
Loan Parties exceeds $5,000,000, consents have been obtained in favor of the
Collateral Agent and the Lenders to the collateral assignment of rights and
indemnities under the related acquisition documents and opinions of counsel for
the Loan Parties and (if delivered to the Loan Party) the selling party in
favor of the Collateral Agent and the Lenders have been delivered;


 


and (ii) as maybe otherwise permitted pursuant to
Sections 11.6, 11.10(b) and 11.10(1).


 


(b)           Sell,
lease, license, transfer, assign or otherwise dispose of all or any portion of
its business, assets, rights, revenues or property, real, personal or mixed,
tangible or intangible, 


 


69

















 


whether in one or a series of transactions, other than inventory sold
in the ordinary course of business upon customary credit terms and sales of
material or equipment no longer useful in the business, and shall not permit or
suffer any Subsidiary to do any of the foregoing (an “Asset Disposition”)
provided, however, that this Section 11.4(b) shall not
prohibit any sale, lease, license, transfer, assignment or other disposition
otherwise permitted pursuant to Section 11.6 or if (i) the
aggregate book value (disregarding any write-downs of such book value other
than ordinary depreciation and amortization) of all of the business, assets,
rights, revenues and property disposed of after the Closing Date of this
Agreement (other than in reliance on clauses (ii) and (iii) below)
shall be less than 2% of the Total Assets at such time and if, immediately
before and after such transaction, no Unmatured Event of Default or Event of
Default shall exist, (ii) sales of equipment as to which proceeds are used
within 180 days to purchase equipment of at least equivalent value to those
sold and if, immediately before and after such transaction, no Unmatured Event
of Default or Event of Default shall exist, (iii) sales as to which
proceeds are used to make optional repayments on the Revolving Loans, provided
that such prepayments on the Revolving Loans shall also permanently reduce the
Revolving Commitment by the amount of such payments, (iv) investments
which consist of transfers of assets instead of cash and which are permitted by
Section 11.10 or (v) transfers of assets pursuant to a loan or
advance permitted pursuant to Section 11.10;  provided,
however, in the case of any of the foregoing permitted sales, leases, licenses,
transfers, assignments or other dispositions described in clauses (i), (ii) and
(iii) the Company shall not, and shall not permit any of its Subsidiaries
to, consummate an Asset Disposition unless (A) the Company (or the
Subsidiary, as the case may be) receives consideration at the time of such
Asset Disposition at least equal to the fair market value (as determined by the
Board of Directors of such Person and evidenced by a resolution of the Board of
Directors of such Person set forth in an officer’s certificate delivered to the
Administrative Agent) of the assets and (B) at least 75% of the
consideration therefore received by the Company or such Subsidiary is in the
form of cash; provided that the amount of (x) any liabilities (as shown on
the Company’s or such Subsidiary’s most recent balance sheet), of the Company
or any Subsidiary that are assumed by the transferee of any such assets such
that the Company or such Subsidiary have no further liability and (y) any
securities, notes or other obligations received by the Company or any such
Subsidiary from such transferee that are converted by the Company or such
Subsidiary into cash (to the extent of the cash received), shall be deemed to
be cash for purposes of this provision and the definition of Net Cash Proceeds,
and (C) the Collateral Agent promptly shall obtain a first priority
security interest in any non-cash consideration for any Asset Disposition.


 


11.5        Modification of
Organizational Documents.


 


Not permit the
charter, by-laws or other organizational documents of any Loan Party to be
amended or modified in any way which could reasonably be expected to materially
adversely affect the interests of the Lenders.


 


11.6        Transactions with
Affiliates.


 


Not, and not
permit any other Loan Party to, take any actions, nor enter into any
transactions, of the types described in Sections 11.1, 11.2, 11.3,
11.4, 11.10, 11.14 or 11.15, directly or
indirectly, with, or for the benefit of, the Principals and any other
Affiliates of the 


 


70

















 


Company (each of the foregoing, an “Affiliate Transaction”)
except as may otherwise be specifically permitted by those sections, and except
as follows:


 


(a)           transactions
between or among the Company and/or the Guarantors shall be permitted;


 


(b)           any
Subsidiary may merge with or into another Subsidiary or into the Company,
provided that (i) there is no Unmatured Event of Default or Event of
Default either existing before, or which would arise from, such merger, (ii) if
any such merger involves a Guarantor, the Guarantor shall be the surviving
Person, (iii) if any such merger involves the Company, the Company shall
be the surviving Person and (iv) if any such merger involves the Company
or any Guarantor, the net worth of the Company or such Guarantor involved in such
merger immediately after the merger would be equal to or greater than its net
worth immediately preceding such merger;


 


(c)           upon
notice to and consent of the Administrative Agent, any Subsidiary may merge
with or into a newly-created Subsidiary which is incorporated, formed or
otherwise organized pursuant to the laws of the State of Delaware, solely for
the purpose of re-organizing the previously existing Subsidiary under the laws
of the State of Delaware, provided that (i) there is no Unmatured Event of
Default or Event of Default either existing before, or which would arise from,
such merger, (ii) if any such merger involves a Guarantor, the surviving
Subsidiary shall become a Guarantor, and the net worth of such surviving
Subsidiary immediately after the merger shall be equal to or greater than the
Guarantor’s net worth immediately preceding such merger, and (iii) all
other terms and conditions of such merger shall be acceptable to the
Administrative Agent in its reasonable discretion;


 


(d)           transfers
of assets, including without limitation Capital Securities, between Guarantors
or between the Company and Guarantors shall be permitted, provided that the
Collateral Agent maintains its first priority perfected Lien on any and all
collateral security;


 


(e)           Affiliate
Transactions, Facility Management Agreements and Facility Leases entered into
in the ordinary course of business shall be permitted that are on terms that
are no less favorable to the Company or the relevant Subsidiary than those that
would have been obtained in a comparable transaction by the Company or such
Subsidiary with an unrelated Person; and


 


(f)            the
Company or any Guarantor may purchase or otherwise acquire any Capital
Securities of or other ownership interest in, or debt securities of or other
evidences of Debt of, any Subsidiary or Joint Venture that is not a Guarantor;
or make any loan or advance of any of its funds or property or make any other
extension of credit to, or make any other investment or contribution or acquire
any interest whatsoever in, any Subsidiary or Joint Venture that is not a
Guarantor, not exceeding an aggregate amount equal to the book value of 3% of
Total Assets; provided, that any of the foregoing transactions shall reduce,
dollar for dollar, the available Debt permitted by Section 11.1(1).


 


71
















 


11.7        Unconditional Purchase
Obligations.


 


Not, and not
permit any other Loan Party to, enter into or be a party to any contract for
the purchase of materials, supplies or other property or services if such
contract requires that payment be made by it regardless of whether delivery is
ever made of such materials, supplies or other property or services.


 


11.8        Inconsistent Agreements.


 


Not, and not
permit any other Loan Party to, enter into any agreement, including without
limitation any amendments to existing agreements, containing any provision
which would (a) be violated or breached by any borrowing by the Company
hereunder or by the performance by any Loan Party of any of its Obligations
hereunder or under any other Loan Document, (b) prohibit any Loan Party
from granting to the Collateral Agent and the Lenders, a Lien on any of its
assets, now or hereafter acquired, or (c) create or permit to exist or
become effective any encumbrance or restriction on the ability of any
Subsidiary to (i) pay dividends or make other distributions to the Company
or any other Subsidiary, or pay any Debt owed to the Company or any other
Subsidiary, (ii) make loans or advances to any Loan Party or (iii) transfer
any of its assets or properties to any Loan Party; other than (A) customary
restrictions and conditions contained in agreements relating to the sale of all
or a substantial part of the assets of any Subsidiary pending such sale, provided
that such restrictions and conditions apply only to the Subsidiary to be sold
and such sale is permitted hereunder (B) restrictions or conditions
imposed by any agreement relating to purchase money Debt, Capital Leases and
other secured Debt permitted by this Agreement if such restrictions or
conditions apply only to the property or assets securing such Debt and (C) customary
provisions in leases, Joint Venture agreements (created in the ordinary course
consistent with past practices) and other contracts restricting the assignment
thereof.  The Company shall use its best
efforts to avoid entering into Joint Venture agreements which would violate the
foregoing terms of this Section 11.8.


 


11.9        Business Activities;
Issuance of Equity.


 


Not, and not
permit any other Loan Party to, engage in any line of business other than the
businesses engaged in on the date hereof and businesses reasonably related
thereto.  Not, and not permit any other
Loan Party to, issue any Capital Securities other than (a) any issuance of
shares of the Company’s Capital Securities (provided any such issued shares
shall not be Disqualified Stock), or (b) any issuance by a Subsidiary to
the Company or another Subsidiary in accordance with Section 11.3.


 


11.10      Investments, Loans and
Advances.


 


Not, and not
permit any other Loan Party to, purchase or otherwise acquire any Capital
Securities of or other ownership interest in, or debt securities of or other
evidences of Debt of, any other Person; nor make any loan or advance of any of
its funds or property or make any other extension of credit to, or make any
other investment or contribution or acquire any interest whatsoever in, any
other Person; nor incur any Contingent Liability except to the extent permitted
under Section 11.1 nor permit any Subsidiary to do any of the
foregoing; other than:


 


72

















 


(a)           contributions
by the Company to the capital of any Wholly-Owned Subsidiary, or by any
Subsidiary to the capital of any other domestic Wholly-Owned Subsidiary, so
long as the recipient of any such capital contribution has guaranteed the
Obligations and such guaranty is secured by a pledge of all of its Capital
Securities and substantially all of its real and personal property, in each
case in accordance with Section 10.8;


 


(b)           contributions
to non-Wholly-Owned Subsidiaries and Joint Ventures in the ordinary course of
business consistent with past practices not in excess of $2,000,000 in the
aggregate;


 


(c)           investments
constituting Debt permitted by Section 11.1;


 


(d)           Contingent
Liabilities constituting Debt permitted by Section 11.1 or Liens
permitted by Section 11.2;


 


(e)           investments
in Cash Equivalents;


 


(f)            bank
deposits in the ordinary course of business;


 


(g)           investments
in securities of Account Debtors received pursuant to any plan of
reorganization or similar arrangement upon the bankruptcy or insolvency of such
account debtors;


 


(h)           investments
to consummate Permitted Acquisitions;


 


(i)            those
investments, loans, advances and other transactions described in Schedule
11.10 as of the Closing Date, but no extension or renewal thereof shall be
permitted;


 


(j)            extensions
of trade credit made in the ordinary course of business on customary credit
terms and commissions, relocation, travel and similar advances made to officers
and employees and to consultants for consulting services and reimbursable
expenses, all in the ordinary course of business, provided that advances to
officers, employees and to consultants for purposes other than commission,
relocation and travel shall not exceed $250,000 in aggregate at any time
outstanding;


 


(k)           acquire
and own stock, obligations or securities received in settlement of debts owing
to the Company or its Subsidiaries or as consideration for Asset Dispositions
otherwise permitted under Section 11.4;


 


(l)            advances
made by the Company or its Subsidiaries or Joint Ventures to clients in
connection with Facility Leases and Facility Management Agreements of the
Company in the ordinary course of business consistent with past practices;


 


73

















 


(m)          other
loans, advances or investments (except to (i) the Principals, or (ii) other
Affiliates of the Company) in an aggregate amount not to exceed three percent
(3%) of Total Assets; and


 


(n)           as
otherwise permitted pursuant to Sections 11.6.


 


provided that (x) any Investment
which when made complies with the requirements of the definition of the term “Cash
Equivalent Investment” may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements; (y) no
new Investment which would otherwise be permitted by clause (c), (d), or (h) shall
be permitted to be made if, immediately before or after giving effect thereto,
any Event of Default or Unmatured Event of Default exists.


 


11.11      Restriction of Amendments
to Certain Documents.


 


Not amend or
otherwise modify, or waive any rights under, the Subordinated Debt Documents
if, in any case, such amendment, modification or waiver could reasonably be
expected to be material and adverse to the interests of the Lenders.


 


11.12      Fiscal Year.


 


Not change its
Fiscal Year.


 


11.13      Financial Covenants.


 


11.13.1   Fixed
Charge Coverage Ratio.


 


Not
permit the Fixed Charge Coverage Ratio to be less than 2.00 to 1.0 as of the
end of any Fiscal Quarter.


 


11.13.2         Total Debt to EBITDA Ratio.


 


Not
permit the Total Debt to EBITDA Ratio to exceed (i) 4.25 to 1.0 as of the
end of any Fiscal Quarter from the Closing Date through and including September 30,
2009, (ii) 4.0 to 1.0 as of the end of any Fiscal Quarter from October 1,
2009 through and including September 30, 2010 and (iii) 3.75 to 1.0
as of the end of any Fiscal Quarter ending after September 30, 2010.


 


11.14      Repayment or Redemption
of Debt; Cancellation of Debt.


 


Not make, or
permit any Subsidiary to make, any optional payment, defeasance (whether a covenant
defeasance, legal defeasance or other defeasance), prepayment or redemption of
any of its or any of its Subsidiaries’ Debt (except for (x) payments made
in Capital Securities which could not create an Event of Default, (y) except
for Ordinary Course Lease Termination Payments and (z) prepayments or any
redemption of the Company’s or any of its Subsidiaries’ Subordinated Debt); or
amend or modify, or consent or agree to any amendment or modification 


 


74

















 


of, any instrument or agreement under which any of its Subordinated
Debt is issued or created or otherwise related thereto; or enter into any
agreement or arrangement providing for any defeasance of any kind of any of its
Subordinated Debt; except as may otherwise be permitted pursuant to Sections
11.3 and 11.6.  Not, and not permit
any other Loan Party to, cancel any claim or debt owing to it, except for
reasonable consideration or in the ordinary course of business.


 


11.15      Affiliate Amounts.


 


Except as set
forth on Schedule 11.15, the Company will not pay, or permit any
Subsidiary to pay, directly or indirectly, any management, consulting,
investment banking, advisory or other fees or payments, fees or payments under
any leases, any expense reimbursement or similar payments, or any other
payments of any kind (including, without limitation, any amounts paid or
payable by the Company or any of its Subsidiaries to the Principals and/or to
any other Affiliates of the Company, in respect of overhead expense allocations
among members of the Affiliate corporate group) to the Principals and/or to any
other Affiliates of the Company, other than the Company or any Guarantor.  The foregoing sentence shall not restrict the
Company from (i) paying salaries, bonuses or other compensation to, or
reimbursing travel or other business expenses of, officers or employees (other
than any such Person who is also a Principal) in the ordinary course of
business, or (ii) reimbursing travel or other business expenses of any
officer or director of the Company who is also a Principal, to the extent such
reimbursements or such expenses are customarily paid or reimbursed for all
officers and/or directors (as applicable) of the Company in the ordinary course
of the Company’s business, consistent with past practices, or (iii) making
Special Payments in compliance with the definition of such term.


 


SECTION 12


 


EFFECTIVENESS;
CONDITIONS OF LENDING, ETC.


 


The obligation of
each Lender to make its Loans and participate in the Existing Letters of
Credit, and of any Issuing Lender to issue Letters of Credit, is subject to the
following conditions precedent:


 


12.1        Initial Credit
Extension.


 


The obligation of
the Lenders to make the initial Loans and to participate in the Existing
Letters of Credit, and the obligation of the applicable Issuing Lender to issue
its initial Letter of Credit (whichever first occurs) is, in addition to the
conditions precedent specified in Section 12.2, subject to the
conditions precedent that the Administrative Agent shall received all of the
following, each duly executed and dated the Closing Date (or such earlier date
as shall be satisfactory to the Administrative Agent), in form and substance
reasonably satisfactory to the Administrative Agent (and the date on which all
such conditions precedent have been satisfied or waived in writing by the
Administrative Agent and the Lenders is called the “Closing Date”):


 


75

















 


12.1.1               Notes.


 


A Note for each Lender.


 


12.1.2               Authorization Documents.


 


For
the Company and each Guarantor, such Person’s (a) charter (or similar
formation document), certified by the appropriate governmental authority; (b) good
standing certificates in its state of incorporation (or formation) and in each
other state requested by the Administrative Agent; (c) bylaws (or similar
governing document); (d) resolutions of its board of directors (or similar
governing body) approving and authorizing such Person’s execution, delivery and
performance of the Loan Documents to which it is party and the transactions
contemplated thereby; and (e) signature and incumbency certificates of its
officers executing any of the Loan Documents (it being understood that the
Administrative Agent and each Lender may conclusively rely on each such
certificate until formally advised by a like certificate of any changes
therein), all certified by its secretary or an assistant secretary (or similar
officer) as being in full force and effect without modification.


 


12.1.3               Consents, etc.


 


Certified
copies of all documents evidencing any necessary corporate or partnership
action, consents and governmental approvals (if any) required for the
execution, delivery and performance by the Company and each Guarantor of the
documents referred to in this Section 12.


 


12.1.4               Guaranty and Collateral Agreement.


 


A
counterpart of the Guaranty and Collateral Agreement executed by the Company
and each Guarantor, together with all instruments, transfer powers and other
items required to be delivered in connection therewith.


 


12.1.5               Perfection Certificate.


 


A
Perfection Certificate completed and executed by the Company and each
Guarantor.


 


12.1.6               Opinions of Counsel.


 


Opinions
of counsel for the Company and each Guarantor, including local counsel
reasonably requested by the Administrative Agent.


 


76

















 


12.1.7               Insurance.


 


Evidence
of the existence of insurance required to be maintained pursuant to Section 10.3(b),
together with evidence that the Collateral Agent has been named as a lender’s
loss payee and an additional insured on all related insurance policies.


 


12.1.8               Copies of Documents.


 


Copies
of the documentation governing any Subordinated Debt certified by the secretary
or assistant secretary (or similar officer) of the Company as being true,
accurate and complete.


 


12.1.9               Payment of Fees.


 


Evidence
of payment by the Company of all accrued and unpaid fees, costs and expenses to
the extent then due and payable on the Closing Date, together with all Attorney
Costs of the Administrative Agent and the Joint Lead Arrangers to the extent
invoiced prior to the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute the Administrative Agent’s reasonable
estimate of Attorney Costs incurred or to be incurred by the Administrative
Agent through the closing proceedings (provided that such estimate shall
not thereafter preclude final settling of accounts between the Company and the
Administrative Agent).


 


12.1.10         Solvency Certificate.


 


A
Solvency Certificate executed by a Senior Officer of the Company.


 


12.1.11         Pro Forma.


 


A
consolidated pro  forma balance sheet of the Company as at March 31,
2008, adjusted to give effect to the consummation of the financings
contemplated hereby as if such financing had occurred on such date, consistent
in all material respects with the sources and uses of cash as previously
described to the Lenders and the forecasts previously provided to the Lenders.


 


12.1.12         Search Results; Lien Terminations.


 


Copies
of Uniform Commercial Code search reports dated a date reasonably near to the
Closing Date, listing all effective financing statements which name the Company
and each Guarantor (under their present names and any previous names) as
debtors, together with copies of such financing statements and, where feasible
prior to the Closing Date, together with Uniform Commercial Code or other
appropriate termination statements and documents effective to evidence the
foregoing (other than Liens permitted by Section 11.2) and such 


 


77

















 


other Uniform Commercial Code termination statements
as the Administrative Agent may reasonably request.


 


12.1.13         Filings, Registrations and Recordings.


 


The
Collateral Agent shall have received each document (including Uniform
Commercial Code financing statements) required by the Collateral Documents or
under law or reasonably requested by the Collateral Agent to be filed,
registered or recorded in order to create in favor of the Collateral Agent, for
the benefit of the Lenders, a perfected Lien on the collateral described
therein, prior to any other Liens (subject only to Liens permitted pursuant to Section 11.2),
in proper form for filing, registration or recording.


 


12.1.14         Closing Certificate, Consents and Permits.


 


A
certificate executed by an officer of the Company on behalf of the Company in
such capacity but not individually certifying the matters set forth in Section 12.2.1
as of the Closing Date.


 


12.1.15         Other.


 


Such other documents as the Administrative Agent or
any Lender may reasonably request.


 


12.2        Conditions.


 


The obligation (a) of
each Lender to make each Loan and participate in each Existing Letter of
Credit, and (b) of any Issuing Lender to issue each Letter of Credit is
subject to the following further conditions precedent that:


 


12.2.1               Compliance with Warranties, No
Default, etc.


 


Both
before and after giving effect to any borrowing and the issuance of any Letter
of Credit, the following statements shall be true and correct:


 


(a)           the
representations and warranties of each Loan Party and each Guarantor set forth
in this Agreement and the other Loan Documents shall be true and correct in all
material respects with the same effect as if then made (except to the extent
stated to relate to a specific earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date); and


 


(b)           no
Event of Default or Unmatured Event of Default shall have then occurred and be
continuing.


 


78

















 


12.2.2               Confirmatory
Certificate.


 


If
requested by the Administrative Agent or any Lender, the Administrative Agent
shall have received (in sufficient counterparts to provide one to each Lender)
a certificate dated the date of such requested Loan or Letter of Credit and
signed by a duly authorized representative of the Company in such capacity but
not individually as to the matters set out in Section 12.2.1 (it
being understood that each request by the Company for the making of a Loan or
the issuance of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Company that the conditions precedent set
forth in Section 12.2.1 will be satisfied at the time of the making
of such Loan or the issuance of such Letter of Credit), together with such
other documents as the Administrative Agent or any Lender may reasonably
request in support thereof.


 


12.2.3               Real Estate Documents.


 


If
requested by the Collateral Agent or any Lender, with respect to each parcel of
real property, at any time owned by the Company or any Guarantor, a duly
executed Mortgage providing for a fully perfected Lien, in favor of the
Collateral Agent, in all right, title and interest of the Company or such
Guarantor in such real property, together with:


 


(a)           an
ALTA Loan Title Insurance Policy, issued by an insurer acceptable to the
Collateral Agent, insuring the Collateral Agent’s Lien on such real property
and containing such endorsements as the Collateral Agent may reasonably require
(it being understood that the amount of coverage, exceptions to coverage and
status of title set forth in such policy shall be acceptable to the Collateral
Agent);


 


(b)           copies
of all documents of record concerning such real property as shown on the
commitment for the ALTA Loan Title Insurance Policy referred to above;


 


(c)           original
or certified copies of all insurance policies required to be maintained with
respect to such real property by this Agreement, the applicable Mortgage or any
other Loan Document;


 


(d)           a
survey certified to the Collateral Agent meeting such standards as the
Collateral Agent may reasonably establish and otherwise reasonably satisfactory
to the Collateral Agent;


 


(e)           a
flood insurance policy concerning such real property, if required by the Flood
Disaster Protection Act of 1973; and


 


(f)            an
appraisal, prepared by an independent appraiser engaged directly by the
Collateral Agent, of such parcel of real property or interest in real 


 


79

















 


property, which appraisal shall satisfy the
requirements of the Financial Institutions Reform, Recovery and Enforcement
Act, if applicable, and shall evidence compliance with the supervisory
loan-to-value limits set forth in the Federal Deposit Insurance Corporation
Improvement Act of 1991, if applicable.


 


Additionally,
(i) in the case of any leased real property (other than the Company’s
office located at 900 North Michigan Avenue, Suite 1600, Chicago,
Illinois) on which are located any assets or improvements (having a value of
$1,000,000 or more with respect to each real property address) owned by the
Company and/or any of its Subsidiaries and/or Joint Ventures, at any time upon
the request of the Collateral Agent or the Required Lenders, the Company and/or
its Subsidiary and/or Joint Venture, as applicable, shall use their best
efforts to provide a Collateral Access Agreement from the landlord of such
property waiving any landlord’s Lien in respect of personal property kept at
the premises subject to such lease, and (ii) in the case of any mortgaged
real property, a waiver from the mortgagee thereof waiving any Lien in respect
of personal property kept at the premises subject to such Mortgage.


 


SECTION 13


 


EVENTS OF DEFAULT
AND THEIR EFFECT


 


13.1        Events of Default.


 


Each
of the following shall constitute an Event of Default under this Agreement:


 


13.1.1               Non-Payment of the Loans, etc.


 


Default
in the payment when due of the principal of any Loan; or default, and
continuance thereof for five days, in the payment when due of any interest,
fee, reimbursement obligation with respect to any Letter of Credit or Existing
Letter of Credit or other amount payable by the Company or any Guarantor
hereunder or under any other Loan Document.


 


13.1.2               Non-Payment of Other Debt.


 


Any
default shall occur under the terms applicable to any Debt of any Loan Party or
Guarantor (other than non-recourse Debt of the Company or any of its
Subsidiaries or any Guarantor as the Administrative Agent shall consent, such
consent not to be unreasonably withheld) in an aggregate amount (for all such
Debt so affected and including undrawn committed or available amounts and
amounts owing to all creditors under any combined or syndicated credit
arrangement) exceeding $2,000,000 and such default shall (a) consist of
the failure to pay such Debt when due, whether by acceleration or otherwise, or
(b) accelerate the maturity of such Debt or permit the holder or holders
thereof, or 


 


80

















 


any trustee or agent for such holder or holders, to
cause such Debt to become due and payable (or require any Loan Party or
Guarantor to purchase or redeem such Debt or post cash collateral in respect
thereof) prior to its expressed maturity.


 


13.1.3               Other Material Obligations.


 


Default
in the payment when due, or in the performance or observance of, any material
obligation of, or condition agreed to by, any Loan Party or Guarantor with
respect to any material purchase or lease of goods or services where such
default, singly or in the aggregate with all other such defaults, could
reasonably be expected to have a Material Adverse Effect.


 


13.1.4               Bankruptcy, Insolvency, etc.


 


Any
Loan Party or Guarantor becomes insolvent or generally fails to pay, or admits
in writing its inability or refusal to pay, debts as they become due; or any
Loan Party or Guarantor applies for, consents to, or acquiesces in the
appointment of a trustee, receiver or other custodian for such Loan Party or
Guarantor or any property thereof, or makes a general assignment for the benefit
of creditors; or, in the absence of such application, consent or acquiescence,
a trustee, receiver or other custodian is appointed for any Loan Party or
Guarantor or for a substantial part of the property of any thereof and is not
discharged within 60 days; or any bankruptcy, reorganization, debt arrangement,
or other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding, is commenced in respect of any Loan
Party or Guarantor, and if such case or proceeding is not commenced by such
Loan Party or Guarantor, it is consented to or acquiesced in by such Loan Party
or Guarantor, or remains for 60 days undismissed; or any Loan Party or
Guarantor takes any action to authorize, or in furtherance of, any of the foregoing.


 


13.1.5               Non-Compliance with Loan Documents.


 


(a) Failure
by any Loan Party or Guarantor to comply with or to perform any covenant set
forth in Section 10.1.5, 10.3(b) or 10.5 or Section 11
or (b) failure by any Loan Party or Guarantor to comply with or to perform
any other provision of this Agreement or any other Loan Document (and not
constituting an Event of Default under any other provision of this Section 13)
and continuance of such failure described in this clause (b) for 30
days.


 


13.1.6               Representations; Warranties.


 


Any
representation or warranty made by any Loan Party or Guarantor herein or any
other Loan Document is breached or is false or misleading in any material
respect, or any schedule, certificate, financial statement, report, notice or
other writing furnished by any Loan Party or Guarantor to the Administrative 


 


81

















 


Agent or any Lender in connection herewith is false or
misleading in any material respect on the date as of which the facts therein
set forth are stated or certified.


 


13.1.7               Pension Plans.


 


(a) Any
Person institutes steps to terminate a Pension Plan if as a result of such
termination the Company or any member of the Controlled Group could be required
to make a contribution to such Pension Plan, or could incur a liability or
obligation to such Pension Plan, which contribution or liability could
reasonably be expected to have a Material Adverse Effect; (b) a
contribution failure occurs with respect to any Pension Plan sufficient to give
rise to a Lien under Section 302(f) of ERISA; (c) the Unfunded
Liability exceeds $1,000,000; or (d) there shall occur any withdrawal or
partial withdrawal from a Multiemployer Pension Plan and the withdrawal
liability (without unaccrued interest) to Multiemployer Pension Plans as a
result of such withdrawal (including any outstanding withdrawal liability that
the Company or any member of the Controlled Group have incurred on the date of
such withdrawal) could reasonably be expected to have a Material Adverse
Effect.


 


13.1.8               Judgments.


 


Final
judgments which exceed an aggregate of $2,000,000 shall be rendered against any
Loan Party or Guarantor and shall not have been paid, discharged or vacated or
had execution thereof stayed pending appeal within 30 days after entry or
filing of such judgments.


 


13.1.9               Invalidity of Collateral Documents,
etc.


 


Any
Collateral Document shall cease to be in full force and effect other than
pursuant to the terms thereof, or any of the Company or the Guarantors (or any Person
by, through or on behalf of any of the Company or the Guarantors) shall contest
in any manner the validity, binding nature or enforceability of any Collateral
Document.


 


13.1.10         Invalidity of Subordination Provisions, etc.


 


Any
subordination provision in any document or instrument governing Subordinated
Debt, or any subordination provision in any guaranty by any Subsidiary of any
Subordinated Debt, shall cease to be in full force and effect other than
pursuant to the terms thereof, or any Loan Party or Guarantor or any other
Person (including the holder of any applicable Subordinated Debt) shall contest
in any manner the validity, binding nature or enforceability of any such
provision.


 


82
















 


13.1.11         Change of Control.


 


A
Change of Control shall occur.


 


13.1.12         Material Adverse Effect.


 


The occurrence of any event having a Material Adverse
Effect.


 


13.2        Effect of Event of
Default.


 


If any Event of
Default described in Section 13.1.4 shall occur in respect of the
Company, the Commitments shall immediately terminate and the Loans and all
other Obligations hereunder shall become immediately due and payable and the
Company shall become immediately obligated to Cash Collateralize all Letters of
Credit and Existing Letters of Credit, all without presentment, demand, protest
or notice of any kind; and, if any other Event of Default shall occur and be
continuing, the Administrative Agent may (and, upon the written request of the
Required Lenders shall) declare the Commitments to be terminated in whole or in
part and/or declare all or any part of the Loans and all other Obligations
hereunder to be due and payable and/or demand that the Company immediately Cash
Collateralize all or any Letters of Credit and Existing Letters of Credit,
whereupon the Commitments shall immediately terminate (or be reduced, as
applicable) and/or the Loans and other Obligations hereunder shall become
immediately due and payable (in whole or in part, as applicable) and/or the Company
shall immediately become obligated to Cash Collateralize the Letters of Credit
and Existing Letters of Credit (all or any, as applicable), all without
presentment, demand, protest or notice of any kind.  The Administrative Agent shall promptly
advise the Company of any such declaration, but failure to do so shall not
impair the effect of such declaration. 
Any cash collateral delivered hereunder shall be held by the Collateral
Agent (without liability for interest thereon) and applied to the Obligations
arising in connection with any drawing under a Letter of Credit or Existing
Letter of Credit.  After the expiration
or termination of all Letters of Credit and Existing Letters of Credit, such
cash collateral shall be applied by the Administrative Agent to any remaining
Obligations hereunder and any excess shall be delivered to the Company or as a
court of competent jurisdiction may elect.


 


SECTION 14


 


THE AGENT


 


14.1        Appointment and
Authorization.


 


Each Lender hereby irrevocably (subject to Section 14.10)
appoints, designates and authorizes the Administrative Agent and the Collateral
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such
duties as are expressly delegated to each of them by the terms of this
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or 


 


83

















 


in any other Loan Document, the Administrative Agent
and the Collateral Agent shall not have any duty or responsibility except those
expressly set forth herein, nor shall the Administrative Agent or the
Collateral Agent have or be deemed to have any fiduciary relationship with any
Lender or participant, 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 or the
Collateral Agent.  Without limiting the
generality of the foregoing sentence, the use of the term “agent” herein and in
other Loan Documents with reference to the Administrative Agent or the
Collateral Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


14.2        Issuing Lender, Bank of
America and Wells.


 


(a)           Any
Issuing Lenders shall act on behalf of the Lenders (according to their Pro Rata
Shares) with respect to any Letters of Credit issued by it and the documents
associated therewith.  The Issuing
Lenders shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this Section 14 with respect to any acts
taken or omissions suffered by any such Issuing Lender in connection with
Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such Letters of
Credit as fully as if the term “Administrative Agent”, as used in this Section 14,
included such Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to such Issuing Lender.


 


(b)           Bank
of America and Wells, each in its capacity as the issuer of the Existing
Letters of Credit, shall act on behalf of the Lenders (according to their Pro
Rata Shares) with respect to any Existing Letters of Credit issued by it and
the documents associated therewith. Bank of America and Wells, each in such
capacity, shall have all of the benefits and immunities (i) provided to
the Administrative Agent in this Section 14 with respect to any
acts taken or omissions suffered by any of Bank of America or Wells in
connection with Existing Letters of Credit issued by it and the agreements for
letters of credit pertaining to such Existing Letters of Credit as fully as if
the term “Administrative Agent”, as used in this Section 14,
included Bank of America and Wells, each in such capacity with respect to such
acts or omissions, and (ii) as additionally provided in this Agreement
with respect to Bank of America and Wells, each in such capacity.


 


14.3        Delegation of Duties.


 


The Administrative
Agent and the Collateral Agent may execute any of their respective duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties.  The Administrative Agent and the Collateral
Agent shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that either one selects in the absence of gross negligence or
willful misconduct.


 


84

















 


14.4        Exculpation of Agents.


 


None of the
Administrative Agent, the Collateral Agent, nor any of their respective
directors, officers, employees or agents shall (a) be liable for any
action taken or omitted to be taken by any of them under or in connection with
this Agreement or any other Loan Document or the transactions contemplated
hereby (except to the extent resulting from its own gross negligence or willful
misconduct in connection with its duties expressly set forth herein as
determined by a final, nonappealable judgment by a court of competent
jurisdiction), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party, any Guarantor or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent or the Collateral Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document (or the creation, perfection or priority of any Lien or
security interest therein), or for any failure of the Company or any other
party to any Loan Document to perform its Obligations hereunder or
thereunder.  Neither the Administrative
Agent nor the Collateral Agent shall 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 Company or any
of the Company’s Subsidiaries or Affiliates or the Guarantors.


 


14.5        Reliance by Agents.


 


The Administrative
Agent and the Collateral Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, electronic mail message,
affidavit, letter, telegram, facsimile, telex or telephone message, statement
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 Company),
independent accountants and other experts selected by the Administrative Agent
or the Collateral Agent, as applicable. 
The Administrative Agent and the Collateral 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 as it deems appropriate and, if it so requests,
confirmation from the Lenders of their obligation to indemnify the
Administrative Agent or the Collateral Agent, as applicable, against any and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.  The
Administrative Agent and the Collateral Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders and such request and any action taken or failure to act pursuant
thereto shall be binding upon each Lender. 
For purposes of determining compliance with the conditions specified in Section 12,
each Lender that has signed this Agreement shall be deemed to have consented
to, approved or accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received 


 


85

















 


written notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.


 


14.6        Notice of Default.


 


The Administrative
Agent and the Collateral Agent shall not be deemed to have knowledge or notice
of the occurrence of any Event of Default or Unmatured Event of Default except
with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent or the Collateral Agent, as applicable, shall
have received written notice from a Lender or the Company referring to this
Agreement, describing such Event of Default or Unmatured Event of Default and
stating that such notice is a “notice of default”.  The Administrative Agent will notify the
Lenders of its receipt of any such notice. 
The Administrative Agent and the Collateral Agent shall take such action
with respect to such Event of Default or Unmatured Event of Default as may be
requested by the Required Lenders in accordance with Section 13; provided
that unless and until the Administrative Agent or the Collateral Agent, as
applicable, has received any such request, the Administrative Agent and the
Collateral Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Event of Default or
Unmatured Event of Default as it shall deem advisable or in the best interest
of the Lenders.


 


14.7        Credit Decision.


 


Each Lender
acknowledges that the Administrative Agent and the Collateral Agent have not
made any representation or warranty to it, and that no act by the
Administrative Agent or the Collateral Agent hereafter taken, including any
consent and acceptance of any assignment or review of the affairs of the Loan
Parties, shall be deemed to constitute any representation or warranty by the
Administrative Agent or the Collateral Agent to any Lender as to any matter,
including whether the Administrative Agent or the Collateral Agent has
disclosed material information in its possession.  Each Lender represents to the Administrative
Agent and the Collateral Agent that it has, independently and without reliance
upon the Administrative Agent or the Collateral Agent and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, prospects, operations, property,
financial and other condition and creditworthiness of the Loan Parties or the
Guarantors, and made its own decision to enter into this Agreement and to
extend credit to the Company hereunder. 
Each Lender also represents that it will, independently and without
reliance upon the Administrative Agent or the Collateral Agent 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 investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Company.  Except
for notices, reports and other documents expressly herein required to be
furnished to the Lenders by the Administrative Agent or the Collateral Agent,
as applicable, the Administrative Agent and the Collateral Agent shall not have
any duty or responsibility to provide any Lender with any credit or other
information concerning the business, prospects, 


 


86

















 


operations, property, financial or other condition or creditworthiness
of the Company which may come into the possession of the Administrative Agent
or the Collateral Agent, as applicable.


 


14.8        Indemnification.


 


Whether or not the
transactions contemplated hereby are consummated, each Lender shall indemnify
upon demand the Administrative Agent and the Collateral Agent and their
respective directors, officers, employees and agents (to the extent not
reimbursed by or on behalf of the Company and without limiting the obligation
of the Company to do so), according to its applicable Pro Rata Share, from and
against any and all Indemnified Liabilities (as hereinafter defined); provided
that no Lender shall be liable for any payment to any such Person of any
portion of the Indemnified Liabilities to the extent determined by a final,
nonappealable judgment by a court of competent jurisdiction to have resulted
from the applicable Person’s own gross negligence or willful misconduct.  No action taken in accordance with the
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section.  Without limitation of the foregoing, each
Lender shall reimburse the Administrative Agent and the Collateral Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
Attorney Costs and Taxes) incurred by the Administrative Agent or the
Collateral Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent or the Collateral Agent is not reimbursed for such
expenses by or on behalf of the Company. 
The undertaking in this Section shall survive repayment of the
Loans, cancellation of the Notes, expiration or termination of the Letters of
Credit and/or the Existing Letters of Credit, any foreclosure under, or
modification, release or discharge of, any or all of the Collateral Documents,
termination of this Agreement and the resignation or replacement of the
Administrative Agent and/or the Collateral Agent.


 


14.9        Agent in Individual
Capacity.


 


Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with the Loan Parties or the Guarantors and their respective Affiliates as
though Bank of America were not the Administrative Agent or the Collateral
Agent hereunder and without notice to or consent of any Lender.  Each Lender acknowledges that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or such
Affiliate) and acknowledge that neither the Administrative Agent nor the
Collateral Agent shall be under any obligation to provide such information to
them.  With respect to their Loans (if
any), Bank of America and its Affiliates shall have the same rights and powers
under this Agreement as any other Lender and may exercise the same as though
Bank of America were not the Administrative Agent or the Collateral Agent, and
the terms “Lender” and “Lenders” include Bank of America and its Affiliates, to
the extent applicable, in their individual capacities.


 


87

















 


14.10      Successor Agent.


 


(a)           The
Administrative Agent may resign as Administrative Agent upon 30 days’ notice to
the Lenders.  If the Administrative Agent
resigns under this Agreement, the Required Lenders shall, with (so long as no
Event of Default exists) the consent of the Company (which shall not be
unreasonably withheld or delayed), appoint from among the Lenders a successor
agent for the Lenders.  If no successor
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Company, a successor agent from among the
Lenders.  Upon the acceptance of its appointment
as successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term “Administrative
Agent” shall mean such successor agent, and the retiring Administrative Agent’s
appointment, powers and duties as Administrative Agent shall be
terminated.  After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the
provisions of this Section 14 and Sections 15.5 and 15.16
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.  If no successor agent has accepted
appointment as Administrative Agent by the date which is 30 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 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.


 


(b)           The
Collateral Agent may resign as Collateral Agent upon 30 days’ notice to the
Lenders.  If the Collateral Agent resigns
under the Loan Documents, the Required Lenders shall, with (so long as no Event
of Default exists) the consent of the Company (which shall not be unreasonably
withheld or delayed), appoint from among the Lenders a successor agent for the
Lenders.  If no successor agent is
appointed prior to the effective date of the resignation of the Collateral
Agent, the Collateral Agent may appoint, after consulting with the Lenders and
the Company, a successor agent from among the Lenders.  Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the
rights, powers and duties of the retiring Collateral Agent and the term “Collateral
Agent” shall mean such successor agent, and the retiring Collateral Agent’s
appointment, powers and duties as Collateral Agent shall be terminated.  After any retiring Collateral Agent’s
resignation under the Loan Documents as Collateral Agent, the provisions of
this Section 14 and Sections 15.5 and 15.16 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Collateral Agent under this Agreement. 
If no successor agent has accepted appointment as Collateral Agent by
the date which is 30 days following a retiring Collateral Agent’s notice of
resignation, the retiring Collateral Agent’s resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties of
the Collateral Agent hereunder until such time, if any, as the Required Lenders
appoint a successor agent as provided for above


 


14.11      Collateral Matters.


 


The Lenders
irrevocably authorize the Collateral Agent, at its option and in its discretion,
(a) to release any Lien granted to or held by the Collateral Agent under
any Collateral Document (i) upon termination of the Commitments and
payment in full of all Loans and all other 


 


88

















 


obligations of the Company hereunder and the expiration or termination
of all Letters of Credit and Existing Letters of Credit; (ii) constituting
property sold or to be sold or disposed of as part of or in connection with any
disposition permitted hereunder; or (iii) subject to Section 15.1,
if approved, authorized or ratified in writing by the Required Lenders; or (b) to
subordinate its interest in any collateral to any holder of a Lien on such
collateral which is permitted by Section 11.2(i) (it  being understood that the Collateral Agent
may conclusively rely on a certificate from the Company in determining whether
the Debt secured by any such Lien is permitted by Section 11.1(b) or
(m)).  Upon request by the Collateral
Agent at any time, the Lenders will confirm in writing the Collateral Agent’s
authority to release, or subordinate its interest in, particular types or items
of collateral pursuant to this Section 14.11.  Each Lender hereby authorizes the
Administrative Agent to give blockage notices in connection with any
Subordinated Debt at the direction of Required Lenders and agrees that it will
not act unilaterally to deliver such notices.


 


14.12      Administrative Agent May File
Proofs of Claim.


 


In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party or Guarantor, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the Company)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:


 


(a)           to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans, and all other Obligations that are owing
and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Administrative Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Administrative Agent and their respective agents and
counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 5, 15.5 and 15.16) allowed in such judicial
proceedings; and


 


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


 


and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall
consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 5,
15.5 and 15.16.


 


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


 


89

















 


14.13      Other Agents; Arrangers
and Managers.


 


None of the
Lenders or other Persons identified on the facing page or signature pages of
this Agreement as a “syndication agent,” “documentation agent,” “co-agent,” “book
manager,” “lead manager,” “arranger,” “lead arranger” or “co-arranger”, if any,
shall have any right, power, obligation, liability, responsibility or duty
under this Agreement other than, in the case of such Lenders, those applicable
to all Lenders as such.  Without limiting
the foregoing, none of the Lenders or other Persons so identified shall have or
be deemed to have any fiduciary relationship with any Lender.  Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.


 


SECTION 15


 


GENERAL


 


15.1        Waiver; Amendments.


 


No delay on the
part of the Administrative Agent, the Collateral Agent or any Lender in the
exercise of any right, power or remedy shall operate as a waiver thereof, nor
shall any single or partial exercise by any of them of any right, power or
remedy preclude other or further exercise thereof, or the exercise of any other
right, power or remedy.  No amendment,
modification or waiver of, or consent with respect to, any provision of this
Agreement or the other Loan Documents shall in any event be effective unless
the same shall be in writing and acknowledged by the Company and the Lenders
having aggregate Pro Rata Shares of not less than the aggregate Pro Rata Shares
expressly designated herein with respect to such amendment, modification,
waiver or consent or, in the absence of such designation as to any provision of
this Agreement, by the Required Lenders, and then any such amendment,
modification, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.  No amendment, modification, waiver or consent
shall (a) extend or increase the Commitment of any Lender without the
written consent of such Lender, (b) extend the date scheduled for payment
of any principal (excluding mandatory prepayments) of or interest on the Loans
or any fees payable hereunder without the written consent of each Lender
directly affected thereby, (c) reduce the principal amount of any Loan,
the rate of interest thereon (excluding waivers of any increases due to
existence of an Event of Default) or any fees payable hereunder, without the
consent of each Lender directly affected thereby; or (d) release all or
substantially all of the Guarantors or all or substantially of the collateral
granted under the Collateral Documents, change the definition of Required
Lenders, any provision of this Section 15.1or reduce the aggregate
Pro Rata Share required to effect an amendment, modification, waiver or
consent, without, in each case, the written consent of all Lenders.  No provision of Sections 6.2.2 or 6.3
with respect to the timing or application of mandatory prepayments of the Loans
shall be amended, modified or waived without the consent of Lenders having a
majority of the aggregate Pro Rata Shares of the Loans affected thereby.  No provision of Section 14 or
other provision of this Agreement affecting the Administrative Agent or the
Collateral in their respective capacities 


 


90

















 


as such shall be amended, modified or waived without the consent of the
Administrative Agent or the Collateral Agent, as applicable.  No provision of this Agreement relating to
the rights or duties of any Issuing Lender in its capacity as such shall be
amended, modified or waived without the consent of such Issuing Lender.  No provision of this Agreement relating to
the rights or duties of the Swing Line Lender in its capacity as such shall be
amended, modified or waived without the consent of the Swing Line Lender.


 


15.2        Confirmations.


 


The Company and
each holder of a Note agree from time to time, upon written request received by
it from the other, to confirm to the other in writing (with a copy of each such
confirmation to the Administrative Agent) the aggregate unpaid principal amount
of the Loans then outstanding under such Note.


 


15.3        Notices.


 


Except as
otherwise provided in Sections 2.2.2 and 2.2.3, all notices
hereunder shall be in writing (including facsimile transmission) and shall be
sent to the applicable party at its address shown on Annex B or at such
other address as such party may, by written notice received by the other
parties, have designated as its address for such purpose.  Notices sent by facsimile transmission shall
be deemed to have been given when sent; notices sent by mail shall be deemed to
have been given three Business Days after the date when sent by registered or
certified mail, postage prepaid; and notices sent by hand delivery or overnight
courier service shall be deemed to have been given when received.  For purposes of Sections 2.2.2 and 2.2.3,
the Administrative Agent shall be entitled to rely on telephonic instructions
from any person that the Administrative Agent in good faith believes is an
authorized officer or employee of the Company, and the Company shall hold the
Administrative Agent and each other Lender harmless from any loss, cost or
expense resulting from any such reliance.


 


15.4        Computations.


 


Where the
character or amount of any asset or liability or item of income or expense is
required to be determined, or any consolidation or other accounting computation
is required to be made, for the purpose of this Agreement, such determination
or calculation shall, to the extent applicable and except as otherwise
specified in this Agreement, be made in accordance with GAAP, consistently
applied; provided that if the Company notifies the Administrative Agent
that the Company wishes to amend any covenant in Section 11.3 (or
any related definition) to eliminate or to take into account the effect of any
change in GAAP on the operation of such covenant (or if the Administrative
Agent notifies the Company that the Required Lenders wish to amend Section 11.3
(or any related definition) for such purpose), then the Company’s compliance
with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant (or related definition) is amended in
a manner satisfactory to the Company and the Required Lenders.


 


91
















 


15.5        Costs, Expenses and
Taxes.


 


The Company agrees
to pay on demand all reasonable out-of-pocket costs and expenses of the
Administrative Agent, the Collateral Agent and the Issuing Lenders (including
Attorney Costs and any Taxes) in connection with the preparation, execution,
syndication, delivery and administration (including perfection and protection
of any collateral and the costs of Intralinks (or other similar service), if
applicable) of this Agreement, the other Loan Documents and all other documents
provided for herein or delivered or to be delivered hereunder or in connection
herewith (including any amendment, supplement or waiver to any Loan Document),
whether or not the transactions contemplated hereby or thereby shall be
consummated, and all reasonable out-of-pocket costs and expenses (including
Attorney Costs and any Taxes) incurred by the Administrative Agent, the
Collateral Agent and each Lender after an Event of Default in connection with
the collection of the Obligations or the enforcement of this Agreement the
other Loan Documents or any such other documents or during any workout,
restructuring or negotiations in respect thereof.  In addition, the Company agrees to pay, and
to save the Administrative Agent, the Collateral Agent and the Lenders harmless
from all liability for, any fees of the Company’s auditors in connection with
any reasonable exercise by the Administrative Agent, the Collateral Agent and
the Lenders of their rights pursuant to Section 10.2.  All Obligations provided for in this Section 15.5
shall survive repayment of the Loans, cancellation of the Notes, expiration or
termination of the Letters of Credit and/or the Existing Letters of Credit and
termination of this Agreement.


 


15.6        Assignments;
Participations.


 


15.6.1               Assignments.


 


(a)           Any
Lender may at any time assign to one or more Persons (any such Person, an “Assignee”)
all or any portion of such Lender’s Loans and Commitments, with the prior
written consent of the Administrative Agent, the Issuing Lenders and, so long
as no Event of Default exists, the Company (which consent by the Administrative
Agent, the Issuing Lenders and the Company shall not be unreasonably withheld
or delayed and shall not be required for an assignment by a Lender to a Lender
or an Affiliate of a Lender).  Except as
the Administrative Agent may otherwise agree, any such assignment shall be in a
minimum aggregate amount equal to $5,000,000 or, if less, the remaining
Commitment and Loans held by the assigning Lender.  The Company and the Administrative Agent
shall be entitled to continue to deal solely and directly with such Lender in
connection with the interests so assigned to an Assignee until the
Administrative Agent shall have received and accepted an effective assignment
agreement in substantially the form of Exhibit C hereto (an “Assignment
Agreement”) executed, delivered and fully completed by’ the applicable
parties thereto and a processing fee of $2,500. 
No assignment may be made to any Person if at the time of such
assignment the Company would be obligated to pay any greater amount under Section 7.6
or 8 to the Assignee than the Company is then obligated to pay to the
assigning Lender under such Sections (and if any assignment is made in
violation of the foregoing, the Company will not be 


 


92

















 


required to pay such greater amounts).  Any attempted assignment not made in
accordance with this Section 15.6.1 shall be treated as the sale of
a participation under Section 15.6.2.  The Company shall be deemed to have granted
its consent to any assignment requiring its consent hereunder unless the
Company has expressly objected to such assignment within three Business Days
after notice thereof.


 


(b)           From
and after the date on which the conditions described above have been met, (i) such
Assignee shall be deemed automatically to have become a party hereto and, to
the extent that rights and obligations hereunder have been assigned to such
Assignee pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (ii) the assigning Lender, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment Agreement, shall be released from its rights (other than its
indemnification rights) and obligations hereunder.  Upon the request of the Assignee (and, as
applicable, the assigning Lender) pursuant to an effective Assignment
Agreement, the Company shall execute and deliver to the Administrative Agent
for delivery to the Assignee (and, as applicable, the assigning Lender) a Note
in the principal amount of the Assignee’s Pro Rata Share of the Revolving
Commitment (and, as applicable, a Note in the principal amount of the Pro Rata
Share of the Revolving Commitment retained by the assigning Lender.  Each such Note shall be dated the effective
date of such assignment.  Upon receipt by
the assigning Lender of such Note, the assigning Lender shall return to the Company
any prior Note held by it.


 


(c)           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.


 


15.6.2               Participations.


 


Any
Lender may at any time sell to one or more Persons participating interests in
its Loans, Commitments or other interests hereunder (any such Person, a “Participant”).  In the event of a sale by a Lender of a
participating interest to a Participant, (a) such Lender’s obligations
hereunder shall remain unchanged for all purposes, (b) the Company and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations hereunder and (c) all
amounts payable by the Company shall be determined as if such Lender had not
sold such participation and shall be paid directly to such Lender.  No Participant shall have any direct or
indirect voting rights hereunder except with respect to any event described in Section 15.1
expressly requiring the unanimous vote of all Lenders or, as applicable, all 


 


93

















 


affected Lenders. 
Each Lender agrees to incorporate the requirements of the preceding sentence
into each participation agreement which such Lender enters into with any
Participant.  The Company agrees that if
amounts outstanding under this Agreement are due and payable (as a result of
acceleration or otherwise), each Participant shall be deemed to have the right
of set-off in respect of its participating interest in amounts owing under this
Agreement and with respect to any Letter of Credit or Existing Letter of Credit
to the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement; provided that such
right of set-off shall be subject to the obligation of each Participant to
share with the Lenders, and the Lenders agree to share with each Participant,
as provided in Section 7.5. 
The Company also agrees that each Participant shall be entitled to the
benefits of Section 7.6 or 8 as if it were a Lender (provided
that on the date of the participation no Participant shall be entitled to any
greater compensation pursuant to Section 7.6 or 8 than would have
been paid to the participating Lender on such date if no participation had been
sold and that each Participant complies with Section 7.6(d) as
if it were an Assignee).


 


15.7        Register.


 


The Administrative
Agent shall maintain a copy of each Assignment Agreement delivered and accepted
by it and register (the “Register”) for the recordation of names and
addresses of the Lenders and the Commitment of each Lender from time to time
and whether such Lender is the original Lender or the Assignee.  No assignment shall be effective unless and
until the Assignment Agreement is accepted and registered in the Register.  All records of transfer of a Lender’s
interest in the Register shall be conclusive, absent manifest error, as to the
ownership of the interests in the Loans. 
The Administrative Agent shall not incur any liability of any kind with
respect to any Lender with respect to the maintenance of the Register.


 


15.8        GOVERNING LAW.


 


THIS AGREEMENT AND EACH NOTE SHALL BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.


 


15.9        Confidentiality.


 


As required by
federal law and the Administrative Agent’s policies and practices, the
Administrative Agent may need to obtain, verify, and record certain customer
identification information and documentation in connection with opening or
maintaining accounts, or establishing or continuing to provide services.  The Administrative Agent, the Collateral
Agent and each Lender agree to use commercially reasonable efforts (equivalent
to the efforts the Administrative Agent, the Collateral Agent or such Lender
applies to maintain the confidentiality of its own confidential information) to
maintain as confidential all information provided to them 


 


94

















 


by any Loan Party or Guarantor and designated as confidential, except
that the Administrative Agent, the Collateral Agent and each Lender may
disclose such information (a) to Persons employed or engaged by the
Administrative Agent, the Collateral Agent or such Lender in evaluating,
approving, structuring or administering the Loans and the Commitments; (b) to
any assignee or participant or potential assignee or participant that has
agreed to comply with the covenant contained in this Section 15.9
(and any such assignee or participant or potential assignee or participant may
disclose such information to Persons employed or engaged by them as described
in clause (a) above); (c) as required or requested by any federal or
state regulatory authority or examiner, or any insurance industry association,
or as reasonably believed by the Administrative Agent, the Collateral Agent or
such Lender to be compelled by any court decree, subpoena or legal or
administrative order or process; (d) as, on the advice of the
Administrative Agent’s, the Collateral Agent’s or such Lender’s counsel, is
required by law; (e) in connection with the exercise of any right or
remedy under the Loan Documents or in connection with any litigation to which
the Administrative Agent, the Collateral Agent or such Lender is a party; (f) to
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; (g) to any Affiliate of the Administrative Agent,
the Collateral Agent, any Issuing Lender or any other Lender who may provide
Bank Products to the Loan Parties or Guarantors; or (h) that ceases to be
confidential through no fault of the Administrative Agent, the Collateral Agent
or any Lender.  Notwithstanding the
foregoing, the Company consents to the publication by the Administrative Agent
or any Lender of a tombstone or similar advertising material relating to the
financing transactions contemplated by this Agreement, and the Administrative
Agent reserves the right to provide to industry trade organizations information
necessary and customary for inclusion in league table measurements.


 


15.10      Severability.


 


Whenever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.  All obligations
of the Company and rights of the Administrative Agent and the Lenders expressed
herein or in any other Loan Document shall be in addition to and not in
limitation of those provided by applicable law.


 


15.11      Nature of Remedies.


 


All Obligations of
the Company and rights of the Administrative Agent, the Collateral Agent and
the Lenders expressed herein or in any other Loan Document shall be in addition
to and not in limitation of those provided by applicable law.  No failure to exercise and no delay in
exercising, on the part of the Administrative Agent, the Collateral Agent or
any Lender, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege.


 


95

















 


15.12      Entire Agreement.


 


This Agreement,
together with the other Loan Documents, embodies the entire agreement and understanding
among the parties hereto and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof (except as relates to the fees described in Section 5.3)  and any prior arrangements made with respect to the payment
by the Company of (or any indemnification for) any fees, costs or expenses
payable to or incurred (or to be incurred) by or on behalf of the
Administrative Agent, the Collateral Agent or the Lenders.


 


15.13      Counterparts.


 


This Agreement may
be executed in any number of counterparts and by the different parties hereto
on separate counterparts and each such counterpart shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Agreement.  Receipt of an executed
signature page to this Agreement by facsimile or other electronic
transmission shall constitute effective delivery thereof.  Electronic records of executed Loan Documents
maintained by the Lenders shall deemed to be originals.


 


15.14      Successors and Assigns.


 


This Agreement
shall be binding upon the Company, the Lenders, the Administrative Agent, the
Collateral Agent and their respective successors and assigns, and shall inure
to the benefit of the Company, the Lenders, the Administrative Agent and the
Collateral Agent and the successors and assigns of the Lenders, the
Administrative Agent and the Collateral Agent. 
No other Person shall be a direct or indirect legal beneficiary of, or
have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. 
The Company may not assign or transfer any of its rights or Obligations
under this Agreement without the prior written consent of the Administrative Agent
and each Lender.


 


15.15      Captions.


 


Section captions
used in this Agreement are for convenience only and shall not affect the
construction of this Agreement.


 


15.16      Indemnification by the
Company.


 


IN
CONSIDERATION OF THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE
ADMINISTRATIVE AGENT, THE COLLATERAL AGENT, THE ISSUING LENDERS AND THE LENDERS
AND THE AGREEMENT TO EXTEND THE COMMITMENTS PROVIDED HEREUNDER, THE COMPANY
HEREBY AGREES TO INDEMNIFY, EXONERATE AND HOLD THE ADMINISTRATIVE AGENT, THE COLLATERAL
AGENT, THE ISSUING LENDERS, EACH LENDER AND EACH OF THE OFFICERS, DIRECTORS,
EMPLOYEES, AFFILIATES AND AGENTS OF THE ADMINISTRATIVE AGENT, THE COLLATERAL
AGENT, THE IS SUING LENDERS AND EACH LENDER (EACH A “LENDER PARTY”) FREE AND 


 


96

















 


HARMLESS FROM AND AGAINST ANY AND ALL ACTIONS,
CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES, DAMAGES AND EXPENSES, INCLUDING
ATTORNEY COSTS (COLLECTIVELY, THE “INDEMNIFIED LIABILITIES”), INCURRED BY THE
LENDER PARTIES OR ANY OF THEM AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO
(A) ANY TENDER OFFER, MERGER, PURCHASE OF CAPITAL SECURITIES, PURCHASE OF
ASSETS (INCLUDING THE RELATED TRANSACTIONS) OR OTHER SIMILAR TRANSACTION
FINANCED OR PROPOSED TO BE FINANCED IN WHOLE OR IN PART, DIRECTLY OR
INDIRECTLY, WITH THE PROCEEDS OF ANY OF THE LOANS, (B) THE USE, HANDLING,
RELEASE, EMISSION, DISCHARGE, TRANSPORTATION, STORAGE, TREATMENT OR DISPOSAL OF
ANY HAZARDOUS SUBSTANCE AT ANY PROPERTY OWNED OR LEASED BY ANY LOAN PARTY, (C) ANY
VIOLATION OF ANY ENVIRONMENTAL LAWS WITH RESPECT TO CONDITIONS AT ANY PROPERTY
OWNED OR LEASED BY ANY LOAN PARTY OR THE OPERATIONS CONDUCTED THEREON, (D) THE
INVESTIGATION, CLEANUP OR REMEDIATION OF OFFSITE LOCATIONS AT WHICH ANY LOAN
PARTY OR THEIR RESPECTIVE PREDECESSORS ARE ALLEGED TO HAVE DIRECTLY OR
INDIRECTLY DISPOSED OF HAZARDOUS SUBSTANCES OR (E) THE EXECUTION,
DELIVERY, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT BY ANY OF THE LENDER PARTIES, EXCEPT FOR ANY SUCH INDEMNIFIED
LIABILITIES ARISING ON ACCOUNT OF THE APPLICABLE LENDER PARTY’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT AS DETERMINED BY A FINAL, NONAPPEALABLE
JUDGMENT BY A COURT OF COMPETENT JURISDICTION. 
IF AND TO THE EXTENT THAT THE FOREGOING UNDERTAKING MAY BE
UNENFORCEABLE FOR ANY REASON, THE COMPANY HEREBY AGREES TO MAKE THE MAXIMUM
CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF THE INDEMNIFIED
LIABILITIES WHICH IS PERMISSIBLE UNDER APPLICABLE LAW.  ALL OBLIGATIONS PROVIDED FOR IN THIS SECTION 15.16
SHALL SURVIVE REPAYMENT OF THE LOANS, CANCELLATION OF THE NOTES, EXPIRATION OR
TERMINATION OF THE LETTERS OF CREDIT, ANY FORECLOSURE UNDER, OR ANY
MODIFICATION, RELEASE OR DISCHARGE OF, ANY OR ALL OF THE COLLATERAL DOCUMENTS
AND TERMINATION OF THIS AGREEMENT.


 


15.17      Nonliability of Lenders.


 


The relationship
between the Company on the one hand and the Lenders and the Administrative
Agent, the Collateral Agent and the Issuing Lenders on the other hand shall be
solely that of borrower and lender. 
Neither the Administrative Agent , the Collateral Agent, the Issuing
Lenders, Bank of America as the issuer of Existing Letters of Credit, Wells, as
the issuer of the Existing Letters of Credit nor any Lender has any fiduciary
relationship with or duty to any Loan Party or Guarantor arising out of or in
connection with this Agreement or any of the other Loan Documents, and the
relationship between the Loan Parties and the Guarantors, on the one hand, and
the Administrative Agent, the Collateral Agent, the Issuing Lenders, Bank of
America as the issuer of Existing Letters of Credit, Wells as the issuer of the
Existing Letters of Credit and the Lenders, on the other hand, in connection
herewith or therewith is solely that of 


 


97

















 


debtor and creditor.  Neither the
Administrative Agent, the Collateral Agent, the Issuing Lenders, Bank of
America as the issuer of Existing Letters of Credit, Wells as the issuer of
Existing Letters of Credit nor any Lender undertakes any responsibility to any
Loan Party or Guarantor to review or inform any Loan Party or Guarantor of any
matter in connection with any phase of any Loan Party’s or Guarantor’s business
or operations.  The Company agrees, on
behalf of itself and each other Loan Party and Guarantor, that neither the
Administrative Agent, the Collateral Agent, any Issuing Lender, Bank of America
as the issuer of Existing Letters of Credit, Wells as the issuer of the
Existing Letters of Credit nor any Lender shall have liability to any Loan
Party or Guarantor (whether sounding in tort, contract or otherwise) for losses
suffered by any Loan Party or Guarantor in connection with, arising out of or
in any way related to the transactions contemplated and the relationship
established by the Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-appealable
judgment by a court of competent jurisdiction that such losses resulted from
the gross negligence or willful misconduct of the party from which recovery is
sought.  NO LENDER
PARTY OR LOAN PARTY OR GUARANTOR SHALL BE LIABLE FOR ANY DAMAGES ARISING FROM
THE USE BY OTHERS OF ANY INFORMATION OR OTHER MATERIALS OBTAINED THROUGH
INTRALINKS OR OTHER SIMILAR INFORMATION TRANSMISSION SYSTEMS IN CONNECTION WITH
THIS AGREEMENT, NOR SHALL ANY LENDER PARTY OR LOAN PARTY OR GUARANTOR HAVE ANY
LIABILITY WITH RESPECT THERETO, EXCEPT AS A RESULT OF ITS OWN GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT.  The
Company acknowledges that it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents to which
it is a party.  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 Loan
Parties, Guarantors and the Lenders.


 


15.18      Forum Selection and
Consent to Jurisdiction.


 


ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE
ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION.  THE COMPANY HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH
ABOVE.  THE COMPANY FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS.  THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW
OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH 


 


98

















 


LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.


 


15.19      Waiver of Jury Trial.


 


EACH OF THE COMPANY, THE ADMINISTRATIVE AGENT, THE
COLLATERAL AGENT, ANY ISSUING LENDER, BANK OF AMERICA AS THE ISSUER OF EXISTING
LETTERS OF CREDIT,  WELLS AS THE ISSUER OF THE
EXISTING LETTERS OF CREDIT AND EACH LENDER HEREBY WAIVES ANY RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT, ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN
CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY LENDING RELATIONSHIP
EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 


15.20      No Advisory or Fiduciary
Responsibility.


 


In connection with
all aspects of each transaction contemplated hereby, the Company acknowledges
and agrees, and acknowledges its Affiliates’ understanding, that: (i) the credit facility provided for hereunder and any
related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any
other Loan Document) are an arm’s-length commercial transaction between the
Company and its Affiliates, on the one hand, and the
Administrative Agent and BAS, on the other hand, and the Company is capable of
evaluating and understanding and understands and accepts the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan
Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction,
the Administrative Agent and BAS each is and has been acting solely as a
principal and is not the financial advisor, agent or fiduciary, for the Company
or any of Affiliates, stockholders, creditors or employees or any other Person;
(iii) neither the Administrative Agent nor BAS has assumed or will assume
an advisory, agency or fiduciary responsibility in favor of the Company with
respect to any of the transactions contemplated hereby or the process leading
thereto, including with respect to any amendment, waiver or other modification hereof
or of any other Loan Document (irrespective of whether the Administrative Agent
or BAS has advised or is currently advising the Company or any of its
Affiliates on other matters) and neither the Administrative Agent nor BAS has
any obligation to the Company or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth
herein and in the other Loan Documents; (iv) the Administrative Agent and
BAS and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and
its Affiliates, and neither the Administrative Agent nor BAS has any obligation
to disclose any of such interests by virtue of any advisory, agency or fiduciary
relationship; and (v) the Administrative Agent and BAS have not provided
and will not provide any legal, accounting, regulatory or tax advice with 


 


99

















 


respect to any of the transactions contemplated hereby (including any
amendment, waiver or other modification hereof or of any other Loan Document)
and the Company has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate.  The Company hereby waives and releases, to
the fullest extent permitted by law, any claims that it may have against the
Administrative Agent or BAS with respect to any breach or alleged breach of
agency or fiduciary duty.


 


15.21      USA PATRIOT Act Notice.


 


Each Lender that
is subject to the Act (as hereinafter defined) and the Administrative Agent
(for itself and not on behalf of any Lender) hereby notifies the Company 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 each Loan
Party, which information includes the name and address of each Loan Party and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Loan Party in accordance with the Act.


 


[signature pages follow]


 


100

















 


The
parties hereto have caused this Agreement to be duly executed and delivered by
their duly authorized officers as of the date first set forth above.


 


	
   

  	
  STANDARD PARKING CORPORATION,

  	 

	
   

  	
   

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	
  /s/ G. Marc Baumann

  	 

	
   

  	
  Name:

  	
  G. Marc Baumann

  	 

	
   

  	
  Title:

  	
  Executive Vice President and

  	 

	
   

  	
   

  	
  Chief Financial Officer

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  BANK OF AMERICA, N.A.,

  	 

	
   

  	
  as Administrative Agent, Issuing Lender and as a

  Lender

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	
  /s/ Charlene Wright-Jones

  	 

	
   

  	
  Name:

  	
  Charlene Wright-Jones

  	 

	
   

  	
  Title:

  	
   

  	
  Assistant Vice President

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
   

  	
   

  	 

	
   

  	
  WELLS FARGO BANK N.A.,

  	 

	
   

  	
  as Syndication Agent, Issuing Lender and as a

  Lender

  	 

	
   

  	
   

  	 

	
   

  	
  By:

  	
   

  	
  /s/ Steven Nickas

  	 

	
   

  	
  Name:

  	
   

  	
  Steven Nickas

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  	 

								



 

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Issuing Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Craig W. McGuire

  
	
   

  	
  Name:

  	
  Craig W. McGuire

  
	
   

  	
  Title:

  	
   

  	
  Senior Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  [page break]

  
	
   

  	
   

  
	
  LENDERS:

  	
   

  
	
   

  	
   

  
	
   

  	
  FIRST HAWAIIAN BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Dawn Hofmann

  
	
   

  	
  Name:

  	
  Dawn Hofmann

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  [page break]

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ F. August Haug

  
	
   

  	
  Name:

  	
  F. August Haug

  
	
   

  	
  Title:

  	
   

  	
  Assistant Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  [page break]

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHASE BANK, N.A.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Janet Ahkhan

  
	
   

  	
  Name:

  	
  Janet Ahkhan

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
  [page break]

  
	
   

  	
   

  
	
   

  	
  FIFTH THIRD BANK,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Daniel J. McHugh

  
	
   

  	
  Name:

  	
  Daniel J. McHugh

  
	
   

  	
  Title:

  	
   

  	
  Vice President

  
								



 
















 


ANNEX A


 


LENDERS AND PRO
RATA SHARES


 


	
  Lender

  	
   

  	
  Revolving Commitment

  Amount

  	
   

  	
  Pro Rata Share

  	
   

  
	
  Bank of America,
  N.A.

  	
   

  	
  $

  	
  60,000,000

  	
   

  	
  28.571428571

  	
  %

  
	
  Wells Fargo
  Bank, N.A.

  	
   

  	
  $

  	
  55,000,000

  	
   

  	
  26.190476190

  	
  %

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  11.904761905

  	
  %

  
	
  JPMorgan Chase
  Bank, N.A.

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  11.904761905

  	
  %

  
	
  U.S. Bank
  National Association

  	
   

  	
  $

  	
  25,000,000

  	
   

  	
  11.904761905

  	
  %

  
	
  First Hawaiian
  Bank

  	
   

  	
  $

  	
  20,000,000

  	
   

  	
  9.523809524

  	
  %

  
	
  TOTAL

  	
   

  	
  $

  	
  210,000,000

  	
   

  	
  100.00000000

  	
  %

  



 

















 


ANNEX B


 


ADDRESSES FOR
NOTICES


 


Address for All Loan
Parties:


 


If to Borrower:


 


Standard Parking
Corporation


900 North Michigan Avenue


Chicago, Illinois 60611


 


Attention:  G. Marc Baumann


Telephone:  312-274-2199


Telecopier:  312-640-6165


Electronic Mail: mbaumann@standardparking.com


 


With a Copy to:


 


Schwartz Cooper Chartered


180 North LaSalle Street,
Suite 2700


Chicago, IL 60601


 


Attention: Andrew H.
Connor


Telephone: (312) 845-5118


Telecopier:  (312) 782-8416


Electronic Mail:  AConnor@schwartzcooper.com


 


Address for
Administrative Agent:


 


For Payments and Requests for
Credit Extensions:


 


Bank of America


Global Product Solutions


231 S. LaSalle Street


Mail Code IL1-231-10-41


Chicago, IL 60604


 


Attention:  Charlene Wright-Jones


AVP, Agency Management


Telephone:  312.828.3935


Facsimile:  877.206.8427


 


Wire Instructions:


 


	
  ABA #: 

  	
  026009593

  
	
  Account #: 

  	
  1292000883

  
	
  Attention: 

  	
  Credit Services

  
	
  Ref: 

  	
  Standard Parking Corp.

  



 

















 


Other Notices as Administrative
Agent:


 


Bank of America


231 South LaSalle Street


Chicago, IL  60697-0001


 


Attention:  Craig W. McGuire


Senior Vice President


Telephone:   312-828-1320


Facsimile:    312-974-0333


 


Address for Issuing
Lender:


 


Bank of America, N.A.


Alfonso Malave Jr


VP; OPERATIONS MANAGER


0202 TRADE SERVICES
STAND-BYS RI


Bank of America


Mail Code: PA6-580-02-30


1 FLEET WAY


SCRANTON PA 18507


Phone:  1.570.330.4212


Fax:  1.570.330.4186


Email:
alfonso.malave@bankofamerica.com


 


Wells Fargo Bank, N.A.


Steve Nickas


Vice President


230 W. Monroe St.


Suite 2900


Chicago, IL  60606


Phone:  (312) 762 – 9009


Fax:  (312) 795 – 9388


nickas@wellsfargo.com


 
















 


EXHIBIT A


 


FORM OF


NOTE


 


                                ,         


 


The
undersigned, for value received, promises to pay to the order of
                                          
or registered assigns (the “Lender”), in accordance with the provisions
of the Credit Agreement (as hereinafter defined), the aggregate unpaid amount
of all Loans made to the undersigned by the Lender pursuant to the Credit
Agreement referred to below (as shown on the schedule attached hereto (and any
continuation thereof) or in the records of the Lender), such principal amount
to be payable on the dates set forth in the Credit Agreement.


 


The
undersigned further promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such Loan is paid in full, payable
at the rate(s) and at the time(s) set forth in the Credit
Agreement.  Payments of both principal
and interest are to be made in lawful money of the United States of America.


 


This
Note evidences indebtedness incurred under, and is subject to the terms and
provisions of, the Amended and Restated Credit Agreement, dated as of July     ,
2008 (as amended, restated, supplemented or otherwise modified from time to
time, the “Credit Agreement” terms not otherwise defined herein are used
herein as defined in the Credit Agreement), among the undersigned, certain
financial institutions (including the Lender), the Administrative Agent and
Collateral Agent, to which Credit Agreement reference is hereby made for a
statement of the terms and provisions under which this Note may or must be paid
prior to its due date or its due date accelerated.


 


This
Note is one of the Notes referred to in the Credit Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein.  Upon
the occurrence and continuation of one or more of the Events of Default
specified in the Credit Agreement, all amounts then remaining unpaid on this
Note shall become, or may be declared to be, immediately due and payable all as
provided in the Credit Agreement.


 


This Note is made under
and governed by the laws of the State of Illinois applicable to contracts made
and to be performed entirely within such State.


 

















 


	
   

  	
  STANDARD PARKING
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


2

















 


EXHIBIT B


 


FORM OF
COMPLIANCE CERTIFICATE


 


To:          Bank of America, N.A., as
Administrative Agent


 


Please refer to the
Amended and Restated Credit Agreement dated as of July     ,
2008  (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”) among
Standard Parking Corporation (the “Company”), various financial
institutions and Bank of America, N.A., as Administrative Agent and Collateral
Agent.  Terms used but not otherwise
defined herein are used herein as defined in the Credit Agreement.


 


I.                                                         Reports.
Enclosed herewith is a copy of the [annual audited/quarterly] report of the
Company as at           ,
                    (the “Computation Date”), which report
fairly presents in all material respects the financial condition and results of
operations [(subject to the absence of footnotes and to normal year-end
adjustments)] of the Company as of the Computation Date and has been prepared
in accordance with GAAP consistently applied.


 


II.                                                     Financial
Tests. The Company hereby certifies and warrants to you that the following
is a true and correct computation as at the Computation Date of the following
ratios and/or financial restrictions contained in the Credit Agreement:


 


[REVISE AS
APPROPRIATE]


 


A.            Section 11.13.1
- Minimum Fixed Charge Coverage Ratio


 


	
  1.

  	
   

  	
  EBITDA

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Income taxes paid or
  payable in cash

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Unfinanced Capital
  Expenditures

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Sum of (2) and (3)

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Remainder of
  (1) minus (4)

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  cash Interest Expense

  	
   

  	
   

  
	
   

  	
   

  	
  (net of cash interest
  income)

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Required payments of

  	
   

  	
   

  
	
   

  	
   

  	
  principal of Funded
  Debt

  	
   

  	
   

  
	
   

  	
   

  	
  (excluding Revolving
  Loans)

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Sum of (6) and (7)

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Ratio of (5) to
  (8)

  	
   

  	
             

  	
  to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Minimum Required by
  Section 11.13.1

  	
   

  	
  2.0 to 1.0

  
										



 

















 


B.            Section 11.13.2
- Maximum Total Debt to EBITDA Ratio


 


	
  1.

  	
   

  	
  Total Debt

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  EBITDA

  	
   

  	
  $

  	
                

  
	
   

  	
   

  	
  (from Item
  A(1) above)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Ratio of (1) to
  (2)

  	
   

  	
            

  	
  to 1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Maximum allowed

  	
   

  	
            

  	
  to 1

  
								



 


The Company further
certifies to you that no Event of Default or Unmatured Event of Default has
occurred and is continuing.


 


The Company has caused
this Certificate to be executed and delivered by its duly authorized officer on
                ,20    .


 


	
   

  	
  STANDARD PARKING
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


2

















 


EXHIBIT C


 


FORM OF


ASSIGNMENT
AGREEMENT


 


Date:                                   


 


To:          Standard Parking Corporation


 


and


 


Bank of America, as
Administrative Agent


 


Re:          Assignment under the Credit Agreement
referred to below


 


Gentlemen and Ladies:


 


Please refer to Section 15.6.1
of the Amended and Restated Credit Agreement dated as of July     ,
2008 (as amended or otherwise modified from time to time, the “Credit
Agreement”) among Standard Parking Corporation (the “Company”),
various financial institutions and Bank of America, N.A., as administrative
agent and collateral agent (in each such capacity, the “Administrative Agent”
or the “Collateral Agent”). 
Unless otherwise defined herein or the context otherwise requires, terms
used herein have the meanings provided in the Credit Agreement.


 


                                    
(the “Assignor”) hereby sells and assigns, without recourse, to (the “Assignee”),
and the Assignee hereby purchases and assumes from the Assignor, that interest
in and to the Assignor’s rights and obligations under the Credit Agreement as
of the date hereof equal to
            % of
all of the Loans, of the participation interests in the Letters of Credit,
Existing Letters of Credit and of the Commitments, such sale, purchase,
assignment and assumption to be effective as
of          ,
                      ,
or such later date on which the Company and the Administrative Agent shall have
consented hereto (the “Effective Date”). After giving effect to such
sale, purchase, assignment and assumption, the Assignee’s and the Assignor’s
respective Percentages for purposes of the Credit Agreement will be as set
forth opposite their names on the signature pages hereof.


 


The Assignor hereby
instructs the Administrative Agent to make all payments from and after the
Effective Date in respect of the interest assigned hereby directly to the
Assignee. The Assignor and the Assignee agree that all interest and fees
accrued up to, but not including, the Effective Date are the property of the
Assignor, and not the Assignee. The Assignee agrees that, upon receipt of any
such interest or fees, the Assignee will promptly remit the same to the
Assignor.


 

















 


The Assignor represents
and warrants that it is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any
adverse claim.


 


The Assignee represents
and warrants to the Company and the Administrative Agent that, as of the date
hereof; the Company will not be obligated to pay any greater amount under Section 7.6
or 8 of the Credit Agreement than the Company is obligated to pay to the
Assignor under such Section. [The Assignee has delivered, or is delivering
concurrently herewith, to the Company and the Administrative Agent the forms
required by Section 7.6 of the Credit Agreement.] [INSERT IF ASSIGNEE IS
ORGANIZED UNDER THE LAWS OF A JURISDICTION OTHER THAN THE UNITED STATES OF
AMERICA OR A STATE THEREOF.] The [Assignee/Assignor] [Borrower] shall pay the
fee payable to the Administrative Agent pursuant to Section 15.6.1.


 


The Assignee hereby
confirms that it has received a copy of the Credit Agreement.  Except as otherwise provided in the Credit
Agreement, effective as of the Effective Date:


 


(a)           the Assignee (i) shall
be deemed automatically to have become a party to the Credit Agreement and to
have all the rights and obligations of a “Lender” under the Credit Agreement as
if it were an original signatory thereto to the extent specified in the second
paragraph hereof; and (ii) agrees to be bound by the terms and conditions
set forth in the Credit Agreement as if it were an original signatory thereto;
and


 


(b)           the Assignor
shall be released from its obligations under the Credit Agreement to the extent
specified in the second paragraph hereof.


 


The Assignee hereby
advises each of you of the following administrative details with respect to the
assigned Loans and Commitment:


 


(A)          Institution Name:


 


Address:


 


Attention:


 


Telephone:


 


Facsimile:


 


(B)           Payment Instructions:


 


This Assignment shall be
governed by and construed in accordance with the laws of the State of Illinois.


 


2

















 


Please evidence your
receipt hereof and your consent to the sale, assignment, purchase and assumption
set forth herein by signing and returning counterparts hereof to the Assignor
and the Assignee.


 


	
  Percentage =       %

  	
  [ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Adjusted Percentage =       %

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
						



 


 


ACKNOWLEDGED AND CONSENTED
TO


 


this
                      
day of              


 


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


 


 


	
  By:

  	
   

  
	
  Title:

  	
   

  
			



 


 


ACKNOWLEDGED AND
CONSENTED TO


this
                      
day of              


 


STANDARD PARKING
CORPORATION


 


 


	
  By:

  	
   

  
	
  Title:

  	
   

  
			



 


 


3

















 


EXHIBIT D


 


FORM OF LOAN NOTICE


 


Date: 
                    ,
20         


 


To:          Bank of America, N.A., as
Administrative Agent


 


Re:                               Amended and Restated Credit Agreement dated as of July     ,
2008  (as amended, restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”) among
Standard Parking Corporation (the “Company”), various financial
institutions and Bank of America, N.A., as Administrative Agent and Collateral
Agent.  Capitalized terms used but
not otherwise defined herein have the meanings provided in the Credit
Agreement.


 


Ladies
and Gentlemen:


 


The
undersigned hereby requests (select one):


 


o  A Borrowing of Revolving Loans


 


o  A conversion or continuation of Revolving
Loans


 


1.             On
                              ,
20       (which is a Business Day).


 


2.             In the amount of
$                    .


 


3.             Comprised of
                            
(Type of Loan requested).


 


4.             For LIBOR Loans: with an Interest
Period of
                    
months.


 


The
Borrower hereby represents and warrants that (a) after giving effect to
any Borrowing of Revolving Loans, (i) the Revolving Outstandings shall not
exceed the Revolving Commitment, and (ii) the aggregate Outstanding Amount
of the Revolving Loans of any Lender plus such Lender’s Pro Rata Share
of the Outstanding Amount of all L/C Obligations plus such Lender’s Pro Rata
Share of the Outstanding Amount of all Swing Line Loans shall not exceed such
Lender’s Revolving Commitments and (b) all of the conditions contained in Section 12.2
of the Credit Agreement have been satisfied on and as of the date hereof, and
will continue to be satisfied on and as of the date of the Borrowing,
conversion or continuation requested hereby, before and after giving effect
thereto.


 

















 


	
   

  	
  STANDARD PARKING
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


2