Exhibit 10.1




 





 


Published CUSIP Number:                           


 


CREDIT AGREEMENT


 


Dated as of July 29,
2008


 


among


 


GT SOLAR INTERNATIONAL, INC.,


as the Borrower,


 


THE SUBSIDIARIES OF THE
BORROWER IDENTIFIED HEREIN,


as the Guarantors,


 


BANK OF AMERICA, N.A.,


as Administrative Agent, Swing Line Lender and L/C Issuer,


 


and


 


THE OTHER LENDERS PARTY
HERETO


 


Arranged By:


 


BANC OF AMERICA SECURITIES
LLC,


 


as Sole Lead Arranger and Book Manager




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I DEFINITIONS AND ACCOUNTING TERMS

  	
  1

  
	
  1.01

  	
  Defined Terms

  	
  1

  
	
  1.02

  	
  Other Interpretive Provisions

  	
  22

  
	
  1.03

  	
  Accounting Terms

  	
  23

  
	
  1.04

  	
  Rounding

  	
  23

  
	
  1.05

  	
  Determination of Delivery or Due Dates and Times of Day

  	
  23

  
	
  1.06

  	
  Letter of Credit Amounts

  	
  24

  
	
  ARTICLE
  II  THE COMMITMENTS AND CREDIT
  EXTENSIONS

  	
  24

  
	
  2.01

  	
  Revolving Loans

  	
  24

  
	
  2.02

  	
  Borrowings, Conversions and Continuations of Loans

  	
  25

  
	
  2.03

  	
  Letters of Credit

  	
  26

  
	
  2.04

  	
  Swing Line Loans

  	
  33

  
	
  2.05

  	
  Prepayments

  	
  36

  
	
  2.06

  	
  Termination or Reduction of Aggregate Revolving Commitments

  	
  37

  
	
  2.07

  	
  Repayment of Loans

  	
  38

  
	
  2.08

  	
  Interest

  	
  38

  
	
  2.09

  	
  Fees

  	
  38

  
	
  2.10

  	
  Computation of Interest and Fees

  	
  39

  
	
  2.11

  	
  Evidence of Debt

  	
  39

  
	
  2.12

  	
  Payments Generally; Administrative Agent’s Clawback

  	
  40

  
	
  2.13

  	
  Sharing of Payments by Lenders

  	
  41

  
	
  2.14

  	
  Extension of Maturity Date

  	
  42

  
	
  ARTICLE
  III  TAXES, YIELD PROTECTION AND
  ILLEGALITY

  	
  43

  
	
  3.01

  	
  Taxes

  	
  43

  
	
  3.02

  	
  Illegality

  	
  45

  
	
  3.03

  	
  Inability to Determine Rates

  	
  46

  
	
  3.04

  	
  Increased Costs

  	
  46

  
	
  3.05

  	
  Compensation for Losses

  	
  47

  
	
  3.06

  	
  Mitigation Obligations; Replacement of Lenders

  	
  48

  
	
  3.07

  	
  Survival

  	
  48

  
	
  ARTICLE
  IV GUARANTY

  	
  48

  
	
  4.01

  	
  The Guaranty

  	
  48

  
	
  4.02

  	
  Obligations Unconditional

  	
  49

  
	
  4.03

  	
  Reinstatement

  	
  50

  
	
  4.04

  	
  Certain Additional Waivers

  	
  50

  
	
  4.05

  	
  Remedies

  	
  50

  
	
  4.06

  	
  Rights of Contribution

  	
  50

  
	
  4.07

  	
  Guarantee of Payment; Continuing Guarantee

  	
  51

  
	
  ARTICLE
  V  CONDITIONS PRECEDENT TO CREDIT
  EXTENSIONS

  	
  51

  
	
  5.01

  	
  Conditions of Effectiveness

  	
  51

  
	
  5.02

  	
  Conditions to all Credit Extensions

  	
  53

  
	
  ARTICLE VI REPRESENTATIONS AND
  WARRANTIES

  	
  53

  
	
  6.01

  	
  Existence, Qualification and Power

  	
  53

  



 

















 


	
  6.02

  	
  Authorization; No Contravention

  	
  53

  
	
  6.03

  	
  Governmental Authorization; Other Consents

  	
  54

  
	
  6.04

  	
  Binding Effect

  	
  54

  
	
  6.05

  	
  Financial Statements; No Material Adverse Effect

  	
  54

  
	
  6.06

  	
  Litigation

  	
  55

  
	
  6.07

  	
  No Default

  	
  55

  
	
  6.08

  	
  Ownership of Property; Liens

  	
  55

  
	
  6.09

  	
  Environmental Compliance

  	
  55

  
	
  6.10

  	
  Insurance

  	
  56

  
	
  6.11

  	
  Taxes

  	
  56

  
	
  6.12

  	
  ERISA Compliance

  	
  56

  
	
  6.13

  	
  Subsidiaries

  	
  57

  
	
  6.14

  	
  Margin Regulations; Investment Company Act

  	
  57

  
	
  6.15

  	
  Disclosure

  	
  57

  
	
  6.16

  	
  Compliance with Laws

  	
  58

  
	
  6.17

  	
  Intellectual Property; Licenses, Etc.

  	
  58

  
	
  6.18

  	
  Solvency

  	
  58

  
	
  6.19

  	
  Perfection of Security Interests in the Collateral

  	
  58

  
	
  6.20

  	
  Business Locations; Taxpayer Identification Number

  	
  58

  
	
  6.21

  	
  Labor Matters

  	
  59

  
	
  ARTICLE
  VII AFFIRMATIVE COVENANTS

  	
  59

  
	
  7.01

  	
  Financial Statements

  	
  59

  
	
  7.02

  	
  Certificates; Other Information

  	
  60

  
	
  7.03

  	
  Notices

  	
  62

  
	
  7.04

  	
  Payment of Taxes

  	
  62

  
	
  7.05

  	
  Preservation of Existence, Etc.

  	
  62

  
	
  7.06

  	
  Maintenance of Properties

  	
  63

  
	
  7.07

  	
  Maintenance of Insurance

  	
  63

  
	
  7.08

  	
  Compliance with Laws

  	
  63

  
	
  7.09

  	
  Books and Records

  	
  63

  
	
  7.10

  	
  Inspection Rights

  	
  63

  
	
  7.11

  	
  Use of Proceeds

  	
  64

  
	
  7.12

  	
  Additional Subsidiaries

  	
  64

  
	
  7.13

  	
  Pledged Assets

  	
  64

  
	
  7.14

  	
  Post-Closing Matters

  	
  65

  
	
  ARTICLE
  VIII NEGATIVE COVENANTS

  	
  66

  
	
  8.01

  	
  Liens

  	
  66

  
	
  8.02

  	
  Investments

  	
  68

  
	
  8.03

  	
  Indebtedness

  	
  69

  
	
  8.04

  	
  Fundamental Changes

  	
  70

  
	
  8.05

  	
  Dispositions

  	
  70

  
	
  8.06

  	
  Restricted Payments

  	
  71

  
	
  8.07

  	
  Change in Nature of Business

  	
  71

  
	
  8.08

  	
  Transactions with Affiliates and Insiders

  	
  71

  
	
  8.09

  	
  Burdensome Agreements

  	
  72

  
	
  8.10

  	
  Use of Proceeds

  	
  72

  



 

















 


	
  8.11

  	
  Financial Covenants

  	
  72

  
	
  8.12

  	
  Subordinated Indebtedness

  	
  72

  
	
  8.13

  	
  Organization Documents; Fiscal Year; Legal Name, State of Formation and
  Form of Entity

  	
  73

  
	
  8.14

  	
  Ownership of Subsidiaries

  	
  73

  
	
  8.15

  	
  Sale Leasebacks

  	
  73

  
	
  ARTICLE
  IX EVENTS OF DEFAULT AND REMEDIES

  	
  73

  
	
  9.01

  	
  Events of Default

  	
  73

  
	
  9.02

  	
  Remedies Upon Event of Default

  	
  75

  
	
  9.03

  	
  Application of Funds

  	
  76

  
	
  ARTICLE
  X  ADMINISTRATIVE AGENT

  	
  77

  
	
  10.01

  	
  Appointment and Authority

  	
  77

  
	
  10.02

  	
  Rights as a Lender

  	
  77

  
	
  10.03

  	
  Exculpatory Provisions

  	
  77

  
	
  10.04

  	
  Reliance by Administrative Agent

  	
  78

  
	
  10.05

  	
  Delegation of Duties

  	
  79

  
	
  10.06

  	
  Resignation of Administrative Agent

  	
  79

  
	
  10.07

  	
  Non-Reliance on Administrative
  Agent and Other Lenders

  	
  80

  
	
  10.08

  	
  No Other Duties; Etc.

  	
  80

  
	
  10.09

  	
  Administrative Agent May File
  Proofs of Claim

  	
  80

  
	
  10.10

  	
  Collateral and Guaranty Matters

  	
  81

  
	
  10.10

  	
  Intercreditor Agreement

  	
  81

  
	
  ARTICLE
  XI MISCELLANEOUS

  	
  82

  
	
  11.01

  	
  Amendments, Etc.

  	
  82

  
	
  11.02

  	
  Notices; Effectiveness; Electronic
  Communications

  	
  83

  
	
  11.03

  	
  No Waiver; Cumulative Remedies;
  Enforcement

  	
  85

  
	
  11.04

  	
  Expenses; Indemnity; and Damage
  Waiver

  	
  85

  
	
  11.05

  	
  Payments Set Aside

  	
  87

  
	
  11.06

  	
  Successors and Assigns

  	
  87

  
	
  11.07

  	
  Treatment of Certain Information;
  Confidentiality

  	
  91

  
	
  11.08

  	
  Set-off

  	
  91

  
	
  11.09

  	
  Interest Rate Limitation

  	
  92

  
	
  11.10

  	
  Counterparts; Integration;
  Effectiveness

  	
  92

  
	
  11.11

  	
  Survival of Representations and
  Warranties

  	
  92

  
	
  11.12

  	
  Severability

  	
  93

  
	
  11.13

  	
  Replacement of Lenders

  	
  93

  
	
  11.14

  	
  Governing Law; Jurisdiction; Etc.

  	
  94

  
	
  11.15

  	
  Waiver of Right to Trial by Jury

  	
  94

  
	
  11.16

  	
  No Advisory or Fiduciary
  Responsibility

  	
  95

  
	
  11.17

  	
  Electronic Execution of Assignments
  and Certain Other Documents

  	
  95

  
	
  11.18

  	
  USA PATRIOT Act

  	
  95

  



 

















 


SCHEDULES


 


	
  1.01

  	
  Cash
  Charges

  
	
  2.01

  	
  Commitments
  and Applicable Percentages

  
	
  6.13

  	
  Subsidiaries

  
	
  6.17

  	
  IP
  Rights

  
	
  6.20(a)

  	
  Locations
  of Real Property

  
	
  6.20(b)

  	
  Locations
  of Tangible Personal Property

  
	
  6.20(c)

  	
  Location
  of Chief Executive Office, Taxpayer Identification Number, Etc.

  
	
  6.20(d)

  	
  Changes
  in Legal Name, State of Formation and Structure

  
	
  8.01

  	
  Liens
  Existing on the Closing Date

  
	
  8.02

  	
  Investments
  Existing on the Closing Date

  
	
  8.03

  	
  Indebtedness
  Existing on the Closing Date

  
	
  11.02

  	
  Certain
  Addresses for Notices

  



 


EXHIBITS


 


	
  1.01

  	
  Form of
  Borrowing Base Certificate

  
	
  2.02

  	
  Form of
  Loan Notice

  
	
  2.04

  	
  Form of
  Swing Line Loan Notice

  
	
  2.11(a)

  	
  Form of
  Note

  
	
  7.02

  	
  Form of
  Compliance Certificate

  
	
  7.12

  	
  Form of
  Joinder Agreement

  
	
  11.06-1

  	
  Form of
  Assignment and Assumption

  
	
  11.06-2

  	
  Form of
  Administrative Questionnaire

  



 

















 


CREDIT AGREEMENT


 


This
CREDIT AGREEMENT is entered into as of July 29, 2008 among GT SOLAR
INTERNATIONAL, INC., a Delaware corporation (the “Borrower”), the
Guarantors (defined herein), the Lenders (defined herein) and BANK OF AMERICA,
N.A., as Administrative Agent, Swing Line Lender and L/C Issuer.


 


The
Borrower has requested that the Lenders provide $90 million in credit
facilities for the purposes set forth herein, and the Lenders are willing to do
so on the terms and conditions set forth herein.


 


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


 


ARTICLE I


 


DEFINITIONS AND ACCOUNTING TERMS


 


1.01         Defined Terms.


 


As
used in this Agreement, the following terms shall have the meanings set forth
below:


 


“Acquisition”,
by any Person, means the acquisition by such Person, in a single transaction or
in a series of related transactions, of either (a) all or substantially
all of the property of, or a line of business, division or product line of,
another Person or (b) at least a majority of the Voting Stock of another
Person, in each case whether or not involving a merger or consolidation with
such other Person.


 


“Additional
Letter of Credit” has the meaning specified in Section 8.03.


 


“Administrative
Agent” means Bank of America in its capacity as administrative agent under
any of the Loan Documents, or any successor administrative agent.


 


“Administrative
Agent’s Office” means the Administrative Agent’s address and, as
appropriate, account as set forth on Schedule 11.02 or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.


 


“Administrative
Questionnaire” means an Administrative Questionnaire in substantially the
form of Exhibit 11.06-2 or any other form approved by the
Administrative Agent.


 


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


 


“Aggregate
Revolving Commitments” means the Revolving Commitments of all the
Lenders.  The initial amount of the
Aggregate Revolving Commitments in effect on the Closing Date is NINETY MILLION
DOLLARS ($90,000,000).


 


“Agreement”
means this Credit Agreement.


 


“Applicable
Percentage” means with respect to any Lender at any time, the percentage
(carried out to the ninth decimal place) of the Aggregate Revolving Commitments
represented by such Lender’s 


 

















 


Revolving
Commitment at such time; provided that if the commitment of each Lender to make
Revolving Loans and the obligation of the L/C Issuer to make L/C Credit
Extensions have been terminated pursuant to Section 9.02 or if the
Aggregate Revolving Commitments have expired, then the Applicable Percentage of
each Lender shall be determined based on the Applicable Percentage of such
Lender most recently in effect, giving effect to any subsequent
assignments.  The initial Applicable
Percentage of each Lender is set forth opposite the name of such Lender on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.


 


“Applicable
Period” means, as of any date of determination, the period of the four
fiscal quarters most recently ended for which the Borrower has delivered
financial statements pursuant to Section 7.01(a) or (b).


 


“Applicable
Rate” means (a) with respect to Eurodollar Rate Loans, 2.25% per
annum, (b) with respect to Base Rate Loans, 1.25% per annum and (c) with
respect to the Commitment Fee, 0.50% per annum.


 


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


 


“Arranger” means Banc of America Securities
LLC, in its capacity as sole lead arranger and book manager.


 


“Assignee
Group” means two or more Eligible Assignees that are Affiliates of one
another or two or more Approved Funds managed by the same investment advisor.


 


“Assignment
and Assumption” means an assignment and assumption entered into by a Lender
and an assignee (with the consent of any party whose consent is required by Section 11.06(b)),
and accepted by the Administrative Agent, in substantially the form of Exhibit 11.06-1
or any other form approved by the Administrative Agent.


 


“Attributable
Indebtedness” means, with respect to any Person on any date, (a) in
respect of any Capital Lease, the capitalized amount thereof that would appear
on a balance sheet of such Person prepared as of such date in accordance with
GAAP, (b) in respect of any Synthetic Lease, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP
if such lease were accounted for as a Capital Lease, (c) in respect of any
Securitization Transaction, the outstanding principal amount of such financing,
after taking into account reserve accounts and (d) in respect of any Sale and Leaseback Transaction, the present
value (discounted in accordance with GAAP at the debt rate implied in the
applicable lease) of the obligations of the lessee for rental payments during
the term of such lease).


 


“Audited
Financial Statements” means the audited consolidated balance sheet of the
Borrower and its Subsidiaries for the fiscal year ended March 31, 2008,
and the related consolidated statements of income or operations, shareholders’
equity and cash flows of the Borrower and its Subsidiaries for such fiscal
year, including the notes thereto.


 


“Availability”
means as of any date of determination the amount equal to (a) the
Aggregate Revolving Commitments in effect on such date less (b) the
Total Revolving Outstandings on such date.


 


“Availability
Period” means, with respect to the Revolving Commitments, the period from
and including the Closing Date to the earliest of (a) the Maturity Date, (b) the
date of termination of the Aggregate Revolving Commitments pursuant to Section 2.06,
and (c) the date of termination of the 


 


2

















 


commitment
of each Lender to make Loans and of the obligation of the L/C Issuer to make
L/C Credit Extensions pursuant to Section 9.02.


 


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


 


“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 a Loan that bears interest based on the Base
Rate.


 


“Borrower” has the meaning specified in the
introductory paragraph hereto.


 


“Borrower Materials” has the meaning
specified in Section 7.02.


 


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


 


“Borrowing
Base Certificate” means a certificate substantially in the form of Exhibit 1.01
executed by a Responsible Officer of the Borrower.


 


“Borrowing
Base” means, as of any date of determination, an amount equal to the sum of
(a) the product of Consolidated Adjusted EBITDA for the Applicable Period multiplied
by three (3) plus (b) Unrestricted Cash and Cash
Equivalents as of such date.  For
purposes of calculating the Borrowing Base prior to the date of delivery of the
Compliance Certificate for the first fiscal quarter ending after the Closing
Date, Consolidated Adjusted EBITDA shall be based on the period of four
consecutive fiscal quarters ending March 31, 2008.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state where the Administrative Agent’s Office is located and, if
such day relates to any Eurodollar Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the London
interbank eurodollar market.


 


“Businesses”
has the meaning specified in Section 6.09(a).


 


“Capital
Lease” means, as applied to any Person, any lease of any property by that
Person as lessee which, in accordance with GAAP, is required to be accounted
for as a capital lease on the balance sheet of that Person.


 


“Cash Collateralize” has the meaning
specified in Section 2.03(g).


 


“Cash
Equivalents” means, as at any date, (a) securities issued or directly
and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than twelve
months from the date of acquisition, (b) Dollar denominated time deposits
and certificates of deposit of (i) any Lender, (ii) any 


 


3

















 


domestic
commercial bank of recognized standing having capital and surplus in excess of
$500,000,000 or (iii) any bank whose short-term commercial paper rating
from S&P is at least A-1 or the equivalent thereof or from Moody’s is at
least P-1 or the equivalent thereof (any such bank being an “Approved Bank”),
in each case with maturities of not more than one year from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody’s and maturing within one year of the date of acquisition, (d) repurchase
agreements entered into by any Person with a bank or trust company (including
any of the Lenders) or recognized securities dealer having capital and surplus
in excess of $500,000,000 for direct obligations issued by or fully guaranteed
by the United States in which such Person shall have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of the
repurchase obligations and (e) investments in money market mutual funds
subject to Rule 2a-7 of the Investment Company Act of 1940.


 


“Cash
Payments” means, with respect to any transaction, the aggregate cash
payments (including any Indebtedness assumed and the good faith estimate by the
Borrower of the maximum amount of deferred purchase price obligations
(including any earn-out payments)) in connection with such transaction.


 


“Change
in Law” means the occurrence, after the date of this Agreement, of any of
the following: (a) the adoption or taking effect of any law, rule,
regulation or treaty, (b) any change in any law, rule, regulation or
treaty or, to the extent having the force of law, in the administration,
interpretation or application thereof by any Governmental Authority or (c) the
making or issuance of any request, guideline or directive having the force of
law by any Governmental Authority.


 


“Change
of Control” means an event or series of events by which:


 


(a)           any “person”
or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding (x) any employee benefit
plan of such person or its subsidiaries, and any person or entity acting in its
capacity as trustee, agent or other fiduciary or administrator of any such plan
and (y) GFI) becomes the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all Equity Interests
that such person or group has the right to acquire, whether such right is
exercisable immediately or only after the passage of time (such right, an “option
right”)), directly or indirectly, of thirty-five percent (35%) or more of the
Equity Interests of the Borrower entitled to vote for members of the board of
directors or equivalent governing body of the Borrower on a fully diluted basis
(and taking into account all such securities that such person or group has the
right to acquire pursuant to any option right); or


 


(b)           during
any period of 24 consecutive months, a majority of the members of the board of
directors or other equivalent governing body of the Borrower cease to be
composed of individuals (i) who were members of that board or equivalent
governing body on the first day of such period, (ii) whose election or
nomination to that board or equivalent governing body was approved by
individuals referred to in clause (i) above constituting at the time of
such election or nomination at least a majority of that board or equivalent
governing body or (iii) whose election or nomination to that board or
other equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election
or nomination at least a majority of that board or equivalent governing body
(excluding, in the case of both clause (ii) and clause (iii), any
individual whose initial nomination for, or assumption of office as, a member
of that board or equivalent governing body occurs as a result of an actual or
threatened 


 


4

















 


solicitation
of proxies or consents for the election or removal of one or more directors by
any person or group other than a solicitation for the election of one or more directors
by or on behalf of the board of directors).


 


“Closing
Date” means the date hereof.


 


“Collateral”
means a collective reference to all property with respect to which Liens in
favor of the Administrative Agent, for the benefit of itself and the Lenders,
are purported to be granted pursuant to and in accordance with the terms of the
Collateral Documents.


 


“Collateral
Documents” means a collective reference to the Security Agreement, the
Mortgages and other security documents as may be executed and delivered by the
Loan Parties pursuant to the terms of Section 7.13.


 


“Commitment”
means, as to each Lender, the Revolving Commitment of such Lender.


 


“Commitment Fee” has the meaning specified in
Section 2.09(a).


 


“Compliance Certificate” means a certificate
substantially in the form of Exhibit 7.02.


 


“Consolidated
Adjusted EBITDA” means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to (a) Consolidated
Net Income for such period plus (b) the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated
Interest Charges for such period, (ii) the provision for federal, state,
local and foreign income taxes payable for such period, (iii) the amount
of depreciation and amortization expense for such period, (iv) non-cash
charges for such period, (v) one-time, non-recurring cash charges for such
period incurred on or prior to the date thirty (30) days after the Closing Date
in connection with this Agreement or the initial public offering of the common
stock of the Borrower, (vi) one-time, non-recurring cash charges for such
period incurred on or prior to the Closing Date and described on Schedule
1.01, and (vii) one-time, non-recurring cash charges for such period
to the extent (A) incurred after the Closing Date and (B) approved by
the Administrative Agent in its sole discretion.


 


“Consolidated Capital Expenditures” means,
for any period, for the Borrower and its Subsidiaries on a consolidated basis,
all capital expenditures but excluding expenditures to the extent made with the
proceeds of any Involuntary Disposition used to purchase property that is
useful in the business of the Borrower and its Subsidiaries.


 


“Consolidated
Fixed Charge Coverage Ratio” means, as of any date of determination, the
ratio of (a) (i) Consolidated Adjusted EBITDA for the Applicable
Period less (ii) Consolidated Capital Expenditures for the
Applicable Period to (b) Consolidated Fixed Charges for the Applicable
Period.


 


“Consolidated
Fixed Charges” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, an amount equal to the sum of (a) the cash
portion of Consolidated Interest Charges for such period plus (b) Consolidated
Taxes for such period less (c) the portion of Consolidated Taxes
constituting tax on interest income.


 


“Consolidated
Funded Indebtedness” means Funded Indebtedness of the Borrower and its
Subsidiaries on a consolidated basis.


 


“Consolidated
Interest Charges” means, for any period, for the Borrower and its Subsidiaries
on a consolidated basis, without duplication, an amount equal to the sum of (i) all
interest, premium payments, 


 


5

















 


debt
discount, fees, charges and related expenses in connection with borrowed money
(including capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in accordance
with GAAP, plus (ii) the portion of rent expense with respect to
such period under Capital Leases that is treated as interest in accordance with
GAAP plus (iii) the implied interest component of Synthetic Leases
with respect to such period.


 


“Consolidated
Net Income” means, for any period, for the Borrower and its Subsidiaries on
a consolidated basis, the net income (excluding (a) extraordinary gains
and (b) net income attributable to any Majority Owned Joint Venture or any
Subsidiary of a Majority Owned Joint Venture unless such net income has been
distributed by way of a dividend in cash to the Borrower or any Subsidiary) for
that period.


 


“Consolidated
Net Leverage Ratio” means, as of any date of determination, the ratio of (a) the
sum of (i) Consolidated Funded Indebtedness as of such date less (ii) cash
and Cash Equivalents of the Borrower and its Subsidiaries (including cash and
Cash Equivalents securing letters of credit but excluding all other cash and
Cash Equivalents that do not constitute Unrestricted Cash) in excess of $20
million as of such date to  (b) Consolidated
Adjusted EBITDA for the Applicable Period.


 


“Consolidated Taxes” means, for any period,
for the Borrower and its Subsidiaries on a consolidated basis, the aggregate of
all income taxes, as determined in accordance with GAAP.


 


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


 


“Control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled”
have meanings correlative thereto. 
Without limiting the generality of the foregoing, solely for purposes of
Section 8.08, a Person shall be deemed to be Controlled by another
Person if such other Person possesses, directly or indirectly, power to vote
10% or more of the securities having ordinary voting power for the election of
directors, managing general partners or the equivalent.


 


“Credit
Extension” means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.


 


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


 


“Default”
means any event or condition that constitutes an Event of Default or that, with
the giving of any notice, the passage of time, or both, would be an Event of
Default.


 


“Default
Rate” means (a) when used with respect to Obligations other than
Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus
(ii) the Applicable Rate, if any, applicable to Base Rate Loans plus
(iii) 2% per annum; provided, however, that with respect to
a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the
interest rate (including any Applicable Rate) otherwise applicable to such Loan
plus 2% per annum, in each case to the fullest extent permitted by applicable
Laws and (b) when used with respect to Letter of Credit Fees, a rate equal
to the Applicable Rate plus 2% per annum.


 


6
















 


“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 unless such failure has been cured, (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 unless such
failure has been cured, or (c) has been deemed insolvent or become the
subject of a bankruptcy or insolvency proceeding.


 


“Disposition”
or “Dispose” means the sale, transfer, license, lease or other
disposition of any property by the Borrower or any Subsidiary, including any
Sale and Leaseback Transaction and any sale, assignment, transfer or other
disposal, with or without recourse, of any notes or accounts receivable or any
rights and claims associated therewith, but excluding (a) the disposition
of inventory in the ordinary course of business; (b) the disposition of
machinery and equipment no longer used or useful in the conduct of business of
the Borrower and its Subsidiaries in the ordinary course of business; (c) the
disposition of property to the Borrower or any Subsidiary; provided,
that if the transferor of such property is a Loan Party then the transferee
thereof must be a Loan Party; (d) the disposition of accounts receivable
in connection with the collection or compromise thereof; (e) licenses,
sublicenses, leases or subleases granted to others not interfering in any
material respect with the business of the Borrower and its Subsidiaries; (f) the
sale or disposition of Cash Equivalents for fair market value; and (g) any
Involuntary Disposition.


 


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


 


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


 


“Eligible Assignee” means any Person that
meets the requirements to be an assignee under Sections 11.06(b)(iii), (v) and
(vi)  (subject to
such consents, if any, as may be required under Section 11.06(b)(iii)).


 


“Environmental
Laws” means any and all federal, state, local, foreign and other applicable
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.


 


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


 


“Equity
Interests”  means, with respect to
any Person, all of the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock of (or
other ownership or profit interests in) such Person, all of the securities
convertible into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or options
for the purchase or acquisition from such Person of such shares (or such other
interests), and all of the other ownership or profit interests 


 


7

















 


in
such Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are outstanding on any date of determination.


 


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


 


“ERISA
Affiliate” means any trade or business (whether or not incorporated) under
common control with the Borrower within the meaning of Section 414(b) or
(c) of the Internal Revenue Code (and Sections 414(m) and (o) of
the Internal Revenue Code for purposes of provisions relating to Section 412
of the Internal Revenue Code).


 


“ERISA
Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a
withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to terminate,
the treatment of a Plan amendment as a termination under Section 4041 or
4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a
Pension Plan or Multiemployer Plan; (e) an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan or Multiemployer
Plan; or (f) the imposition of any liability under Title IV of ERISA,
other than for PBGC premiums due but not delinquent under Section 4007 of
ERISA, upon the Borrower or any ERISA Affiliate.


 


“Eurodollar
Base Rate” means, for any Interest Period with respect to a Eurodollar Rate
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
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period.  If such rate is
not available at such time for any reason, then the “Eurodollar Base Rate” for
such Interest Period shall be the rate per annum determined by the Administrative
Agent to be the rate at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate 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.


 


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


 


“Eurodollar
Rate Loan” means a Loan that bears interest at a rate based on the
Eurodollar Rate.


 


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


 


8

















 


The
Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.


 


“Event
of Default” has the meaning specified in Section 9.01.


 


“Excluded
Property” means, with respect to any Loan Party, (a) any IP Rights for
which a perfected Lien thereon is not effected either by filing of a Uniform
Commercial Code financing statement or by appropriate evidence of such Lien
being filed in either the United States Copyright Office or the United States
Patent and Trademark Office, (b) any personal property (other than
personal property described in clause (a) above) for which the attachment
or perfection of a Lien thereon is not governed by the Uniform Commercial Code,
(c) the Equity Interests of any direct Foreign Subsidiary of a Loan Party
to the extent not required to be pledged to secure the Obligations pursuant to Section 7.14(a),
(d) any property which, subject to the terms of Section 8.09,
is subject to a Lien of the type described in Section 8.01(i) pursuant
to documents which prohibit such Loan Party from granting any other Liens in
such property, (e) any owned or leased real property that is not Material
Real Property, (f) any owned or leased Material Real Property which is
located outside of the United States, (g) any general intangible,
instrument, software, license, permit, lease, contract, governmental approval
or franchise (but not the proceeds thereof), if the grant of a Lien in such
general intangible, instrument, software, license, permit, lease, contract,
governmental approval or franchise in the manner contemplated by the Loan
Documents is prohibited by the terms of such general intangible, instrument,
software, license, permit, lease, contract, governmental approval or franchise
and would result in the termination of such general intangible, instrument,
software, license, permit, lease, contract, governmental approval or franchise,
but only to the extent that any such prohibition is not rendered ineffective
pursuant to the Uniform Commercial Code or any other applicable law and (h) United
States intent-to-use trademark applications to the extent that, and solely
during the period in which, the grant of a security interest therein would
impair the validity or enforceability of such intent-to-use trademark
applications under applicable federal law.


 


“Excluded
Taxes” means, with respect to the Administrative Agent, any Lender, the L/C
Issuer or any other recipient of any payment to be made by or on account of any
obligation of the Borrower hereunder, (a) taxes imposed on or measured by
its overall net income (however denominated), and franchise taxes imposed on it
(in lieu of net income taxes), by the jurisdiction (or any political
subdivision thereof) under the Laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in which
its applicable Lending Office is located, (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which the Borrower is located, (c) any backup withholding
tax that is required by the Internal Revenue Code to be withheld from amounts
payable to a Lender that has failed to comply with clause (A) of Section 3.01(e)(ii),
and (d) in the case of a Foreign Lender (other than an assignee pursuant
to a request by the Borrower under Section 11.13), any United
States withholding tax that (i) is required to be imposed on amounts
payable to such Foreign Lender pursuant to the Laws in force at the time such
Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is
attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with clause (B) of Section 3.01(e)(ii),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such
withholding tax pursuant to Section 3.01(a)(i) or (ii).


 


“Existing
Letter of Credit” has the meaning specified in Section 8.03.


 


“Facilities”
has the meaning specified in Section 6.09(a).


 


“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 


 


9

















 


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
Letters” means, collectively, (a) the letter agreement dated June 26,
2008 among the Borrower, the Administrative Agent and the Arranger and (b) the
letter agreement dated June 26, 2008 among the Borrower, Bank of America,
Credit Suisse, Cayman Islands Branch, UBS Loan Finance LLC and the Arranger.


 


“First
Tier Foreign Subsidiary” means any Foreign Subsidiary that is directly
owned by any Loan Party.


 


“Foreign Lender” means any Lender that is
organized under the Laws of a jurisdiction other than that in which the
Borrower is resident for tax purposes (including such a Lender when acting in
the capacity of the L/C Issuer).  For purposes
of this definition, the United States, each State thereof and the District of
Columbia shall be deemed to constitute a single jurisdiction.


 


“Foreign
Subsidiary” means any Subsidiary that is not a Domestic Subsidiary.


 


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


 


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


 


“Funded
Indebtedness” means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:


 


(a)           all
obligations for borrowed money, whether current or long-term (including the
Obligations) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;


 


(b)           all
purchase money indebtedness;


 


(c)           the
principal portion of all obligations under conditional sale or other title retention
agreements relating to property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into in the ordinary course of business);


 


(d)           the
maximum amount available to be drawn under letters of credit (including standby
and commercial), bankers’ acceptances, bank guaranties, surety bonds and
similar instruments;


 


(e)           all
obligations in respect of the deferred purchase price of property or services
(other than (i) trade accounts payable in the ordinary course of business
and, in each case, not past due for more than 90 days (unless being contested
in good faith by appropriate proceedings and for which adequate reserves have
been provided in accordance with GAAP) and (ii) except to 


 


10

















 


the
extent required to be recorded as a liability under GAAP, earn-out obligations
relating to Acquisitions);


 


(f)            the
Attributable Indebtedness of Capital Leases, Sale and Leaseback Transactions,
Synthetic Leases and Securitization Transactions;


 


(g)           all
obligations to purchase, redeem, retire, defease or otherwise make any payment
prior to the Maturity Date in respect of any Equity Interests, valued, in the
case of a redeemable preferred interest, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends;


 


(h)           all Funded Indebtedness of others secured by (or
for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed;


 


(i)            all
Guarantees with respect to Funded Indebtedness of the types specified in
clauses (a) through (h) above of another Person; and


 


(j)            all
Funded Indebtedness of the types referred to in clauses (a) through (i) above
of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which such Person is a general
partner or joint venturer, except to the extent that Funded Indebtedness is
expressly made non-recourse to such Person.


 


“GAAP”
means generally accepted accounting principles in the United States set forth 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, consistently
applied and as in effect from time to time.


 


“GFI”
means, collectively, OCM/GFI Power Opportunities Fund II, L.P. and OCM/GFI
Power Opportunities Fund II (Cayman), L.P. and their Affiliates.


 


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


 


“Guarantee”
means, as to any Person, (a) any obligation, contingent or otherwise, of
such Person guaranteeing or having the economic effect of guaranteeing any
Indebtedness or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such
Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity or level
of income or cash flow of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation, or (iv) entered into
for the purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any
Lien on any assets of such Person securing any Indebtedness or other obligation
of any other Person, whether or not such 


 


11

















 


Indebtedness
or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien).  The amount of any Guarantee shall be deemed
to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith.  The term “Guarantee” as a verb
has a corresponding meaning.


 


“Guarantors”
means each Domestic Subsidiary identified as a “Guarantor” on the signature pages hereto
and each other Person that joins as a Guarantor pursuant to Section 7.12
or otherwise, together with their successors and permitted assigns.


 


“Guaranty”
means the Guaranty made by the Guarantors in favor of the Administrative Agent
and the Lenders pursuant to Article IV.


 


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


 


“Honor
Date” means, with respect to any payment by the L/C Issuer under a Letter
of Credit, the date of such payment or, if notice of such payment is not
provided to the Borrower by the L/C Issuer prior to 11:00 a.m. on the date
of such payment, the first Business Day for which notice of such is provided by
the L/C Issuer to the Borrower prior to 11:00 a.m.


 


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


 


(a)           all
Funded Indebtedness;


 


(b)           the
Swap Termination Value of any Swap Contract;


 


(c)           all
Guarantees with respect to outstanding Indebtedness of the types specified in
clauses (a) and (b) above of any other Person; and


 


(d)           all
Indebtedness of the types referred to in clauses (a) through (c) above
of any partnership or joint venture (other than a joint venture that is itself
a corporation or limited liability company) in which such Person is a general
partner or joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person.


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


“Indemnitees” has the meaning specified in Section 11.04(b).


 


“Information” has the meaning specified in Section 11.07.


 


“Intercreditor
Agreement” means the Intercreditor Agreement dated as of the Closing Date
among the Borrower, the Administrative Agent and the administrative agent under
the Letter of Credit Facility Agreement.


 


“Interest
Payment Date” means (a) as to any Eurodollar Rate Loan, the last day
of each Interest Period applicable to such Loan and the Maturity Date; provided,
however, that if any Interest Period for a 


 


12

















 


Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line
Loan), the first Business Day after the end of each March, June, September and
December and the Maturity Date.


 


“Interest
Period” means, as to each Eurodollar Rate Loan, the period commencing on
the date such Eurodollar Rate Loan is disbursed or converted to or continued as
a Eurodollar Rate Loan and ending on the date one, two, three or six months (or
(x) such other period of less than 6 months as to which the Administrative
Agent may consent and (y) if available to all the Lenders, twelve months)
thereafter, as selected by the Borrower in its Loan Notice; provided
that:


 


(i)            any
Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day
falls in another calendar month, in which case such Interest Period shall end
on the next preceding Business Day;


 


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


 


(iii)          no
Interest Period shall extend beyond the Maturity Date.


 


“Internal Revenue Code” means the Internal
Revenue Code of 1986.


 


“Investment”
means, as to any Person, any direct or indirect acquisition or investment by
such Person, whether by means of (a) the purchase or other acquisition of
Equity Interests of another Person, (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, or (c) an Acquisition.  For
purposes of covenant compliance, the amount of any Investment shall be the
amount actually invested, without adjustment for subsequent increases or
decreases in the value of such Investment, less any return of principal of such
Investment.


 


“Involuntary
Disposition” means any loss of, damage to or destruction of, or any
condemnation or other taking for public use of, any property of the Borrower or
any Subsidiary.


 


“IP
Rights” has the meaning specified in Section 6.17.


 


“IRS” means the United States Internal
Revenue Service.


 


“ISP”
means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law &
Practice, Inc. (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, the Letter of Credit
Application, and any other document, agreement and instrument entered into by
the L/C Issuer and the Borrower (or any Subsidiary) or in favor of the L/C
Issuer and relating to such Letter of Credit.


 


“Joinder
Agreement” means a joinder agreement substantially in the form of Exhibit 7.12
executed and delivered by a Domestic Subsidiary in accordance with the
provisions of Section 7.12.


 


13

















 


“Joint
Venture” means any Person in which the Borrower or any Subsidiary owns any
Equity Interests other than a Wholly Owned Subsidiary.


 


“Laws”
means, collectively, all international, foreign, federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case having the force of law.


 


“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 Applicable
Percentage.


 


“L/C
Borrowing” means an extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a 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
Issuer” means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.


 


“L/C
Obligations” means, as at any date of determination, the aggregate amount
available to be drawn under all outstanding 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, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  For all
purposes of this Agreement, if on any date of determination a 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 shall be
deemed to be “outstanding” in the amount so remaining available to be drawn.


 


“Lenders”
means each of the Persons identified as a “Lender” on the signature pages hereto,
each other Person that becomes a “Lender” in accordance with this Agreement and
their successors and assigns and, as the context requires, includes the Swing
Line Lender.


 


“Lending
Office” means, as to any Lender, the office or offices of such Lender
described as such in such Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the Borrower and the
Administrative Agent.


 


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


 


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


 


“Letter
of Credit Facility Agreement” means the Letter of Credit Facility Agreement
dated as of the Closing Date among the Borrower, the lenders identified therein
and Bank of America, as administrative agent.


 


“Letter
of Credit Fee” has the meaning specified in Section 2.03(i).


 


14

















 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or
other security interest or preferential arrangement in the nature of a security
interest of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having
substantially the same economic effect as any of the foregoing).


 


“Loan”
means an extension of credit by a Lender to the Borrower under Article II
in the form of a Revolving Loan or a Swing Line Loan.


 


“Loan
Documents” means this Agreement, each Note, each Issuer Document, each
Joinder Agreement, the Collateral Documents, the Intercreditor Agreement and
the Fee Letters.


 


“Loan
Notice” means a notice of (a) a Borrowing of Revolving Loans, (b) a
conversion of Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, in each case pursuant to Section 2.02(a),
which, if in writing, shall be substantially in the form of Exhibit 2.02.


 


“Loan
Parties” means, collectively, the Borrower and each Guarantor.


 


“Loan
Sublimit” means an amount equal to the lesser of (a) the Aggregate
Revolving Commitments and (b) $50 million. 
The Loan Sublimit is part of, and not in addition to, the Aggregate
Revolving Commitments.


 


“Loan
Year” means each period of twelve consecutive months commencing on July [    ]
of each year and ending on July [    ] of the
following year.  For purposes of
clarification, (x) the first Loan Year shall commence on the Closing Date
and end on the last day of the period of twelve consecutive months commencing
on the Closing Date and (y) each subsequent Loan Year shall be the period
of twelve consecutive months following the end of the preceding Loan Year.


 


“Majority
Owned Joint Venture” means any Joint Venture of which a majority of the
shares of Voting Stock is at the time beneficially owned, or the management of
which is otherwise controlled, directly, or indirectly through one or more
intermediaries, or both, by the Borrower and its Subsidiaries.


 


“Material
Adverse Effect” means (a) a material adverse change in, or a material
adverse effect upon, the operations, business, properties, liabilities (actual
or contingent) or financial condition of the Borrower and its Subsidiaries
taken as a whole; (b) a material impairment on the rights and remedies of
the Administrative Agent and the Lenders under the Loan Documents; (c) a
material impairment on the ability of any Loan Party to perform its obligations
under any Loan Document to which it is a party; or (d) a material adverse
effect upon the legality, validity, binding effect or enforceability against
any Loan Party of any Loan Document to which it is a party.


 


“Material
Indebtedness” means (a) any Subordinated Indebtedness and (b) any
other Indebtedness (other than Indebtedness arising under the Loan Documents
and Indebtedness arising under Swap Contracts) having an aggregate principal
amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than the Threshold Amount.


 


“Material
Real Property” means (a) any owned real property that has a fair
market value in excess of $5 million and (b) any leased real property (i) where
the applicable lease has a fair market value in excess of $5 million and (ii) that
is a manufacturing facility.


 


15

















 


“Maturity
Date” means July 29, 2011 or such later date as the Maturity Date may
be extended to pursuant to Section 2.14(a); provided, however,
that, in each case, if such date is not a Business Day, the Maturity Date shall
be the next preceding Business Day.


 


“Moody’s”
means Moody’s Investors Service, Inc. and any successor thereto.


 


“Mortgages”
means the mortgages, deeds of trust or deeds to secure debt that purport to
grant to the Administrative Agent a security interest in the fee interests
and/or leasehold interests of any Loan Party in any real property.


 


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


 


“Note”
has the meaning specified in Section 2.11(a).


 


“Obligations”
means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Loan Party arising under any Loan Document or otherwise with
respect to any Loan or Letter of Credit, whether direct or indirect (including
those acquired by assumption), absolute or contingent, due or to become due,
now existing or hereafter arising and including interest and fees that accrue
after the commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the debtor in
such proceeding, regardless of whether such interest and fees are allowed
claims in such proceeding. The foregoing shall also include (a) all
obligations under any Swap Contract between the Borrower or any Subsidiary and
any Lender or Affiliate of a Lender that is permitted to be incurred pursuant
to Section 8.03(d) and (b) all obligations under any
Treasury Management Agreement between the Borrower or any Subsidiary and any
Lender or Affiliate of a Lender.


 


“Organization
Documents” means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable
constitutive documents with respect to any non-U.S. jurisdiction); (b) with
respect to any limited liability company, the certificate or articles of
formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization
of such entity.


 


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


 


“Outstanding
Amount” means (a) 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 (b) 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 Borrower of
Unreimbursed Amounts.


 


16
















 


“Participant” has the meaning specified in Section 11.06(d).


 


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


 


“Pension
Plan” means any “employee pension benefit plan” (as such term is defined in
Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made
contributions at any time during the immediately preceding five plan years.


 


“Permitted
Acquisition” means an Investment consisting of an Acquisition by the
Borrower or any Subsidiary, provided that (a) the property acquired (or
the property of the Person acquired) in such Acquisition is used or useful in
the same or a similar line of business as the Borrower and its Subsidiaries
were engaged in on the Closing Date (or any reasonable extensions or expansions
thereof), (b) in the case of an Acquisition of the Equity Interests of
another Person, the board of directors (or other comparable governing body) of
such other Person shall have duly approved such Acquisition, (c) the
Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
Acquisition, the Loan Parties would be in compliance with the financial
covenants set forth in Section 8.11 on a Pro Forma Basis, (d) the
representations and warranties made by the Loan Parties in each Loan Document
shall be true and correct in all material respects at and as if made as of the
date of such Acquisition (after giving effect thereto), except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct in all material respects as of
such earlier date, (e) if such transaction involves the purchase of an
interest in a partnership between a Loan Party as a general partner and
entities unaffiliated with the Borrower as the other partners, such transaction
shall be effected by having such equity interest acquired by a corporate
holding company directly or indirectly wholly-owned by such Loan Party newly
formed for the sole purpose of effecting such transaction, (f) the aggregate
Cash Payments made by the Borrower and its Subsidiaries in connection with any
single Acquisition shall not exceed $5 million and (g) the aggregate Cash
Payments made by the Borrower and its Subsidiaries in any Loan Year in
connection with all Acquisitions shall not exceed an amount equal to (i) $15
million less (ii) the aggregate amount of Investments in all Joint
Ventures made by the Borrower and its Subsidiaries in such Loan Year less
(iii) the aggregate amount of Specified Investments made by the Borrower
and its Subsidiaries in such Loan Year.


 


“Permitted
Joint Venture” means an Investment in a Joint Venture by the Borrower or
any Subsidiary, provided that (a) such Joint Venture is in the same
or a similar line of business as the Borrower and its Subsidiaries were engaged
in on the Closing Date (or any reasonable extensions or expansions thereof), (b) the
Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to such
Investment, the Loan Parties would be in compliance with the financial
covenants set forth in Section 8.11 on a Pro Forma Basis, (c) the
representations and warranties made by the Loan Parties in each Loan Document
shall be true and correct in all material respects at and as if made as of the
date of such Investment (after giving effect thereto), except to the extent
that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct in all material respects as of
such earlier date, (d) if such transaction involves the purchase of an
interest in a partnership between a Loan Party as a general partner and
entities unaffiliated with the Borrower as the other partners, such transaction
shall be effected by having such equity interest acquired by a corporate
holding company directly or indirectly wholly-owned by such Loan Party newly
formed for the sole purpose of effecting such transaction, (e) the
aggregate Investments in any single Joint Venture made by the Borrower and its
Subsidiaries shall not exceed $5 million in any Loan Year and (f) the
aggregate amount of Investments in all Joint Ventures made by the Borrower and
its Subsidiaries in any Loan Year shall not exceed an amount equal to (i) $15
million less (ii) the aggregate Cash Payments made 


 


17

















 


by
the Borrower and its Subsidiaries in such Loan Year in connection with all Acquisitions
less (iii) the aggregate amount of Specified Investments made in
such Loan Year.


 


“Permitted
Liens” means, at any time, Liens in respect of property of the Borrower or
any Subsidiary permitted to exist at such time pursuant to the terms of Section 8.01.


 


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


 


“Plan”
means any “employee benefit plan” (as such term is defined in Section 3(3) of
ERISA) established by the Borrower or, with respect to any such plan that is
subject to Section 412 of the Internal Revenue Code or Title IV of ERISA,
any ERISA Affiliate.


 


“Platform”
has the meaning specified in Section 7.02.


 


“Pro
Forma Basis” means, with respect to any transaction, that for purposes of
calculating the financial covenants set forth in Section 8.11, such
transaction shall be deemed to have occurred as of the first day of the most
recent four fiscal quarter period preceding the date of such transaction for
which the Borrower was required to deliver financial statements pursuant to Section
7.01(a) or (b).  In connection
with the foregoing, (a) with respect to any Disposition or Involuntary
Disposition, (i) income statement and cash flow statement items (whether
positive or negative) attributable to the property disposed of shall be
excluded to the extent relating to any period occurring prior to the date of
such transaction and (ii) Indebtedness which is retired shall be excluded
and deemed to have been retired as of the first day of the applicable period
and (b) with respect to any Acquisition, (i) income statement items
attributable to the Person or property acquired shall be included to the extent
relating to any period applicable in such calculations to the extent (A) such
items are not otherwise included in such income statement items for the
Borrower and its Subsidiaries in accordance with GAAP or in accordance with any
defined terms set forth in Section 1.01 and (B) such items are
supported by financial statements or other information reasonably satisfactory
to the Administrative Agent and (ii) any Indebtedness incurred or assumed
by the Borrower or any Subsidiary (including the Person or property acquired)
in connection with such transaction and any Indebtedness of the Person or
property acquired which is not retired in connection with such transaction (A) shall
be deemed to have been incurred as of the first day of the applicable period
and (B) if such Indebtedness has a floating or formula rate, shall have an
implied rate of interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination.


 


“Pro
Forma Compliance Certificate” means a certificate of a Responsible Officer
of the Borrower containing reasonably detailed calculations of the financial
covenants set forth in Section 8.11 as of the end of the period of
the four fiscal quarters most recently ended for which the Borrower has
delivered financial statements pursuant to Section 7.01(a) or (b) after
giving effect to the applicable transaction on a Pro Forma Basis.


 


“Public
Lender” has the meaning specified in Section 7.02.


 


“Register” has the meaning specified in Section 11.06(c).


 


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


 


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


 


18

















 


“Request
for Credit Extension” means (a) with respect to a Borrowing,
conversion or continuation of Loans, a Loan Notice, (b) with respect to an L/C
Credit Extension, a Letter of Credit Application, and (c) with respect to
a Swing Line Loan, a Swing Line Loan Notice.


 


“Required
Lenders” means, at any time, Lenders holding in the aggregate more than 50%
of (a) the unfunded Commitments and the outstanding Loans, L/C Obligations
and participations therein or (b) if the Commitments have been terminated,
the outstanding Loans, L/C Obligations and participations therein.  The unfunded Commitments of, and the
outstanding Loans, L/C Obligations and participations therein held or deemed
held by, any Defaulting Lender shall be excluded for purposes of making a
determination of Required Lenders.


 


“Responsible
Officer” means the chief executive officer, president, chief financial
officer, treasurer, assistant treasurer or controller of a Loan Party and any other officer of the applicable Loan
Party so designated by any of the foregoing officers in a notice to the
Administrative Agent.  Any
document delivered hereunder that is signed by a Responsible Officer of a Loan
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.


 


“Restricted
Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of any Person,
or any payment (whether in cash, securities or other property), including any
sinking fund or similar deposit, on account of the purchase, redemption,
retirement, defeasance, acquisition, cancellation or termination of any such
Equity Interests or on account of any return of capital to such Person’s
stockholders, partners or members (or the equivalent Person thereof), or any
option, warrant or other right to acquire any such dividend or other
distribution or payment.


 


“Revolving
Commitment” means, as to each Lender, its obligation to (a) make
Revolving Loans to the Borrower pursuant to Section 2.01, (b) purchase
participations in L/C Obligations, and (c) purchase participations in
Swing Line Loans, in an aggregate principal amount at any one time outstanding
not to exceed the amount set forth opposite such Lender’s name on Schedule
2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto or in any documentation executed by such Lender pursuant
to Section 2.01(b), as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement.


 


“Revolving
Loan” has the meaning specified in Section 2.01(a).


 


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


 


“Sale
and Leaseback Transaction” means, with respect to the Borrower or any
Subsidiary, any arrangement, directly or indirectly, with any Person whereby
the Borrower or such Subsidiary shall sell or transfer any property used or useful
in its business, whether now owned or hereafter acquired, and thereafter rent
or lease such property or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred.


 


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


 


19

















 


“Securitization
Transaction” means, with respect to any Person, any financing transaction
or series of financing transactions (including factoring arrangements) pursuant
to which such Person or any Subsidiary of such Person may sell, convey or
otherwise transfer, or grant a security interest in, accounts, payments,
receivables, rights to future lease payments or residuals or similar rights to
payment to a special purpose subsidiary or affiliate of such Person.


 


“Security
Agreement” means the security and pledge agreement dated as of the Closing
Date executed in favor of the Administrative Agent by each of the Loan Parties.


 


“Solvent”
or “Solvency” means, with respect to any Person as of a particular date,
that on such date (a) such Person is generally able to pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the ordinary course of business, (b) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person’s ability to generally pay such debts and liabilities as they mature in
the ordinary course of business, (c) such Person is not engaged in a
business or a transaction, and is not about to engage in a business or a
transaction, for which such Person’s property would constitute unreasonably
small capital, (d) the fair value of the property of such Person is
greater than the total amount of liabilities, including contingent liabilities,
of such Person and (e) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured.  The amount of contingent
liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.


 


“Specified
Investments” has the meaning specified in Section 8.02.


 


“Subordinated
Indebtedness” means Indebtedness of the Borrower or any Subsidiary which by
its terms is subordinated to the Obligations in a manner and to an extent
reasonably acceptable to the Administrative Agent.


 


“Subsidiary”
of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which a majority of the shares of Voting Stock
is at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries, or
both, by such Person.  Unless otherwise
specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall
refer to a Subsidiary or Subsidiaries of the Borrower.  For purposes of the Loan Documents (other
than Section 7.01(a) and Section 7.01(b) of
this Agreement), Permitted Joint Ventures shall not constitute Subsidiaries of
the Borrower.


 


“Swap
Contract” means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all
transactions of any kind, and the related confirmations, which are subject to
the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a “Master
Agreement”), including any such obligations or liabilities under any Master
Agreement.


 


20

















 


“Swap
Termination Value” means, in respect of any one or more Swap Contracts,
after taking into account the effect of any legally enforceable netting
agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s) determined
in accordance therewith, such termination value(s) and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined
as the mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such Swap Contracts (which may include a
Lender or any Affiliate of a Lender).


 


“Swing
Line Lender” means Bank of America in its capacity as provider of Swing
Line Loans, or any successor swing line lender hereunder.


 


“Swing Line Loan” has the meaning specified
in Section 2.04(a).


 


“Swing
Line Loan Notice” means a notice of a Borrowing of Swing Line Loans
pursuant to Section 2.04(b), which, if in writing, shall be
substantially in the form of Exhibit 2.04.


 


“Swing
Line Sublimit” means an amount equal to the lesser of (a) $25 million
and (b) the Aggregate Revolving Commitments.  The Swing Line Sublimit is part of, and not
in addition to, the Aggregate Revolving Commitments.


 


“Synthetic
Lease” means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing arrangement
whereby the arrangement is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease or does not otherwise appear
on a balance sheet under GAAP.


 


“Taxes”
means all present or future taxes, levies, imposts, duties, deductions,
withholdings (including backup withholding), assessments, fees or other charges
imposed by any Governmental Authority, including any interest, additions to tax
or penalties applicable thereto.


 


“Threshold Amount” means $5 million.


 


“Total
Revolving Outstandings” means the aggregate Outstanding Amount of all
Revolving Loans, all Swing Line Loans and all L/C Obligations.


 


“Treasury
Management Agreement” means any agreement governing the provision of
treasury or cash management services, including deposit accounts, overnight
draft, credit or debit cards, funds transfer, automated clearinghouse, zero
balance accounts, returned check concentration, controlled disbursement,
lockbox, account reconciliation and reporting and trade finance services and
other cash management services.


 


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


 


“Unfunded
Pension Liability” means the excess of a Pension Plan’s benefit liabilities
under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plan’s assets, determined in accordance with the assumptions used for funding
that Pension Plan pursuant to Section 412 of the Internal Revenue Code for
the applicable plan year.


 


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


 


21

















 


“Unreimbursed Amount” has the meaning
specified in Section 2.03(c)(i).


 


“Unrestricted Cash and
Cash Equivalents” means, as of any date of determination, all cash and Cash
Equivalents of the Borrower and its Subsidiaries on such date that (a) do
not appear (or would not be required to appear) as “restricted” on a
consolidated balance sheet of the Borrower and its Subsidiaries, (b) are
not subject to a Lien in favor of any Person other than the Administrative
Agent or (c) are otherwise generally available for use by the Borrower and
its Subsidiaries.


 


“Voting
Stock” means, with respect to any Person, Equity Interests issued by such
Person the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even though the right so to vote has been suspended
by the happening of such a contingency.


 


“Wholly Owned Subsidiary” means any Person 100%
of whose Equity Interests are at the time owned by the Borrower directly or
indirectly through other Persons 100% of whose Equity Interests are at the time
owned, directly or indirectly, by the Borrower.


 


1.02         Other Interpretive
Provisions.


 


With
reference to this Agreement and each other Loan Document, unless otherwise
specified herein or in such other Loan Document:


 


(a)           The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.  Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms.  The words “include,”
“includes” and “including” shall be deemed to be followed by the
phrase “without limitation.”  The word “will”
shall be construed to have the same meaning and effect as the word “shall.”  Unless the context requires otherwise, (i) any
definition of or reference to any agreement, instrument or other document
(including any Organization Document) shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein or in any other Loan
Document), (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns, (iii) the words “herein,”
“hereof” and “hereunder,” and words of similar import when used
in any Loan Document, shall be construed to refer to such Loan Document in its
entirety and not to any particular provision thereof, (iv) all references
in a Loan Document to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
the Loan Document in which such references appear, (v) any reference to
any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law and any reference to any law or
regulation shall, unless otherwise specified, refer to such law or regulation
as amended, modified or supplemented from time to time, and (vi) the words
“asset” and “property” shall be construed to have the same
meaning and effect and to refer to any and all tangible and intangible assets
and properties, including cash, securities, accounts and contract rights.


 


(b)           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.”


 


22

















 


(c)           Section headings
herein and in the other Loan Documents are included for convenience of
reference only and shall not affect the interpretation of this Agreement or any
other Loan Document.


 


1.03         Accounting Terms.


 


(a)           Generally. 
Except as otherwise specifically prescribed herein, all accounting terms
not specifically or completely defined herein shall be construed in conformity
with, and all financial data (including financial ratios and other financial
calculations) required to be submitted pursuant to this Agreement shall be
prepared in conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in preparing the
Audited Financial Statements except for changes concurred in by the Borrower’s
independent certified public accountants.


 


(b)           Changes
in GAAP.  If at any time any change in GAAP would
affect the computation of any financial ratio or requirement set forth in any
Loan Document, and either the Borrower or the Required Lenders shall so
request, the Administrative Agent, the Lenders and the Borrower shall negotiate
in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided  that, until so amended, (i) such
ratio or requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting
forth a reconciliation between calculations of such ratio or requirement made
before and after giving effect to such change in GAAP.


 


(c)           Calculations. 
Notwithstanding the above, the parties hereto acknowledge and agree that
all calculations of the financial covenants in Section 8.11
(including for purposes of determining the Applicable Rate) shall be made on a
Pro Forma Basis with respect to any Acquisition, Disposition or Involuntary
Disposition occurring during the applicable period.


 


(d)           Clarification
Regarding Consolidation.  For purposes of clarification, in each
instance in this Agreement and the other Loan Documents where the term “consolidated”
or “consolidating” is used, such term refers the Borrower and its Subsidiaries
on a consolidated or consolidating basis, as applicable, and specifically
excludes Majority Owned Joint Ventures and Subsidiaries of Majority Owned Joint
Ventures.


 


1.04         Rounding.


 


Any
financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).


 


1.05         Determination of Delivery
or Due Dates and Times of Day.


 


If
any financial statement, notice, certificate or other document required
pursuant to any Loan Document becomes due or is deliverable on a day other than
a Business Day, then the delivery date or due date of such financial statement,
notice, certificate or other deliverable shall be extended to the next
succeeding Business Day.  Unless
otherwise specified, all references herein to times of day shall be references
to Eastern time (daylight or standard, as applicable).


 


23

















 


1.06         Letter of Credit Amounts.


 


Unless
otherwise specified herein, the amount of a Letter of Credit at any time shall
be deemed to be the stated amount of such Letter of Credit in effect at such
time; provided, however, that (a) with respect to any 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 shall be deemed to be the maximum
stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time
and (b) if the stated amount of any Letter of Credit has been permanently
reduced, then for purposes of this Section 1.06 the stated amount
of such Letter of Credit shall be reduced by the amount of such permanent
reduction.


 


ARTICLE II


 


THE COMMITMENTS AND CREDIT EXTENSIONS


 


2.01         Revolving Loans.


 


(a)           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 Borrower 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 Revolving Commitment; provided, however,
that after giving effect to any Borrowing of Revolving Loans, (i) the
Total Revolving Outstandings shall not exceed the lesser of (A) the
Aggregate Revolving Commitments and (B) the Borrowing Base, (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment and (iii) the aggregate Outstanding Amount of Loans shall not
exceed the Loan Sublimit.  Within the
limits of each Lender’s Revolving Commitment, and subject to the other terms
and conditions hereof, the Borrower may borrow under this Section 2.01,
prepay under Section 2.05, and reborrow under this Section 2.01.  Revolving Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein, provided, however, all
Borrowings made on the Closing Date shall be made as Base Rate Loans.


 


(b)           Increases
of the Aggregate Revolving Commitments.  The Borrower shall have the
right, upon at least five (5) Business Days’ prior written notice to the
Administrative Agent, to increase the Aggregate Revolving Commitments by up to
$100 million in the aggregate, which
increase shall not be exercisable more than three times by the Borrower and
shall be elected prior to the date that is six (6) months prior to
the Maturity Date, subject, however, in any such case, to satisfaction
of the following conditions precedent:


 


(A)          no
Default shall have occurred and be continuing on the date on which such
increase is to become effective;


 


(B)           such
increase shall be in a minimum amount of $10 million and in integral multiples
of $5 million in excess thereof;


 


(C)           such
requested increase shall only be effective upon receipt by the Administrative
Agent of (x) additional Revolving Commitments in a corresponding amount of
such requested increase from either existing Lenders and/or one or more other
Persons that qualify as Eligible Assignees (it being understood and agreed that
no existing Lender shall be required to provide an additional Revolving
Commitment) and (y) documentation from each Person providing an additional
Revolving Commitment evidencing its additional Revolving 


 


24

















 


Commitment
and its obligations under this Agreement in form and substance reasonably
acceptable to the Administrative Agent;


 


(D)          the
Administrative Agent shall have received all documents (including resolutions
of the board of directors of the Borrower and the Guarantors) it may reasonably
request relating to the corporate or other necessary authority for such
increase and the validity of such increase in the Aggregate Revolving
Commitments, and any other matters relevant thereto, all in form and substance
reasonably satisfactory to the Administrative Agent; and


 


(E)           if
any Revolving Loans are outstanding at the time of the increase in the
Aggregate Revolving Commitments, the Borrower shall, if applicable, prepay one
or more existing Revolving Loans (such prepayment to be subject to Section 3.05)
in an amount necessary such that after giving effect to the increase in the
Aggregate Revolving Commitments, each Lender will hold its pro rata share
(based on its Applicable Percentage of the increased Aggregate Revolving
Commitments) of outstanding Revolving Loans.


 


2.02         Borrowings, Conversions
and Continuations of Loans.


 


(a)           Each
Borrowing, each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower’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 11:00 a.m. (i) three
Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of, Eurodollar Rate Loans or of any conversion of Eurodollar Rate
Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing
of Base Rate Loans.  Each telephonic
notice by the Borrower pursuant to this Section 2.02(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
Borrower.  Each Borrowing of, conversion
to or continuation of Eurodollar Rate Loans shall be in a principal amount of
$1,000,000 or a whole multiple of $100,000 in excess thereof.  Except as provided in Sections 2.03(c)
and 2.04(c), each Borrowing of or conversion to Base Rate Loans shall be
in a principal amount of $1,000,000 or a whole multiple of $100,000 in excess
thereof.  Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is
requesting a Borrowing, a conversion of Loans from one Type to the other, or a
continuation of Eurodollar Rate 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 are to be converted, and (v) if applicable, the duration of the
Interest Period with respect thereto.  If
the Borrower fails to specify a Type of a Loan in a Loan Notice or if the
Borrower 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
Eurodollar Rate Loans.  If the Borrower
requests a Borrowing of, conversion to, or continuation of Eurodollar Rate
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.  Notwithstanding anything to the contrary
herein, a Swing Line Loan may not be converted to a Eurodollar Rate Loan.


 


(b)           Following
receipt of a Loan Notice, the Administrative Agent shall promptly notify each
Lender of the amount of its Applicable Percentage of the applicable Loans, and
if no timely notice of a conversion or continuation is provided by the
Borrower, 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 1:00 p.m. on the Business Day specified in the applicable Loan
Notice.  Upon satisfaction of the 


 


25

















 


applicable
conditions set forth in Section 5.02 (and, if such Borrowing is the
initial Credit Extension, Section 5.01), the Administrative Agent
shall make all funds so received available to the Borrower in like funds as
received by the Administrative Agent either by (i) crediting the account of the
Borrower 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 Borrower; 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 Borrower as provided above.


 


(c)           The
Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon
determination of such interest rate.  At
any time that Base Rate Loans are outstanding, the Administrative Agent shall
notify the Borrower 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.


 


(d)           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 ten Interest Periods in effect.


 


2.03         Letters of Credit.


 


(a)           The
Letter of Credit Commitment.


 


(i)            Subject
to the terms and conditions set forth herein, (A) the L/C Issuer agrees,
in reliance upon the agreements of the Lenders set forth in this Section 2.03,
(1) from time to time on any Business Day during the period from the
Closing Date until the Maturity Date, to issue Letters of Credit in Dollars for
the account of the Borrower or any Subsidiary, and to amend or extend Letters
of Credit previously issued by it, in accordance with subsection (b) below,
and (2) to honor drawings under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of
the Borrower or its Subsidiaries and any drawings thereunder; provided
that after giving effect to any L/C Credit Extension with respect to any Letter
of Credit, (x) the Total Revolving Outstandings shall not exceed the
lesser of (1) the Aggregate Revolving Commitments and (2) the Borrowing
Base, and (y) the aggregate Outstanding Amount of the Revolving Loans of
any Lender, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all L/C Obligations, plus such Lender’s Applicable Percentage
of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s
Revolving Commitment.  Each request by
the Borrower for the issuance or amendment of a Letter of Credit shall be
deemed to be a representation by the Borrower 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 Borrower’s ability
to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower 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.


 


(ii)           The L/C Issuer shall not issue any Letter of Credit if:


 


(A)          subject to Section 2.03(b)(iii), the expiry date of such
requested Letter of Credit would occur more than twelve months after the date
of issuance or last extension, unless the Required Lenders have approved such
expiry date; or


 


26
















 


(B)           the expiry date of such requested Letter of Credit would occur more
than twelve months after the Maturity Date, unless all the Lenders have
approved such expiry date.


 


(iii)          The L/C Issuer shall not be under any obligation to issue any Letter of
Credit if:


 


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


 


(B)           the issuance of such Letter of Credit would violate one or more
policies of the L/C Issuer applicable to borrowers generally;


 


(C)           except as otherwise agreed by the Administrative Agent and the L/C
Issuer, such Letter of Credit is in an initial stated amount less than
$100,000;


 


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


 


(E)           a default of any Lender’s obligations to fund under Section 2.03(c) exists
or any Lender is at such time a Defaulting Lender hereunder, unless the L/C
Issuer has entered into satisfactory arrangements with the Borrower or such
Lender to eliminate the L/C Issuer’s risk with respect to such Lender.


 


(iv)          The
L/C Issuer shall not amend any Letter of Credit if the L/C Issuer would not be
permitted at such time to issue such Letter of Credit in its amended form under
the terms hereof.


 


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


 


(vi)          The L/C Issuer shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and the documents
associated therewith, and the L/C Issuer shall have all of the benefits and
immunities (A) provided to the Administrative Agent in Article X
with respect to any acts taken or omissions suffered by the L/C Issuer in
connection with Letters of Credit issued by it or proposed to be issued by it
and Issuer Documents pertaining to such Letters of Credit as fully as if the
term “Administrative Agent” as used in Article X included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the L/C Issuer.


 


27

















 


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


 


(i)            Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of the Borrower delivered to the L/C Issuer (with a copy to the
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a Responsible Officer of the
Borrower.  Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two (2) Business Days (or such later
date and time as the Administrative Agent and the L/C Issuer 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 Letter of Credit Application shall specify in form and detail satisfactory
to the L/C Issuer: (A) the proposed issuance date of the requested Letter
of Credit (which shall be a Business Day); (B) the amount thereof; (C) the
expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the
documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; (G) the purpose and nature
of the requested Letter of Credit; and (H) such other matters as the L/C
Issuer may require.  In the case of a
request for an amendment of any outstanding Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C
Issuer (A) the Letter of Credit to be amended; (B) the proposed date
of amendment thereof (which shall be a Business Day); (C) the nature of
the proposed amendment; and (D) such other matters as the L/C Issuer may
require. Additionally, the Borrower shall furnish to the L/C Issuer 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 L/C Issuer or the Administrative Agent may reasonably
require.


 


(ii)           Promptly
after receipt of any Letter of Credit Application, the L/C Issuer will confirm
with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application
from the Borrower and, if not, the L/C Issuer will provide the Administrative
Agent with a copy thereof.  Unless the
L/C Issuer 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 Article V shall not be
satisfied, then, subject to the terms and conditions hereof, the L/C Issuer
shall, on the requested date, issue a Letter of Credit for the account of the
Borrower or the applicable Subsidiary or enter into the applicable amendment,
as the case may be, in each case in accordance with the L/C Issuer’s usual and
customary business practices. 
Immediately upon the issuance of each Letter of Credit, each Lender
shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the L/C Issuer a risk participation in such Letter of Credit in
an amount equal to the product of such Lender’s Applicable Percentage times
the amount of such Letter of Credit.


 


(iii)          If
the Borrower so requests in any applicable Letter of Credit Application, the L/C
Issuer 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 L/C Issuer to prevent any such extension at least once
in each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not later
than a day (the “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 L/C Issuer,
the Borrower shall not be required to make a specific request to the L/C Issuer
for any such extension.  Once an
Auto-Extension 


 


28

















 


Letter
of Credit has been issued, the Lenders shall be deemed to have authorized (but
may not require) the L/C Issuer to permit the extension of such Letter of
Credit at any time to an expiry date not later than the date twelve months
after the Maturity Date; provided, however, that the L/C Issuer
shall not permit any such extension if (A) the L/C Issuer 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 (ii) or (iii) of Section 2.03(a) or
otherwise), or (B) it has received notice (which may be by telephone or in
writing) on or before the day that is seven Business Days before the
Non-Extension Notice Date (1) from the Administrative Agent that the
Required Lenders have elected not to permit such extension or (2) from the
Administrative Agent, any Lender or the Borrower that one or more of the applicable
conditions specified in Section 5.02 is not then satisfied, and in
each case directing the L/C Issuer not to permit such extension.


 


(iv)          If
the Borrower so requests in any applicable Letter of Credit Application, the
L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of
Credit that permits the automatic reinstatement of all or a portion of the
stated amount thereof after any drawing thereunder (each, an “Auto-Reinstatement
Letter of Credit”).  Unless otherwise
directed by the L/C Issuer, the Borrower shall not be required to make a
specific request to the L/C Issuer to permit such reinstatement.  Once an Auto-Reinstatement Letter of Credit
has been issued, except as provided in the following sentence, the Lenders
shall be deemed to have authorized (but may not require) the L/C Issuer to
reinstate all or a portion of the stated amount thereof in accordance with the
provisions of such Letter of Credit. 
Notwithstanding the foregoing, if such Auto-Reinstatement Letter of
Credit permits the L/C Issuer to decline to reinstate all or any portion of the
stated amount thereof after a drawing thereunder by giving notice of such
non-reinstatement within a specified number of days after such drawing (the “Non-Reinstatement
Deadline”), the L/C Issuer shall not permit such reinstatement if it has
received a notice (which may be by telephone or in writing) on or before the
day that is seven Business Days before the Non-Reinstatement Deadline (A) from
the Administrative Agent that the Required Lenders have elected not to permit
such reinstatement or (B) from the Administrative Agent, any Lender or the
Borrower that one or more of the applicable conditions specified in Section 5.02
is not then satisfied (treating such reinstatement as an L/C Credit Extension
for purposes of this clause) and, in each case, directing the L/C Issuer not to
permit such reinstatement.


 


(v)           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 L/C Issuer will also deliver to the Borrower and the Administrative Agent a
true and complete copy of such Letter of Credit or amendment.


 


(c)           Drawings
and Reimbursements; Funding of Participations.


 


(i)            Upon
receipt from the beneficiary of any Letter of Credit of any notice of drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrower and the
Administrative Agent thereof.  Not later
than 11:00 a.m. on the Honor Date, the Borrower shall reimburse the L/C
Issuer through the Administrative Agent in an amount equal to the amount of
such drawing plus, if the Honor Date occurs after the date of such drawing,
interest on the amount of such drawing from the date of such drawing at a rate
equal to the Base Rate plus the Applicable Rate.  If the Borrower fails to so reimburse the L/C
Issuer 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 Applicable Percentage
thereof.  In such event, the Borrower
shall be deemed to have requested a Borrowing of Base Rate Loans to be
disbursed on the Honor Date in an amount equal to the 


 


29

















 


Unreimbursed
Amount, without regard to the minimum and multiples specified in Section 2.02
for the principal amount of Base Rate Loans, but subject to the conditions set
forth in Section 5.02 (other than the delivery of a Loan Notice)
and provided that, after giving effect to such Borrowing, the aggregate
Outstanding Amount of Loans shall not exceed the Loan Sublimit.  Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this Section 2.03(c)(i) may
be given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the conclusiveness
or binding effect of such notice.


 


(ii)           Each
Lender shall upon any notice pursuant to Section 2.03(c)(i) make
funds available to the Administrative Agent for the account of the L/C Issuer
at the Administrative Agent’s Office in an amount equal to its Applicable
Percentage 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 2.03(c)(iii), each Lender that
so makes funds available shall be deemed to have made a Base Rate Loan to the
Borrower in such amount.  The
Administrative Agent shall remit the funds so received to the L/C Issuer.


 


(iii)          With
respect to any Unreimbursed Amount that is not fully refinanced by a Borrowing
of Base Rate Loans because the conditions set forth in Section 5.02
cannot be satisfied or for any other reason (including if such Borrowing is not
made because after giving effect to such Borrowing, the aggregate Outstanding
Amount of Loans would exceed the Loan Sublimit), the Borrower shall be deemed
to have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
Default Rate.  In such event, each Lender’s
payment to the Administrative Agent for the account of the L/C Issuer pursuant
to Section 2.03(c)(ii) 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
2.03.


 


(iv)          Until
each Lender funds its Revolving Loan or L/C Advance pursuant to this Section 2.03(c) to
reimburse the L/C Issuer for any amount drawn under any Letter of Credit,
interest in respect of such Lender’s Applicable Percentage of such amount shall
be solely for the account of the L/C Issuer.


 


(v)           Each
Lender’s obligation to make Revolving Loans or L/C Advances to reimburse the
L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section 2.03(c),
shall be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
which such Lender may have against the L/C Issuer, the Borrower or any other
Person for any reason whatsoever; (B) the occurrence or continuance of a
Default, or (C) any other occurrence, event or condition, whether or not
similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.03(c) is
subject to the conditions set forth in Section 5.02 (other than
delivery by the Borrower of a Loan Notice). 
No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.


 


(vi)          If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to
be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii),
the L/C Issuer 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 


 


30

















 


date
on which such payment is immediately available to the L/C Issuer at a rate per
annum equal to the greater of the Federal Funds Rate and a rate determined by
the L/C Issuer in accordance with banking industry rules on interbank
compensation, plus any administrative, processing or similar fees customarily
charged by the L/C Issuer in connection with the foregoing.  If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Revolving Loan included in the relevant Borrowing or L/C Advance in
respect of the relevant L/C Borrowing, as the case may be.  A certificate of the L/C Issuer submitted to
any Lender (through the Administrative Agent) with respect to any amounts owing
under this clause (vi) shall be conclusive absent manifest error.


 


(d)           Repayment
of Participations.


 


                (i)            At any time after the L/C Issuer has made a
payment under any Letter of Credit and has received from any Lender such Lender’s
L/C Advance in respect of such payment in accordance with Section 2.03(c),
if the Administrative Agent receives for the account of the L/C Issuer any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from the Borrower or otherwise, including proceeds of cash
collateral applied thereto by the Administrative Agent), the Administrative
Agent will distribute to such Lender its Applicable Percentage thereof in the
same funds as those received by the Administrative Agent.


 


                (ii)           If any payment received by the Administrative Agent for the account of
the L/C Issuer pursuant to Section 2.03(c)(i) is required to be returned
under any of the circumstances described in Section 11.05
(including pursuant to any settlement entered into by the L/C Issuer in its
discretion), each Lender shall pay to the Administrative Agent for the account
of the L/C Issuer its Applicable Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. 
The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.


 


(e)           Obligations
Absolute.  The obligation of the Borrower to reimburse
the L/C Issuer for each drawing under each 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:


 


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


 


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


 


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


 


31

















 


(iv)          any
payment by the L/C Issuer 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 any payment made by the L/C Issuer under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy,
debtor-in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in connection with
any proceeding under any Debtor Relief Law; or


 


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


 


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


 


(f)            Role
of L/C Issuer.  Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer 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 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 L/C Issuer, the Administrative
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any Lender for (i) any
action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence, willful misconduct
or bad faith; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Issuer Document.  The Borrower hereby
assumes all risks of the acts or omissions of any beneficiary or transferee
with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower’s
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. 
None of the L/C Issuer, the Administrative Agent, any of their
respective Related Parties nor any correspondent, participant or assignee of
the L/C Issuer shall be liable or responsible for any of the matters described
in clauses (i) through (v) of Section 2.03(e); provided,
however, that anything in such clauses to the contrary notwithstanding,
the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower
which the Borrower proves were caused by the L/C Issuer’s willful misconduct,
gross negligence or bad faith or the L/C Issuer’s willful failure to pay under
any Letter of Credit after the presentation to it by the beneficiary of a sight
draft and certificate(s) strictly complying with the terms and conditions
of a Letter of Credit.  In furtherance
and not in limitation of the foregoing, the L/C Issuer may accept documents
that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and the
L/C Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a Letter
of Credit or the rights or benefits thereunder or proceeds thereof, in whole or
in part, which may prove to be invalid or ineffective for any reason.


 


(g)           Cash
Collateral.  Upon the request of the Administrative Agent,
(i) if the L/C Issuer has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing,
or (ii) if, as of the Maturity Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C 


 


32

















 


Obligations.  Sections 2.05 and 9.02(c) set
forth certain additional requirements to deliver Cash Collateral
hereunder.  For purposes of this Section 2.03,
Section 2.05 and Section 9.02(c), “Cash
Collateralize” means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances pursuant
to documentation in form and substance reasonably satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented
to by the Lenders).  Derivatives of such
term have corresponding meanings.  The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer 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 deposit accounts at Bank of America and, at the direction of the
Borrower, invested in (x) securities issued or directly and fully
guaranteed or insured by the United States or any agency or instrumentality
thereof (provided that the full faith and credit of the United States is
pledged in support thereof) having maturities of not more than twelve months
from the date of acquisition and (y) money market mutual funds subject to Rule 2a-7
of the Investment Company Act of 1940.


 


(h)           Applicability
of ISP.  Unless otherwise expressly agreed by the L/C
Issuer and the Borrower when a Letter of Credit is issued, the rules of
the ISP shall apply to each standby Letter of Credit.


 


(i)            Letter
of Credit Fees.  The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with its Applicable
Percentage a Letter of Credit fee (the “Letter of Credit Fee”) for each
Letter of Credit equal to the Applicable Rate for Eurodollar Rate Loans times
the daily amount available to be drawn under such Letter of Credit.  For purposes of computing the daily amount
available to be drawn under any Letter of Credit, the amount of such Letter of
Credit shall be determined in accordance with Section 1.06.  Letter of Credit Fees shall be (i) due
and payable on the first Business Day after the end of each March, June, September and
December, commencing with the first such date to occur after the issuance of
such Letter of Credit, on the Maturity Date and thereafter on demand and (ii) computed
on a quarterly basis in arrears.  If
there is any change in the Applicable Rate during any quarter, the daily amount
available to be drawn under each Letter of Credit shall be computed and
multiplied by the Applicable Rate separately for each period during such
quarter that such Applicable Rate was in effect.  Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders,  while
any Event of Default exists, all Letter of Credit Fees shall, commencing on the
date that a Responsible Officer of the Borrower has knowledge of such Event of
Default, accrue at the Default Rate.


 


(j)            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.


 


(k)           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 Borrower shall be obligated to
reimburse the L/C Issuer hereunder for any and all drawings under such Letter
of Credit.  The Borrower hereby
acknowledges that the issuance of Letters of Credit for the account of
Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s
business derives substantial benefits from the businesses of such Subsidiaries.


 


2.04         Swing Line Loans.


 


(a)           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 2.04, to make loans (each
such loan, a “Swing Line Loan”) to the Borrower 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 


 


33

















 


the
amount of the Swing Line Sublimit, notwithstanding the fact that such Swing
Line Loans, when aggregated with the Applicable Percentage of the Outstanding
Amount of Revolving Loans and L/C Obligations of the Lender acting as Swing
Line Lender, may exceed the amount of such Lender’s Revolving Commitment; provided,
however, that after giving effect to any Swing Line Loan, (i) the Total
Revolving Outstandings shall not exceed the lesser of (A) Aggregate
Revolving Commitments and (B) the Borrowing Base, (ii) the aggregate
Outstanding Amount of the Revolving Loans of any Lender, plus such
Lender’s Applicable Percentage of the Outstanding Amount of all L/C
Obligations, plus such Lender’s Applicable Percentage of the Outstanding
Amount of all Swing Line Loans shall not exceed such Lender’s Revolving
Commitment and (iii) the aggregate Outstanding Amount of Loans shall not
exceed the Loan Sublimit, and provided, further, that the
Borrower 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
Borrower may borrow under this Section 2.04, prepay under Section 2.05,
and reborrow under this Section 2.04.  Each Swing Line Loan shall bear interest only
at a rate based on the Base Rate. 
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 Applicable Percentage times the
amount of such Swing Line Loan.


 


(b)           Borrowing
Procedures.  Each Borrowing of Swing Line Loans shall be
made upon the Borrower’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 $100,000 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
Borrower.  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 first
proviso to the first sentence of Section 2.04(a), or (B) that
one or more of the applicable conditions specified in Article V 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 Borrower.


 


(c)           Refinancing
of Swing Line Loans.


 


(i)            The
Swing Line Lender at any time in its sole and absolute discretion may request,
on behalf of the Borrower (which hereby irrevocably 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 Applicable Percentage 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 2.02,
without regard to the minimum and multiples specified therein for the principal
amount of Base Rate Loans, but subject to the conditions set forth in Section 5.02
(other than the delivery of a Loan Notice) and provided that, after giving
effect to such Borrowing, the Total Revolving Outstandings shall not exceed the
lesser of (A) the Aggregate Revolving Commitments and (B) the
Borrowing Base.  


 


34

















 


The
Swing Line Lender shall furnish the Borrower 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
Applicable Percentage 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 2.04(c)(ii),
each Lender that so makes funds available shall be deemed to have made a Base
Rate Loan to the Borrower in such amount. 
The Administrative Agent shall remit the funds so received to the Swing
Line Lender.


 


                (ii)           If for any reason any Swing Line Loan cannot be refinanced by such a
Borrowing of Revolving Loans in accordance with Section 2.04(c)(i),
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 2.04(c)(i) shall be deemed payment
in respect of such participation.


 


                (iii)          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 2.04(c) by
the time specified in Section 2.04(c)(i), 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, plus any administrative, processing or similar fees customarily
charged by the Swing Line Lender in connection with the foregoing.  If such Lender pays such amount (with
interest and fees as aforesaid), the amount so paid shall constitute such
Lender’s Revolving Loan included in the relevant Borrowing or funded
participation in the relevant Swing Line Loan, as the case may be.  A certificate of the Swing Line Lender
submitted to any Lender (through the Administrative Agent) with respect to any
amounts owing under this clause (iii) shall be conclusive absent manifest
error.


 


                (iv)          Each Lender’s obligation to make Revolving Loans or to purchase and
fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (A) any setoff, counterclaim, recoupment, defense or other right
that such Lender may have against the Swing Line Lender, the Borrower or any
other Person for any reason whatsoever, (B) the occurrence or continuance
of a Default, or (C) any other occurrence, event or condition, whether or
not similar to any of the foregoing; provided, however, that each
Lender’s obligation to make Revolving Loans pursuant to this Section 2.04(c) is
subject to the conditions set forth in Section 5.02.  No such funding of risk participations shall
relieve or otherwise impair the obligation of the Borrower to repay Swing Line
Loans, together with interest as provided herein.


 


(d)           Repayment
of Participations.


 


(i)            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
Applicable Percentage thereof in the same funds as those received by the Swing
Line Lender.


 


35
















 


                (ii)           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 11.05
(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 Applicable
Percentage 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.


 


(e)           Interest
for Account of Swing Line Lender.  The Swing Line Lender shall be
responsible for invoicing the Borrower 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 2.04 to refinance such Lender’s Applicable Percentage of
any Swing Line Loan, interest in respect of such Applicable Percentage shall be
solely for the account of the Swing Line Lender.


 


(f)            Payments
Directly to Swing Line Lender.  The Borrower shall make all payments of
principal and interest in respect of the Swing Line Loans directly to the Swing
Line Lender.


 


2.05         Prepayments.


 


(a)           Voluntary
Prepayments of Loans.


 


(i)            Revolving
Loans.  The Borrower may, upon notice from the
Borrower to the Administrative Agent, at any time or from time to time
voluntarily prepay Revolving Loans in whole or in part without premium or
penalty; provided that (A) such notice must be received by the
Administrative Agent not later than 11:00 a.m. (1) three Business
Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on
the date of prepayment of Base Rate Loans; (B) any such prepayment of
Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $100,000  in excess thereof
(or, if less, the entire principal amount thereof then outstanding); and (C) any
prepayment of Base Rate Loans shall be in a principal amount of $1,000,000 or a
whole multiple of $100,000 in excess thereof (or, if less, the entire principal
amount thereof then outstanding).  Each
such notice shall specify the date and amount of such prepayment and the Type(s) of
Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. 
The Administrative Agent will promptly notify each Lender of its receipt
of each such notice, and of the amount of such Lender’s Applicable Percentage
of such prepayment.  If such notice is
given by the Borrower, the Borrower shall make such prepayment and the payment
amount specified in such notice shall be due and payable on the date specified
therein.  Any prepayment of a Eurodollar
Rate Loan shall be accompanied by all accrued interest on the amount prepaid,
together with any additional amounts required pursuant to Section 3.05.  Each such prepayment shall be applied to the
Loans of the Lenders in accordance with their respective Applicable
Percentages.


 


(ii)           Swing
Line Loans.  The Borrower may, upon notice to the Swing
Line Lender (with a copy to the Administrative Agent), at any time or from time
to time, voluntarily prepay Swing Line Loans in whole or in part without
premium or penalty; provided that (i) such notice must be received
by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m.
on the date of the prepayment, and (ii) any such prepayment shall be in a
minimum principal amount of $100,000 or a whole multiple of $100,000 in excess
thereof (or, if less, the entire principal thereof then outstanding).  Each such notice shall specify the date and
amount of such prepayment.  If such
notice is given by the Borrower, the Borrower shall make such prepayment 


 


36

















 


and
the payment amount specified in such notice shall be due and payable on the
date specified therein.


 


(b)           Mandatory
Prepayments of Loans.


 


(i)            Revolving
Commitments.


 


(A)          If for any reason the Total Revolving Outstandings at any time exceed
the lesser of (x) the Aggregate Revolving Commitments and (y) the
Borrowing Base, the Borrower shall immediately prepay Revolving Loans and/or
Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate
amount equal to such excess; provided, however, that the Borrower
shall not be required to Cash Collateralize the L/C Obligations pursuant to
this Section 2.05(b)(i) unless after the prepayment in full of the Revolving Loans and Swing
Line Loans the Total Revolving Outstandings exceed the Aggregate Revolving
Commitments then in effect.


 


(B)           If for any reason the aggregate Outstanding Amount of Loans at any time
exceeds the Loan Sublimit then in effect, the Borrower shall immediately prepay
Revolving Loans and/or Swing Line Loans in an aggregate amount equal to such
excess.


 


(ii)           Application
of Mandatory Prepayments.


 


(A)          All amounts required to be paid pursuant to Section 2.05(b)(i) shall be applied first ratably to the outstanding L/C Borrowings and
the outstanding Swing Line Loans, second to the outstanding Revolving
Loans, and third to Cash Collateralize the remaining L/C Obligations.


 


(B)           All amounts required to be paid pursuant to Section 2.05(b)(ii) shall be applied first to the outstanding Swing Line Loans and second
to the outstanding Revolving Loans.


 


Within
the parameters of the applications set forth above, prepayments shall be
applied first to Base Rate Loans and then to Eurodollar Rate Loans in direct
order of Interest Period maturities.  All
prepayments under this Section 2.05(b) shall be subject to Section 3.05,
but otherwise without premium or penalty, shall not result in a mandatory
reduction of the Aggregate Revolving Commitments and, in the case of a
prepayment of Eurodollar Rate Loans, shall be accompanied by interest on the
principal amount prepaid through the date of prepayment.


 


2.06         Termination or Reduction
of Aggregate Revolving Commitments.


 


The
Borrower may, upon notice to the Administrative Agent, terminate the Aggregate
Revolving Commitments, or from time to time permanently reduce the Aggregate
Revolving Commitments to an amount not less than the Outstanding Amount of
Revolving Loans, Swing Line Loans and L/C Obligations; provided that (i) any
such notice shall be received by the Administrative Agent not later than 12:00
noon five (5) Business Days prior to the date of termination or reduction,
(ii) any such partial reduction shall be in an aggregate amount of
$5,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) if,
after giving effect to any reduction of the Aggregate Revolving Commitments,
the Loan Sublimit or the Swing Line Sublimit exceeds the amount of the
Aggregate Revolving Commitments, such sublimit shall be automatically reduced
by the amount of such excess.  The
Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of 


 


37

















 


the
Aggregate Revolving Commitments.  Any
reduction of the Aggregate Revolving Commitments shall be applied to the
Revolving Commitment of each Lender according to its Applicable Percentage.  All fees accrued with respect thereto until
the effective date of any termination of the Aggregate Revolving Commitments
shall be paid on the effective date of such termination.


 


2.07         Repayment of Loans.


 


(a)           Revolving
Loans.  The Borrower shall repay to the Lenders on
the Maturity Date the aggregate principal amount of all Revolving Loans
outstanding on such date.


 


(b)           Swing
Line Loans.  The Borrower shall repay each Swing Line Loan
on the Maturity Date.


 


2.08         Interest.


 


(a)           Subject
to the provisions of subsection (b) below, (i) each Eurodollar Rate
Loan shall bear interest on the outstanding principal amount thereof for each
Interest Period at a rate per annum equal to the sum of the Eurodollar Rate for
such Interest Period plus the Applicable Rate; (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus
the Applicable Rate; and (iii) each Swing Line Loan shall bear interest on
the outstanding principal amount thereof from the applicable borrowing date at
a rate per annum equal to the Base Rate plus the Applicable Rate.


 


(b)           (i)            If any amount of principal of any Loan is not
paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter
bear interest at a fluctuating interest rate per annum at all times equal to
the Default Rate to the fullest extent permitted by applicable Laws.


 


(ii)           If any amount (other than principal of any
Loan) payable by the Borrower under any Loan Document is not paid when due
(after giving effect to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required Lenders,
such amount shall thereafter bear interest at a fluctuating interest rate per
annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.


 


(iii)          Upon the request of the Required Lenders,
while any Event of Default exists, the Borrower shall, commencing on the date
that a Responsible Officer of the Borrower has knowledge of such Event of
Default, pay interest on the principal amount of all outstanding Obligations
hereunder at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.


 


(iv)          Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand.


 


(c)           Interest
on each Loan shall be due and payable in arrears on each Interest Payment Date
applicable thereto and at such other times as may be specified herein.  Interest hereunder shall be due and payable
in accordance with the terms hereof before and after judgment, and before and after
the commencement of any proceeding under any Debtor Relief Law.


 


2.09         Fees.


 


In
addition to certain fees described in subsections (i) and (j) of Section 2.03:


 


38

















 


(a)           Commitment
Fee.  The Borrower shall pay to the Administrative
Agent, for the account of each Lender in accordance with its Applicable
Percentage, a commitment fee (the “Commitment Fee”) equal to the product
of (i) the Applicable Rate times (ii) the actual daily amount
by which the Aggregate Revolving Commitments exceed the sum of (y) the
Outstanding Amount of Revolving Loans and (z) the Outstanding Amount of
L/C Obligations. The Commitment Fee shall accrue at all times during the
Availability Period, including at any time during which one or more of the
conditions in Article V is not met, and shall be due and payable
quarterly in arrears on the first Business Day after the end of each March,
June, September and December, commencing with the first such date to occur
after the Closing Date, and on the last day of the Availability Period. The
Commitment Fee shall be calculated quarterly in arrears, and if there is any
change in the Applicable Rate during any quarter, the actual daily amount shall
be computed and multiplied by the Applicable Rate separately for each period
during such quarter that such Applicable Rate was in effect.  For purposes of clarification, Swing Line
Loans shall not be considered outstanding for purposes of determining the
unused portion of the Aggregate Revolving Commitments.


 


(b)           Fee
Letters.  The Borrower shall pay the fees in the
amounts, at the times and to the parties specified in the Fee Letters.  Such fees shall be fully earned when paid and
shall be non-refundable for any reason whatsoever.


 


2.10         Computation of Interest
and Fees.


 


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, subject to Section 2.12(a), 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.


 


2.11         Evidence of Debt.


 


(a)           The Credit Extensions made by each Lender shall be evidenced by one or
more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. 
The accounts or records maintained by the Administrative Agent and each
Lender shall be conclusive absent manifest error of the amount of the Credit
Extensions made by the Lenders to the Borrower and the interest and payments
thereon.  Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the
Obligations.  In the event of any
conflict between the accounts and records maintained by any Lender and the
accounts and records of the Administrative Agent in respect of such matters,
the accounts and records of the Administrative Agent shall control in the
absence of manifest error.  Upon the
request of any Lender made through the Administrative Agent, the Borrower shall
execute and deliver to such Lender (through the Administrative Agent) a
promissory note, which shall evidence such Lender’s Loans in addition to such
accounts or records.  Each such
promissory note shall be in the form of Exhibit 2.11(a) (a “Note”).  Each Lender may attach schedules to its Note
and endorse thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.


 


39

















 


(b)           In addition to the accounts and records referred to in subsection (a),
each Lender and the Administrative Agent shall maintain in accordance with its
usual practice accounts or records evidencing the purchases and sales by such
Lender of participations in Letters of Credit and Swing Line Loans.  In the event of any conflict between the
accounts and records maintained by the Administrative Agent and the accounts
and records of any Lender in respect of such matters, the accounts and records
of the Administrative Agent shall control in the absence of manifest error.


 


2.12         Payments Generally;
Administrative Agent’s Clawback.


 


(a)           General.  All
payments to be made by the Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff.  Except as otherwise expressly provided
herein, all payments by the Borrower hereunder shall be made to the Administrative
Agent, for the account of the respective Lenders to which such payment is owed,
at the Administrative Agent’s Office in Dollars and in immediately available
funds not later than 2:00 p.m. on the date specified herein.  The Administrative Agent will promptly
distribute to each Lender its Applicable Percentage (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender’s Lending Office.  All
payments received by the Administrative Agent after 2:00 p.m. shall be
deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue.  If any
payment to be made by the Borrower shall come due on a day other than a
Business Day, payment shall be made on the next following Business Day, and
such extension of time shall be reflected on computing interest or fees, as the
case may be.


 


(b)           (i) 
Funding by Lenders; Presumption by Administrative Agent.  Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Borrowing of
Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans,
prior to 12:00 noon on the date of such Borrowing) that such Lender will not
make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with Section 2.02 (or,
in the case of a Borrowing of Base Rate Loans, that such Lender has made such
share available in accordance with and at the time required by Section 2.02)
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount.  In such event, if
a Lender has not in fact made its share of the applicable Borrowing available
to the Administrative Agent, then the applicable Lender and the Borrower
severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount in immediately available funds with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at (A) in
the case of a payment to be made by such Lender, the greater of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation, plus any administrative,
processing or similar fees customarily charged by the Administrative Agent in
connection with the foregoing, and (B) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans.  If the Borrower and such Lender shall pay
such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the
amount of such interest paid by the Borrower for such period.  If such Lender pays its share of the
applicable Borrowing to the Administrative Agent, then the amount so paid shall
constitute such Lender’s Loan included in such Borrowing.  Any payment by the Borrower shall be without
prejudice to any claim the Borrower may have against a Lender that shall have
failed to make such payment to the Administrative Agent.


 


(ii)           Payments by Borrower; Presumptions by
Administrative Agent.  Unless the Administrative Agent shall have
received notice from the Borrower prior to the time at which any 


 


40

















 


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


 


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


 


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


 


(d)           Obligations
of Lenders Several.  The obligations of the Lenders hereunder to
make Loans, to fund participations in Letters of Credit and Swing Line Loans and
to make payments pursuant to Section 11.04(c) are several and not joint.  The failure of any Lender to make any Loan,
to fund any such participation or to make any payment under Section 11.04(c) on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender to so
make its Loan, to purchase its participation or to make its payment under Section 11.04(c).


 


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


 


(f)            Insufficient Funds.  If
at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, L/C Borrowings,
interest and fees then due hereunder, such funds shall be applied (i) first,
toward payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, toward payment of
principal and L/C Borrowings then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and L/C Borrowings
then due to such parties.


 


2.13         Sharing of Payments by
Lenders.


 


If
any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of the Loans
made by it, or the participations in L/C Obligations or in Swing Line Loans
held by it resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of such Loans or participations and accrued interest thereon
greater than its pro  rata share thereof as provided herein, then
the Lender receiving such greater proportion shall (a) notify the
Administrative Agent of such fact, and (b) purchase (for cash at face
value) participations in the Loans and subparticipations in L/C Obligations and
Swing Line Loans of the other Lenders, or make 


 


41

















 


such
other adjustments as shall be equitable, so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:


 


(i)            if any such participations or
subparticipations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations or subparticipations shall be
rescinded and the purchase price restored to the extent of such recovery,
without interest; and


 


(ii)           the provisions of this Section shall not
be construed to apply to (A) any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or (B) any
payment obtained by a Lender as consideration for the assignment of or sale of
a participation in any of its Loans or subparticipations in L/C Obligations or
Swing Line Loans to any assignee or participant, other than to the Borrower or
any Subsidiary (as to which the provisions of this Section shall apply).


 


Each
Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against such
Loan Party rights of setoff and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.


 


2.14         Extension of Maturity Date.


 


(a)           Requests
for Extension.  The Borrower may, by notice to the
Administrative Agent (who shall promptly notify the Lenders) not earlier than
60 days and not later than 45 days prior to the Maturity Date then in
effect, request that each Lender extend the Maturity Date then in effect by one
(1) year.  Each Lender, acting in
its sole and individual discretion, shall, by notice to the Administrative
Agent given not later than the date that is 30 days prior to the Maturity
Date then in effect (the “Notice Date”), advise the Administrative Agent
whether or not such Lender agrees to such extension.  The Maturity Date then in effect shall be
extended by one year if each Lender agrees to such extension.  Any Lender that does not so advise the
Administrative Agent by the Notice Date shall be deemed to have not approved
such extension.  The election of any
Lender to agree to such extension shall not obligate any other Lender to so
agree.  The Borrower may request only two
extensions of the Maturity Date.


 


(b)           Conditions
to Effectiveness of Extensions.  Notwithstanding the foregoing, the extension
of the Maturity Date pursuant to this Section shall not be effective
unless:


 


(i)            no
Default shall exist; and


 


(ii)           the
representations and warranties of each Loan Party contained in Article VI
or any other Loan Document, or which are contained in any document furnished at
any time under or in connection herewith or therewith, shall be true and
correct on and as of the date of such extension, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date.


 


42

















 


ARTICLE III


 


TAXES, YIELD PROTECTION AND ILLEGALITY


 


3.01         Taxes.


 


(a)           Payments
Free of Taxes — Obligation to Withhold: Payments on Account of Taxes.


 


(i)            Any
and all payments by or on account of any obligation of the Loan Parties
hereunder or under any other Loan Document shall to the extent permitted by
applicable Laws be made free and clear of and without reduction or withholding
for any Taxes. If, however, applicable Laws require the Loan Parties or the
Administrative Agent to withhold or deduct any Tax, such Tax shall be withheld
or deducted in accordance with such Laws as determined by the Loan Parties or
the Administrative Agent, as the case may be, upon the basis of the information
and documentation to be delivered pursuant to subsection (e) below.


 


(ii)           If
the Loan Parties or the Administrative Agent shall be required by the Internal
Revenue Code to withhold or deduct any Taxes, including both United States
Federal backup withholding and withholding taxes, from any payment, then (A) the
Administrative Agent shall withhold or make such deductions as are determined
by the Administrative Agent to be required based upon the information and
documentation it has received pursuant to subsection (e) below, (B) the
Administrative Agent shall timely pay the full amount withheld or deducted to
the relevant Governmental Authority in accordance with the Internal Revenue
Code, and (C) to the extent that the withholding or deduction is made on
account of Indemnified Taxes or Other Taxes, the sum payable by the Loan
Parties shall be increased as necessary so that after any required withholding
or the making of all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, any
Lender or the L/C Issuer, as the case may be, receives an amount equal to the
sum it would have received had no such withholding or deduction been made.


 


(b)           Payment
of Other Taxes.  Without limiting the provisions of subsection
(a) above, the Loan Parties shall timely pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable Laws.


 


(c)           Tax
Indemnifications.


 


(i)            Without
limiting the provisions of subsection (a) or (b) above, the Loan
Parties shall, and does hereby indemnify the Administrative Agent, each Lender
and the L/C Issuer, and shall make payment in respect thereof within 10 days
after demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) withheld or deducted by the
Loan Parties or the Administrative Agent or paid by the Administrative Agent,
such Lender or the L/C Issuer, as the case may be, and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority.  The Loan Parties shall also, and do hereby,
indemnify the Administrative Agent, and shall make payment in respect thereof
within 10 days after demand therefor, for any amount which a Lender or the L/C
Issuer for any reason fails to pay indefeasibly to the Administrative Agent as
required by clause (ii) of this subsection.  A certificate as to the amount of any such
payment or liability delivered to the Borrower by a Lender or the L/C Issuer
(with a copy to the Administrative Agent), or by the 


 


43

















 


Administrative
Agent on its own behalf or on behalf of a Lender or the L/C Issuer, shall be
conclusive absent manifest error.


 


(ii)           Without
limiting the provisions of subsection (a) or (b) above, each Lender
and the L/C Issuer shall, and does hereby, indemnify the Loan Parties and the
Administrative Agent, and shall make payment in respect thereof within 10 days
after demand therefor, against any and all Taxes and any and all related
losses, claims, liabilities, penalties, interest and expenses (including the
reasonable and documented fees, charges and disbursements of any counsel for
the Loan Parties or the Administrative Agent) incurred by or asserted against
the Loan Parties or the Administrative Agent by any Governmental Authority as a
result of the failure by such Lender or the L/C Issuer, as the case may be, to
deliver, or as a result of the inaccuracy, inadequacy or deficiency of, any
documentation required to be delivered by such Lender or the L/C Issuer, as the
case may be, to the Loan Parties or the Administrative Agent pursuant to
subsection (e).  Each Lender and the L/C
Issuer hereby authorizes the Administrative Agent to set off and apply any and
all amounts at any time owing to such Lender or the L/C Issuer, as the case may
be, under this Agreement or any other Loan Document against any amount due to
the Administrative Agent under this clause (ii).  The agreements in this clause (ii) shall
survive the resignation and/or replacement of the Administrative Agent, any
assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the
termination of the Commitments and the repayment, satisfaction or discharge of
all other Obligations.


 


(d)           Evidence
of Payments.  Upon request by the Borrower or the Administrative
Agent, as the case may be, after any payment of Taxes by any Loan Party or by
the Administrative Agent to a Governmental Authority, as provided in this Section 3.01,
the Borrower shall deliver to the Administrative Agent or the Administrative
Agent shall deliver to the Borrower, as the case may be, the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of any return required by Law to report such payment or
other evidence of such payment reasonably satisfactory to the Borrower or the
Administrative Agent, as the case may be.


 


(e)           Status
of Lenders: Tax Documentation.


 


(i)            Each
Lender shall deliver to the Borrower and to the Administrative Agent, at the
time or times prescribed by applicable Laws or when reasonably requested by the
Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by applicable Laws or by the taxing authorities of any
jurisdiction and such other reasonably requested information as will permit the
Borrower or the Administrative Agent, as the case may be, to determine (A) whether
or not payments made hereunder or under any other Loan Document are subject to
Taxes, (B) if applicable, the required rate of withholding or deduction,
and (C) such Lender’s entitlement to any available exemption from, or
reduction of, applicable Taxes in respect of all payments to be made to such
Lender by the Borrower pursuant to this Agreement or otherwise to establish
such Lender’s status for withholding tax purposes in the applicable
jurisdiction.


 


(ii)           Without
limiting the generality of the foregoing, if the Borrower is a resident for tax
purposes in the United States


 


(A)          any Lender that is a “United States person” within the meaning of Section 7701(a)(30)
of the Internal Revenue Code shall deliver to the Borrower and the
Administrative Agent executed originals of Internal Revenue Service Form W-9
or such other documentation or information prescribed by applicable Laws or
reasonably requested by the Borrower or the Administrative Agent as will enable
the Borrower or the 


 


44

















 


Administrative
Agent, as the case may be, to determine whether or not such Lender is subject
to backup withholding or information reporting requirements; and


 


(B)           each Foreign Lender that is entitled under the Internal Revenue Code or
any applicable treaty to an exemption from or reduction of withholding tax with
respect to payments hereunder or under any other Loan Document shall deliver to
the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrower or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the following is
applicable:


 


(I)            executed
originals of Internal Revenue Service Form W-8BEN claiming eligibility for
benefits of an income tax treaty to which the United States is a party,


 


(II)           executed
originals of Internal Revenue Service Form W-8ECI,


 


(III)         executed
originals of Internal Revenue Service Form W-8IMY and all required
supporting documentation,


 


(IV)         in the
case of a Foreign Lender claiming the benefits of the exemption for portfolio
interest under section 881(c) of the Internal Revenue Code, (x) a
certificate to the effect that such Foreign Lender is not (A) a “bank”
within the meaning of section 881(c)(3)(A) of the Internal Revenue Code, (B) a
“10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Internal Revenue Code, or (C) a “controlled
foreign corporation” described in section 881(c)(3)(C) of the Internal
Revenue Code and (y) executed originals of Internal Revenue Service Form W-8BEN,
or


 


(V)           executed
originals of any other form prescribed by applicable Laws as a basis for
claiming exemption from or a reduction in United States Federal withholding tax
together with such supplementary documentation as may be prescribed by
applicable Laws to permit the Borrower or the Administrative Agent to determine
the withholding or deduction required to be made.


 


(iii)          Each
Lender shall promptly (A) notify the Borrower and the Administrative Agent
of any change in circumstances which would modify or render invalid any claimed
exemption or reduction, and (B) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lender, and as may be
reasonably necessary (including the re-designation of its Lending Office) to
avoid any requirement of applicable Laws of any jurisdiction that the Borrower
or the Administrative Agent make any withholding or deduction for taxes from
amounts payable to such Lender.


 


3.02         Illegality.


 


If
any Lender determines that any Law has made it unlawful, or that any
Governmental Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make, maintain or fund Eurodollar Rate Loans, or
to determine or charge interest rates based upon the Eurodollar Rate, or any
Governmental Authority has imposed material restrictions on the authority of
such Lender to purchase or sell, or to take deposits of, Dollars in the London
interbank market, then, on notice thereof by such Lender


 


45
















 


to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist.  Upon receipt of such notice, the Borrower
shall, upon demand from such Lender (with a copy to the Administrative Agent),
prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to
Base Rate Loans, either on the last day of the Interest Period therefor, if
such Lender may lawfully continue to maintain such Eurodollar Rate Loans to
such day, or immediately, if such Lender may not lawfully continue to maintain
such Eurodollar Rate Loans.  Upon any
such prepayment or conversion, the Borrower shall also pay accrued interest on
the amount so prepaid or converted.


 


3.03         Inability to Determine
Rates.


 


If the Required Lenders
determine that for any reason in connection with any request for a Eurodollar
Rate Loan or a conversion to or continuation thereof that (a) Dollar
deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate
Loan, (b)  adequate and reasonable means do not exist for determining the
Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan, or (c) the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such
Loan, the Administrative Agent will promptly notify the Borrower and each
Lender.  Thereafter, the obligation of
the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until
the Administrative Agent (upon the instruction of the Required Lenders) revokes
such notice.  Upon receipt of such
notice, the Borrower may revoke any pending request for a Borrowing of,
conversion to or continuation of Eurodollar Rate Loans or, failing that, will
be deemed to have converted such request into a request for a Borrowing of Base
Rate Loans in the amount specified therein.


 


3.04         Increased Costs.


 


(a)           Increased Costs Generally.  If
any Change in Law shall:


 


(i)            impose, modify or deem applicable any
reserve, special deposit, compulsory loan, insurance charge or similar
requirement against assets of, deposits with or for the account of, or credit
extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate) or the L/C Issuer;


 


(ii)           subject any Lender or the L/C Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a
Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of
taxation of payments to such Lender or the L/C Issuer in respect thereof
(except for Indemnified Taxes or Other Taxes covered by Section 3.01
and the imposition of, or any change in the rate of, any Excluded Tax payable
by such Lender or the L/C Issuer); or


 


(iii)          impose on any Lender or the L/C Issuer or the London interbank market
any other condition, cost or expense affecting this Agreement or Eurodollar
Rate Loans made by such Lender or any Letter of Credit or participation
therein;


 


and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining
any Eurodollar Rate Loan (or of maintaining its obligation to make any such
Loan), or to increase the cost to such Lender or the L/C Issuer of
participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of 


 


46

















 


Credit), or to reduce the
amount of any sum received or receivable by such Lender or the L/C Issuer
hereunder (whether of principal, interest or any other amount) then, upon
request of such Lender or the L/C Issuer, the Borrower will pay to such Lender
or the L/C Issuer, as the case may be, such additional amount or amounts as
will compensate such Lender or the L/C Issuer, as the case may be, for such
additional costs incurred or reduction suffered.


 


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


 


(c)           Certificates for Reimbursement.  A
certificate of a Lender or the L/C Issuer, together with reasonable supporting
documentation or calculations, setting forth the amount or amounts necessary to
compensate such Lender or the L/C Issuer or its holding company, as the case
may be, as specified in subsection (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error.  The Borrower shall pay such Lender or the L/C
Issuer, as the case may be, the amount shown as due on any such certificate
within 10 days after receipt thereof.


 


(d)           Delay in Requests. 
Failure or delay on the part of any Lender or the L/C Issuer to demand
compensation pursuant to the foregoing provisions of this Section shall
not constitute a waiver of such Lender’s or the L/C Issuer’s right to demand
such compensation, provided that the Borrower shall not be required to
compensate a Lender or the L/C Issuer pursuant to the foregoing provisions of
this Section for any increased costs incurred or reductions suffered more
than six months prior to the date that such Lender or the L/C Issuer, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender’s or the L/C Issuer’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the six
month period referred to above shall be extended to include the period of
retroactive effect thereof).


 


3.05         Compensation for Losses.


 


Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the Borrower shall
promptly compensate such Lender for and hold such Lender harmless from any
loss, cost or expense incurred by it as a result of:


 


(a)           any
continuation, conversion, payment or prepayment of any Loan other than a Base
Rate Loan on a day other than the last day of the Interest Period for such Loan
(whether voluntary, mandatory, automatic, by reason of acceleration, or
otherwise);


 


(b)           any
failure by the Borrower (for a reason other than the failure of such Lender to
make a Loan) to prepay, borrow, continue or convert any Loan other than a Base
Rate Loan on the date or in the amount notified by the Borrower; or


 


47

















 


(c)           any
assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest
Period therefor as a result of a request by the Borrower pursuant to Section 11.13;
or


 


including any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan
or from fees payable to terminate the deposits from which such funds were
obtained (but excluding any loss of anticipated profits).  The Borrower shall also pay any customary
administrative fees charged by such Lender in connection with the foregoing.


 


For purposes of calculating
amounts payable by the Borrower to the Lenders under this Section 3.05,
each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it
at the Eurodollar Base Rate used in determining the Eurodollar Rate for such
Loan by a matching deposit or other borrowing in the London interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Eurodollar Rate Loan was in fact so funded.


 


3.06         Mitigation Obligations;
Replacement of Lenders.


 


(a)           Designation of a Different Lending Office.  If
any Lender requests compensation under Section 3.04, or the
Borrower is required to pay any additional amount to any Lender, the L/C
Issuer, or any Governmental Authority for the account of any Lender or the L/C
Issuer pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender or the L/C Issuer shall,
as applicable, use reasonable efforts to designate a different Lending Office
for funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender or the L/C Issuer, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04,
as the case may be, in the future, or eliminate the need for the notice
pursuant to Section 3.02, as applicable, and (ii) in each
case, would not subject such Lender or the L/C Issuer, as the case may be, to
any unreimbursed cost or expense and would not otherwise be disadvantageous to
such Lender or the L/C Issuer, as the case may be.  The Borrower hereby agrees to pay all
reasonable out-of-pocket costs and expenses incurred by any Lender or the L/C
Issuer in connection with any such designation or assignment.


 


(b)           Replacement of Lenders.  If
any Lender requests compensation under Section 3.04, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
the Borrower may replace such Lender in accordance with Section 11.13.


 


3.07         Survival.


 


All of the Loan Parties’
obligations under this Article III shall survive termination of the
Aggregate Revolving Commitments, repayment of all other Obligations hereunder
and resignation of the Administrative Agent.


 


ARTICLE IV


 


GUARANTY


 


4.01         The Guaranty.


 


Each of the Guarantors
hereby jointly and severally guarantees to each Lender, each Affiliate of a
Lender that enters into a Swap Contract or a Treasury Management Agreement with
the Borrower or any Subsidiary, and the Administrative Agent as hereinafter
provided, as primary obligor and not as surety, the 


 


48

















 


prompt payment of the Obligations in full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof.  The
Guarantors hereby further agree that if any of the Obligations are not paid in
full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise), the
Guarantors will, jointly and severally, promptly pay the same, without any
demand or notice whatsoever, and that in the case of any extension of time of
payment or renewal of any of the Obligations, the same will be promptly paid in
full when due (whether at extended maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) in accordance
with the terms of such extension or renewal.


 


Notwithstanding any
provision to the contrary contained herein or in any other of the Loan
Documents, Swap Contracts or Treasury Management Agreements, the obligations of
each Guarantor under this Agreement and the other Loan Documents shall not
exceed an aggregate amount equal to the largest amount that would not render
such obligations subject to avoidance under applicable Debtor Relief Laws.


 


4.02         Obligations Unconditional.


 


The obligations of the
Guarantors under Section 4.01 are joint and several, absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Loan Documents or other documents relating to the
Obligations, or any substitution, release, impairment or exchange of any other
guarantee of or security for any of the Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor (other than payment in full of the Obligations (other than
contingent indemnification obligations) and the expiration or termination of
the Commitments), it being the intent of this Section 4.02 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances.  Each
Guarantor agrees that such Guarantor shall have no right of subrogation,
indemnity, reimbursement or contribution against the Borrower or any other
Guarantor for amounts paid under this Article IV until such time as
the Obligations (other than contingent indemnification obligations) have been
paid in full and the Commitments have expired or terminated.  Upon the payment in full of the Obligations
(other than contingent indemnification obligations) and the expiration or
termination of the Commitments, each Guarantor shall be subrogated to the
rights of the Administrative Agent and the Lenders to the extent of any payment
made by such Guarantor under this Article IV.  Without limiting the generality of the
foregoing, it is agreed that, to the fullest extent permitted by Law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder, which shall remain absolute and unconditional
as described above:


 


(a)           at
any time or from time to time, without notice to any Guarantor, the time for
any performance of or compliance with any of the Obligations shall be extended,
or such performance or compliance shall be waived;


 


(b)           any of
the acts mentioned in any of the provisions of any of the Loan Documents, or
any other document relating to the Obligations shall be done or omitted;


 


(c)           the
maturity of any of the Obligations shall be accelerated, or any of the
Obligations shall be modified, supplemented or amended in any respect, or any
right under any of the Loan Documents, or any other document relating to the
Obligations shall be waived or any other guarantee of any of the Obligations or
any security therefor shall be released, impaired or exchanged in whole or in
part or otherwise dealt with;


 


(d)           any
Lien granted to, or in favor of, the Administrative Agent or any other holder
of the Obligations as security for any of the Obligations shall fail to attach
or be perfected; or


 


49

















 


(e)           any
of the Obligations shall be determined to be void or voidable (including,
without limitation, for the benefit of any creditor of any Guarantor) or shall
be subordinated to the claims of any Person (including, without limitation, any
creditor of any Guarantor).


 


With respect to its
obligations hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever, and any
requirement that the Administrative Agent or any other holder of the
Obligations exhaust any right, power or remedy or proceed against any Person
under any of the Loan Documents, or any other document relating to the
Obligations, or against any other Person under any other guarantee of, or
security for, any of the Obligations.


 


4.03         Reinstatement.


 


The obligations of each
Guarantor under this Article IV shall be automatically reinstated
if and to the extent that for any reason any payment by or on behalf of any
Person in respect of the Obligations is rescinded or must be otherwise restored
by any holder of any of the Obligations, whether as a result of any Debtor
Relief Law or otherwise, and each Guarantor agrees that it will indemnify the
Administrative Agent and each other holder of the Obligations on demand for all
reasonable costs and out-of-pocket expenses (including, without limitation, the
reasonable and documented fees, charges and disbursements of counsel) incurred
by the Administrative Agent or such holder of the Obligations in connection
with such rescission or restoration, including any such costs and out-of-pocket
expenses incurred in defending against any claim alleging that such payment
constituted a preference, fraudulent transfer or similar payment under any
Debtor Relief Law.


 


4.04         Certain Additional Waivers.


 


Each Guarantor agrees that
such Guarantor shall have no right of recourse to security for the Obligations,
except through the exercise of rights of subrogation pursuant to Section 4.02
and through the exercise of rights of contribution pursuant to Section 4.06.


 


4.05         Remedies.


 


                The Guarantors agree that, to the fullest
extent permitted by law, as between the Guarantors, on the one hand, and the
Administrative Agent and the other holders of the Obligations, on the other
hand, the Obligations may be declared to be forthwith due and payable as
specified in Section 9.02 (and shall be deemed to have become
automatically due and payable in the circumstances specified in Section 9.02)
for purposes of Section 4.01 notwithstanding any stay, injunction
or other prohibition preventing such declaration (or preventing the Obligations
from becoming automatically due and payable) as against any other Person and
that, in the event of such declaration (or the Obligations being deemed to have
become automatically due and payable), the Obligations (whether or not due and
payable by any other Person) shall forthwith become due and payable by the
Guarantors for purposes of Section 4.01.  The Guarantors acknowledge and agree that
their obligations hereunder are secured in accordance with the terms of the
Collateral Documents and that the holders of the Obligations may exercise their
remedies thereunder in accordance with the terms thereof.


 


4.06         Rights of Contribution.


 


The Guarantors agree among
themselves that, in connection with payments made hereunder, each Guarantor
shall have contribution rights against the other Guarantors as permitted under
applicable law.  Such contribution rights
shall be subordinate and subject in right of payment to the obligations of such
Guarantors under the Loan Documents and no Guarantor shall exercise such rights
of contribution until all Obligations 


 


50

















 


(other than contingent indemnification
obligations) have been paid in full and the Commitments have terminated.


 


4.07         Guarantee of Payment;
Continuing Guarantee.


 


The guarantee in this Article IV
is a guaranty of payment and not of collection, is a continuing guarantee, and
shall apply to all Obligations whenever arising.


 


ARTICLE V


 


CONDITIONS PRECEDENT TO CREDIT EXTENSIONS


 


5.01         Conditions of
Effectiveness.


 


This Agreement shall be
effective upon satisfaction of the following conditions precedent:


 


(a)           Loan
Documents.  Receipt by the Administrative Agent of executed
counterparts of this Agreement and the other Loan Documents, each properly
executed by a Responsible Officer of the signing Loan Party and, in the case of
this Agreement, by each Lender.


 


(b)           Opinions
of Counsel. Receipt by the
Administrative Agent of favorable opinions of legal counsel to the Loan
Parties, addressed to the Administrative Agent and each Lender, dated as of the
Closing Date, and in form and substance reasonably satisfactory to the
Administrative Agent.


 


(c)           Organization
Documents, Resolutions, Etc.  Receipt by the Administrative Agent of the
following, in form and substance reasonably satisfactory to the Administrative
Agent:


 


(i)            copies
of the Organization Documents of each Loan Party certified to be true and
complete as of a recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation or organization, where
applicable, and certified by a secretary or assistant secretary of such Loan
Party to be true and correct as of the Closing Date;


 


(ii)           such
certificates of resolutions or other action, incumbency certificates and/or
other certificates of Responsible Officers of each Loan Party as the
Administrative Agent may reasonably require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a
Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party; and


 


(iii)          such
documents and certifications as the Administrative Agent may reasonably require
to evidence that each Loan Party is duly organized or formed, and is validly
existing, in good standing and qualified to engage in business in its state of
organization or formation, the state of its principal place of business and
each other jurisdiction where its ownership, lease or operation of properties
or the conduct of its business requires such qualification, except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


(d)           Personal
Property Collateral.  Receipt by the Administrative Agent of the
following:


 


51

















 


(i)            searches
of Uniform Commercial Code filings in the jurisdiction of formation of each
Loan Party and each other jurisdiction deemed appropriate by the Administrative
Agent;


 


(ii)           UCC
financing statements for each appropriate jurisdiction as is necessary, in the
Administrative Agent’s reasonable discretion, to perfect the Administrative
Agent’s security interest in the Collateral;


 


(iii)          all
certificates evidencing any certificated Equity Interests pledged to the
Administrative Agent pursuant to the Security Agreement, together with duly
executed in blank, undated stock powers attached thereto (unless, with respect
to the pledged Equity Interests of any Foreign Subsidiary, such stock powers
are deemed unnecessary by the Administrative Agent in its reasonable discretion
under the law of the jurisdiction of organization of such Person);


 


(iv)          searches
of ownership of, and Liens on, United States registered intellectual property
of each Loan Party in the appropriate governmental offices; and


 


(v)           duly
executed notices of grant of security interest in the form required by the
Security Agreement as are necessary, in the Administrative Agent’s reasonable
discretion, to perfect the Administrative Agent’s security interest in the
United States registered intellectual property of the Loan Parties.


 


(e)           Evidence
of Insurance.  Receipt by the Administrative Agent of copies
of insurance policies or certificates of insurance of the Loan Parties
evidencing liability and casualty insurance meeting the requirements set forth
in the Loan Documents, including, but not limited to, naming the Administrative
Agent as additional insured (in the case of liability insurance) or loss payee
(in the case of hazard insurance) on behalf of the Lenders.


 


(f)            IPO.  The
initial public offering of the Borrower’s common stock through an underwritten
primary public offering shall have been consummated.


 


(g)           Fees. 
Receipt by the Administrative Agent, the Arranger and the Lenders of any
fees required to be paid on or before the Closing Date.


 


(h)           Attorney
Costs.  The Borrower shall have paid all reasonable
and documented fees, charges and disbursements of counsel to the Administrative
Agent (directly to such counsel if requested by the Administrative Agent) to
the extent invoiced prior to or on the Closing Date, plus such additional
amounts of such fees, charges and disbursements as shall constitute its
reasonable estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing proceedings (provided that such estimate
shall not thereafter preclude a final settling of accounts between the Borrower
and the Administrative Agent).


 


Without limiting the
generality of the provisions of the last paragraph of Section 10.04,
for purposes of determining compliance with the conditions specified in this Section 5.01,
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 hereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.


 


52

















 


5.02         Conditions to all Credit
Extensions.


 


The obligation of each
Lender to honor any Request for Credit Extension is subject to the following
conditions precedent:


 


(a)           The
representations and warranties of each Loan Party contained in Article VI
or any other Loan Document, or which are contained in any document executed by
any Loan Party and furnished at any time under or in connection herewith or therewith,
shall be true and correct in all material respects on and as of the date of
such Credit Extension, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case they shall be
true and correct in all material respects as of such earlier date.


 


(b)           No
Default shall exist, or would result from such proposed Credit Extension or
from the application of the proceeds thereof.


 


                (c)           The Borrower shall have delivered to the
Administrative Agent a Borrowing Base Certificate demonstrating that after
giving effect to such Credit Extension on a Pro Forma Basis, the Total
Revolving Outstandings shall not exceed the Borrowing Base.


 


(d)           The
Administrative Agent and, if applicable, the L/C Issuer or the Swing Line
Lender shall have received a Request for Credit Extension in accordance with
the requirements hereof.


 


                Each Request for Credit Extension submitted
by the Borrower shall be deemed to be a representation and warranty that the
conditions specified in Sections 5.02(a), (b) and (c) have been satisfied on and as of the date of
the applicable Credit Extension.


 


ARTICLE VI


 


REPRESENTATIONS AND WARRANTIES


 


The Loan Parties represent
and warrant to the Administrative Agent and the Lenders that:


 


6.01         Existence, Qualification
and Power.


 


The Borrower and each of its
Subsidiaries (a) is duly organized or formed, validly existing and, as
applicable, in good standing under the Laws of the jurisdiction of its
incorporation or organization, (b) has all requisite power and authority
and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a
party, and (c) is duly qualified and is licensed and, as applicable, in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or
(c), to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


6.02         Authorization; No
Contravention.


 


The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party have been duly authorized by all necessary corporate or other
organizational action, and do not (a) contravene the terms of any of such
Person’s Organization Documents; (b) conflict with or result in any breach
or contravention of, or the creation of any Lien under, or require any payment
to be 


 


53

















 


made under (i) any material Contractual
Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Subsidiaries or (ii) any order,
injunction, writ or decree of any Governmental Authority or any arbitral award
to which such Person or its property is subject; or (c) violate any Law.


 


6.03         Governmental
Authorization; Other Consents.


 


No material approval,
consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required
in connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document other than
(i) those that have already been obtained and are in full force and effect
and (ii) filings to perfect the Liens created by the Collateral Documents.


 


6.04         Binding Effect.


 


Each Loan Document has been
duly executed and delivered by each Loan Party that is party thereto.  Each Loan Document constitutes a legal, valid
and binding obligation of each Loan Party that is party thereto, enforceable
against each such Loan Party in accordance with its terms, except as such
enforceability may be limited by (i) applicable Debtor Relief Laws and (ii) general
principles of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).


 


6.05         Financial Statements; No
Material Adverse Effect.


 


(a)           The Audited Financial Statements (i) were
prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly
present in all material respects the financial condition of the Borrower and
its Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein; and (iii) show
all material indebtedness and other liabilities, direct or contingent, of the
Borrower and its Subsidiaries as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness.


 


(b)           From the date of the Audited Financial
Statements to and including the Closing Date, there has been no Disposition or
any Involuntary Disposition of any material part of the business or property of
the Borrower and its Subsidiaries, taken as a whole, and no purchase or other
acquisition by any of them of any business or property (including any Equity
Interests of any other Person) material in relation to the consolidated
financial condition of the Borrower and its Subsidiaries, taken as a whole, in each
case, which is not reflected in the foregoing financial statements or in the
notes thereto or has not otherwise been disclosed in writing to the Lenders on
or prior to the Closing Date.


 


(c)           The financial statements delivered pursuant
to Section 7.01(a) and (b) have been prepared in accordance with GAAP (except as may
otherwise be permitted under Section 7.01(a) and (b)) and present fairly (on the
basis disclosed in the footnotes to such financial statements) the consolidated
financial condition, results of operations and cash flows of the Borrower and
its Subsidiaries as of the dates thereof and for the periods covered thereby.


 


(d)           Since the date of the Audited Financial
Statements, there has been no event or circumstance that has had or could
reasonably be expected to have a Material Adverse Effect.


 


54

















 


6.06         Litigation.


 


                There are no actions, suits, proceedings,
claims or disputes pending or, to the knowledge of the Loan Parties after
reasonable investigation, threatened or contemplated, at law, in equity, in
arbitration or before any Governmental Authority, by or against the Borrower or
any Subsidiary or against any of their properties or revenues that (a) purport
to affect or pertain to this Agreement or any other Loan Document, or any of
the transactions contemplated hereby or (b) could reasonably be expected
to have a Material Adverse Effect.


 


6.07         No Default.


 


                (a)           Neither the Borrower nor any Subsidiary is in default under or with
respect to any Contractual Obligation that could reasonably be expected to have
a Material Adverse Effect.


 


                                                (b)           No Default has occurred and is continuing.


 


6.08         Ownership of Property;
Liens.


 


Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary in the ordinary conduct of
its business, except for Permitted Liens and such defects in title as could not
reasonably be expected to have a Material Adverse Effect.  The property of the Borrower and its
Subsidiaries is not subject to any Liens other than Permitted Liens.


 


6.09         Environmental Compliance.


 


Except as could not
reasonably be expected to have a Material Adverse Effect:


 


                (a)           Each of the facilities and real properties
owned, leased or operated by the Borrower or any Subsidiary (the “Facilities”)
and all operations at the Facilities are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Facilities or the businesses operated by the Borrower and its
Subsidiaries at such time (the “Businesses”), and there are no
conditions relating to the Facilities or the Businesses that would be
reasonably likely to give rise to liability under any applicable Environmental
Laws.


 


                (b)           None of the Facilities contains, or has
previously contained, any Hazardous Materials at, on or under the Facilities in
amounts or concentrations that constitute or constituted a violation of, or
would be reasonably likely to give rise to liability under, Environmental Laws.


 


                (c)           Neither the Borrower nor any Subsidiary has
received any written notice of, or inquiry from any Governmental Authority
regarding, any violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Facilities or the Businesses, nor
does any Responsible Officer of any Loan Party have knowledge or reason to
believe that any such notice will be received or is being threatened.


 


                (d)           Hazardous Materials have not been transported
or disposed of from the Facilities, or generated, treated, stored or disposed
of at, on or under any of the Facilities or any other location, in each case by
or on behalf of the Borrower or any Subsidiary in violation of, or in a manner
that would be reasonably likely to give rise to liability under, any applicable
Environmental Law.


 


55
















 


                (e)           No judicial proceeding or governmental or administrative action is
pending or, to the knowledge of the Responsible Officers of the Loan Parties,
threatened, under any Environmental Law to which the Borrower or any Subsidiary
is or will be named as a party, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to the Borrower, any Subsidiary, the Facilities or the Businesses.


 


(f)            There
has been no release or threat of release of Hazardous Materials at or from the
Facilities, or arising from or related to the operations (including, without
limitation, disposal) of the Borrower or any Subsidiary in connection with the
Facilities or otherwise in connection with the Businesses, in violation of or
in amounts or in a manner that would be reasonably likely to give rise to
liability under Environmental Laws.


 


                This Section 6.09 sets forth the
sole and exclusive representations and warranties of the Loan Parties contained
in this Agreement with respect to compliance with Environmental Laws.


 


6.10         Insurance.


 


The
properties of the Borrower and its Subsidiaries are insured with financially
sound and reputable insurance companies not Affiliates of the Borrower, 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 the Borrower or the applicable Subsidiary
operates.


 


6.11         Taxes.


 


The
Borrower and its Subsidiaries have filed all federal, state and other material
tax returns and reports required to be filed, and have paid all federal, state
and other material taxes, assessments, fees and other governmental charges
levied or imposed upon them or their properties, income or assets otherwise due
and payable, except those which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been provided in
accordance with GAAP.  There is no
proposed tax assessment against the Borrower or any Subsidiary that would, if
made, have a Material Adverse Effect. 
Neither the Borrower nor any Subsidiary is party to any tax sharing
agreement.


 


6.12         ERISA Compliance.


 


(a)           Except
as could not reasonably be expected to have a Material Adverse Effect: (i) each
Plan is in compliance in all material respects with the applicable provisions
of ERISA, the Internal Revenue Code and other federal or state Laws; (ii) each
Plan that is intended to qualify under Section 401(a) of the Internal
Revenue Code has received a favorable determination letter from the IRS or an
application for such a letter is currently being processed by the IRS with
respect thereto and, to the best knowledge of the Loan Parties, nothing has
occurred which would prevent, or cause the loss of, such qualification; and (iii) each
Loan Party and each ERISA Affiliate have made all required contributions to
each Plan subject to Section 412 of the Internal Revenue Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Internal Revenue Code has been made with
respect to any Plan.


 


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


 


56

















 


(c)           Except
as could not reasonably be expected to have a Material Adverse Effect: (i) no
ERISA Event has occurred or is reasonably expected to occur; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) no Loan Party or
any ERISA Affiliate has incurred, or reasonably expects to incur, any liability
under Title IV of ERISA with respect to any Pension Plan (other than premiums
due and not delinquent under Section 4007 of ERISA); (iv) no Loan
Party or any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability (and no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) no Loan Party or any
ERISA Affiliate has engaged in a transaction that could be subject to Section 4069
or 4212(c) of ERISA.


 


6.13         Subsidiaries.


 


Set
forth on Schedule 6.13 is a complete and accurate list as of the Closing
Date of each Subsidiary, together with (i) jurisdiction of organization, (ii) number
of shares of each class of Equity Interests outstanding, and (iii) number
and percentage of outstanding shares of each class owned (directly or
indirectly) by the Borrower or any Subsidiary. 
The outstanding Equity Interests of each Subsidiary are validly issued,
fully paid and, to the extent applicable, non-assessable.


 


6.14         Margin Regulations;
Investment Company Act.


 


(a)           The
Borrower is not engaged and will not engage, principally or as one of its
important activities, in the business of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the FRB), or extending credit for
the purpose of purchasing or carrying margin stock.  Following the application of the proceeds of
each Borrowing or drawing under each Letter of Credit, not more than 25% of the
value of the assets (either of the Borrower only or of the Borrower and its
Subsidiaries on a consolidated basis) subject to the provisions of Section 8.01
or Section 8.05 or subject to any restriction contained in any
agreement or instrument between the Borrower and any Lender or any Affiliate of
any Lender relating to Indebtedness and within the scope of Section 9.01(e) will be margin stock.


 


(b)           None
of the Borrower, any Person Controlling the Borrower, or any Subsidiary is or
is required to be registered as an “investment company” under the Investment
Company Act of 1940.


 


6.15         Disclosure.


 


Each
Loan Party has disclosed to the Administrative Agent and the Lenders all
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that could
reasonably be expected to result in a Material Adverse Effect.  No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf
of any Loan Party to the Administrative Agent or any Lender in connection with
the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document (in each case, as modified
or supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under and the time at
which they were made and taken as a whole, not materially misleading; provided
that, with respect to projected financial information, the Loan Parties
represent only that such information was prepared in good faith based upon
assumptions believed by the Loan Parties to be reasonable at the time.


 


57

















 


6.16         Compliance with Laws.


 


Each
of the Borrower and each Subsidiary is in compliance with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to
its properties, except in such instances in which (a) such requirement of
Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply
therewith could not reasonably be expected to have a Material Adverse Effect.


 


6.17         Intellectual Property;
Licenses, Etc.


 


The
Borrower and its Subsidiaries own, or possess the legal right to use, all of
the trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights that are material
in the operation of their respective businesses (collectively, “IP Rights”).  Set forth on Schedule 6.17 is a list
of all IP Rights registered or pending registration with the United States
Copyright Office or the United States Patent and Trademark Office and owned by
each Loan Party as of the Closing Date. 
Except for such claims and infringements that could not reasonably be
expected to have a Material Adverse Effect, no claim has been asserted and is
pending by any Person challenging or questioning the use of any IP Rights or
the validity or effectiveness of any IP Rights, nor does any Loan Party know of
any such claim, and, to the knowledge of the Responsible Officers of the Loan
Parties, the use of any IP Rights by the Borrower or any Subsidiary or the
granting of a right or a license in respect of any IP Rights from the Borrower
or any Subsidiary does not infringe on the rights of any Person.  As of the Closing Date, none of the IP Rights
owned by any of the Loan Parties is subject to any licensing agreement or
similar arrangement except as set forth on Schedule 6.17.


 


6.18         Solvency.


 


The
Loan Parties are Solvent on a consolidated basis.


 


6.19         Perfection of Security
Interests in the Collateral.


 


The
Collateral Documents create valid security interests in, and Liens on, the
Collateral purported to be covered thereby and described therein, which
security interests and Liens will be, upon the timely and proper filings,
deliveries, notations and other actions contemplated by the Collateral
Documents, perfected security interests and Liens (to the extent that such
security interests and Liens can be perfected by such filings, deliveries,
notations and other actions), prior to all other Liens other than Permitted
Liens.


 


6.20         Business Locations;
Taxpayer Identification Number.


 


Set
forth on Schedule 6.20(a) is a list of all real property located in the United States that is
owned or leased by the Loan Parties as of the Closing Date.  Set forth on Schedule 6.20(b) is a list of all locations (other than
locations set forth on Schedule 6.20(a)) where any tangible personal
property of any Loan Party is located as of the Closing Date other than (i) property
in transit between such locations, (ii) property at a customer location, (iii) property
out for repair or refurbishment or in the possession of employees and (iv) other
property with an aggregate fair market value of less than $1 million.  Set forth on Schedule 6.20(c) is the chief executive office, U.S. tax payer
identification number and organizational identification number of each Loan
Party as of the Closing Date.  The exact
legal name and state of organization of each Loan Party is as set forth on the
signature pages hereto.  Except as
set forth on Schedule 6.20(d), no Loan Party has during the five years
preceding the Closing Date (i) changed its legal name, (ii) changed
its state of formation, or (iii) been party to a merger, consolidation or
other change in structure.


 


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6.21         Labor Matters.


 


(a)           There
are no collective bargaining agreements or Multiemployer Plans covering the
employees of the Borrower or any Subsidiary as of the Closing Date.


 


(b)           Neither
the Borrower nor any Subsidiary has suffered any strikes, walkouts, work stoppages or
other material labor difficulty in the two years preceding the Closing Date.


 


ARTICLE VII


 


AFFIRMATIVE COVENANTS


 


                So long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation hereunder (other than
contingent indemnification obligations) shall remain unpaid or unsatisfied, or
any Letter of Credit (other than Cash Collateralized Letters of Credit) shall
remain outstanding, the Loan Parties shall and shall cause each Subsidiary to:


 


7.01         Financial Statements.


 


Deliver
to the Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent:


 


(a)           as
soon as available, but in any event within ninety days after the end of each
fiscal year of the Borrower, a consolidated balance sheet of the Borrower and
its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, changes in shareholders’
equity and cash flows for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Administrative Agent, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any “going concern” or like
qualification or exception or any qualification or exception as to the scope of
such audit;


 


(b)           as
soon as available, but in any event within forty-five days after the end of
each of the first three fiscal quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, the related consolidated statements of income or
operations for such fiscal quarter and for the portion of the Borrower’s fiscal
year then ended, and the related consolidated statements of changes in
shareholders’ equity and cash flows, setting forth in comparative form, as
applicable, the figures for the corresponding fiscal quarter of the previous
fiscal year and the corresponding portion of the previous fiscal year, all in
reasonable detail and certified by the chief executive officer, chief financial
officer, treasurer or controller of the Borrower as fairly presenting the
financial condition, results of operations, shareholders’ equity and cash flows
of the Borrower and its Subsidiaries in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes;


 


(c)           with
respect to each Majority Owned Joint Venture in which the Borrower or any
Subsidiary has any outstanding Investment:


 


(i)            as soon as available, but in any event within
ninety days after the end of each fiscal year of such Majority Owned Joint
Venture and its Subsidiaries, a 


 


59

















 


consolidated
balance sheet of such Majority Owned Joint Venture as at the end of such fiscal
year, and the related consolidated statements of income or operations, changes
in shareholders’ equity and cash flows for such fiscal year, all in reasonable
detail and prepared in accordance with GAAP, audited and accompanied by a
report and opinion of an independent certified public accountant of nationally
recognized standing reasonably acceptable to the Administrative Agent, which
report and opinion shall be prepared in accordance with generally accepted
auditing standards;


 


(ii)           as soon as available, but in any event within forty-five days after the
end of each of the first three fiscal quarters of each fiscal year of such
Majority Owned Joint Venture, a consolidated balance sheet of such Majority
Owned Joint Venture and its Subsidiaries as at the end of such fiscal quarter,
the related consolidated statements of income or operations for such fiscal
quarter and for the portion of such Majority Owned Joint Venture’s fiscal year
then ended, and the related consolidated statements of changes in shareholders’
equity and cash flows, all in reasonable detail and certified by the chief
executive officer, chief financial officer, treasurer or controller of the
Borrower as fairly presenting the financial condition, results of operations,
shareholders’ equity and cash flows of such Majority Owned Joint Venture and
its Subsidiaries in accordance with GAAP, subject only to normal year-end audit
adjustments and the absence of footnotes;


 


As
to any information contained in materials furnished pursuant to Section 7.02(d),
the Borrower shall not be separately required to furnish such information under
clause (a), (b) or (c) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in clauses (a), (b) or (c) above at the times specified
therein.


 


7.02         Certificates; Other
Information.


 


Deliver
to the Administrative Agent, in form and detail reasonably satisfactory to the
Administrative Agent:


 


(a)           concurrently
with the delivery of the financial statements referred to in Section 7.01(a),
a certificate of its independent certified public accountants certifying such
financial statements and stating that in making the examination necessary
therefor no knowledge was obtained of any Event of Default under the financial
covenants set forth herein or, if any such Event of Default shall exist,
stating the nature and status of such event;


 


(b)           concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and (b), a duly completed Compliance
Certificate signed by the chief executive officer, chief financial officer,
treasurer or controller of the Borrower;


 


(c)           prior
to the beginning of each fiscal year of the Borrower, beginning with the fiscal
year ending March 27, 2010, an annual business plan and budget of the Borrower
and its Subsidiaries containing, among other things, pro forma financial
statements for each quarter of such fiscal year;


 


(d)           promptly
after the same are available, copies of each annual report, proxy or financial
statement or other report or communication sent to the equityholders of the
Borrower or any Subsidiary, and copies of all annual, regular, periodic and
special reports and registration statements which the Borrower or any
Subsidiary may file or be required to file with the SEC under Section 13
or 15(d) of the Securities Exchange Act of 1934, and not otherwise
required to be delivered to the Administrative Agent pursuant hereto;


 


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(e)           concurrently
with the delivery of the financial statements referred to in Sections 7.01(a) and the financial statements for the second
fiscal quarter of each fiscal year referred to in Section 7.01(b),
a report signed by a Responsible Officer of the Borrower that supplements Schedule
6.17 such that, as supplemented, such Schedule would be accurate and complete as of such date;


 


(f)            promptly
after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or recommendations submitted to the
board of directors (or the audit committee of the board of directors) of the
Borrower by independent accountants in connection with the accounts or books of
the Borrower or any Subsidiary, or any audit of any of them;


 


(g)           promptly,
and in any event within five Business Days after receipt thereof by the
Borrower or any Subsidiary, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S.
jurisdiction) concerning any investigation or possible investigation or other
inquiry by such agency regarding financial or other operational results of the
Borrower or any Subsidiary; and


 


(h)           promptly,
such additional information regarding the business, financial or corporate
affairs of the Borrower or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.


 


Documents
required to be delivered pursuant to Section 7.01(a), (b) or (c) or Section 7.02(d) (to the extent any such documents are included
in materials otherwise filed with the SEC) may be delivered electronically and
if so delivered, shall be deemed to have been delivered on the date (i) on
which the Borrower posts such documents, or provides a link thereto on the
Borrower’s website on the Internet at the website address listed on Schedule
11.02; or (ii) on which such documents are posted on the Borrower’s
behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) the
Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify the
Administrative Agent (by telecopier or electronic mail) of the posting of any
such documents and provide to the Administrative Agent by electronic mail
electronic versions (i.e., soft copies) of such documents.  Notwithstanding anything contained herein, in
every instance the Borrower shall be required to provide paper copies of the
Compliance Certificates required by Section 7.02(b) to the Administrative Agent.  Except for such Compliance Certificates, the
Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have
no responsibility to monitor compliance by the Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such documents.


 


The
Borrower hereby acknowledges that (a) the Administrative Agent and/or the
Arranger will make available to the Lenders and the L/C Issuer materials and/or
information provided by or on behalf of the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another
similar electronic system (the “Platform”) and (b) certain of the
Lenders (each a “Public Lender”) may have personnel who do not wish to
receive material non-public information with respect to the Borrower or its
Affiliates, or the respective securities of any of the foregoing, and who may
be engaged in investment and other market-related activities with respect to
such Persons’ securities.  The Borrower
hereby agrees that so long as the Borrower is the issuer of any outstanding
debt or equity 


 


61

















 


securities
that are registered or issued pursuant to a private offering or is actively
contemplating issuing any such securities (w) all Borrower Materials that
are to be made available to Public Lenders shall be clearly and conspicuously
marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower
Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative
Agent, the Arranger, the L/C Issuer and the Lenders to treat such Borrower
Materials as not containing any material non-public information with respect to
the Borrower or its securities for purposes of United States federal and state
securities laws (provided, however, that to the extent such
Borrower Materials constitute Information, they shall be treated as set forth
in Section 11.07); (y) all Borrower Materials marked “PUBLIC”
are permitted to be made available through a portion of the Platform designated
as “Public Side Information;” and (z) the Administrative Agent and the
Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC”
as being suitable only for posting on a portion of the Platform that is not
marked as “Public Side Information”. 
Notwithstanding the foregoing, the Borrower shall be under no obligation
to mark any Borrower Materials “PUBLIC.”


 


7.03         Notices.


 


(a)           Promptly
notify the Administrative Agent and each Lender of the occurrence of any
Default.


 


(b)           Promptly
notify the Administrative Agent and each Lender of any matter that has resulted
or could reasonably be expected to result in a Material Adverse Effect.


 


(c)           Promptly
notify the Administrative Agent and each Lender of any material change in accounting
policies or financial reporting practices by the Borrower or any Subsidiary.


 


Each
notice pursuant to this Section 7.03 shall be accompanied by a
statement of a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein and stating what action the Borrower has taken
and proposes to take with respect thereto. 
Each notice pursuant to Section 7.03(a) shall describe with reasonable particularity
any and all provisions of this Agreement and any other Loan Document that have
been breached.


 


7.04         Payment of Taxes


 


Pay
and discharge, as the same shall become due and payable, all its material tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary.


 


7.05         Preservation of Existence,
Etc.


 


(a)           Preserve, renew and maintain in full force and effect
its legal existence under the Laws of the jurisdiction of its organization
except in a transaction permitted by Section 8.04 or 8.05.


 


(b)           Preserve, renew and
maintain in full force and effect its good standing under the Laws of the
jurisdiction of its organization except in a transaction permitted by Section 8.04
or 8.05.


 


(c)           Take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary in the normal conduct of its business, except
to the extent that the failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


62

















 


(d)           Preserve
or renew all of its IP Rights, the non-preservation of which could reasonably
be expected to have a Material Adverse Effect.


 


7.06         Maintenance of Properties.


 


(a)           Maintain, preserve and protect all of its material properties and
equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear and loss from casualty or condemnation
excepted, and provided that the Borrower or any Subsidiary may discontinue or
cease to maintain any such properties and equipment if they are no longer used
or useful in the business and so long as such discontinuance or failure to maintain
could not reasonably be expected to have a Material Adverse Effect.


 


(b)           Make all necessary repairs thereto and renewals and replacements
thereof, except where the failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


7.07         Maintenance of Insurance.


 


                (a)           Maintain in full force and effect insurance with financially sound and
reputable insurance companies not Affiliates of the Borrower, 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 the Borrower or the applicable Subsidiary operates.


 


                (b)           Cause the Administrative Agent to be named as loss payee or mortgagee,
as its interest may appear, and/or additional insured with respect to any such
insurance providing liability coverage or coverage in respect of any
Collateral, and cause each provider of any such insurance to agree, by
endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Administrative Agent, that it will give the
Administrative Agent thirty days prior written notice before any such policy or
policies shall be altered or canceled.


 


7.08         Compliance with Laws.


 


Comply
with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its business or property, except in such
instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings; or (b) the
failure to comply therewith could not reasonably be expected to have a Material
Adverse Effect.


 


7.09         Books and Records.


 


(a)           Maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP in all material respects consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower or such Subsidiary, as the case may be.


 


(b)           Maintain such books of record and account in material conformity with
all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or such Subsidiary, as the case may be.


 


7.10         Inspection Rights.


 


Permit
representatives and independent contractors of the Administrative Agent to
visit and inspect any of its properties, to examine its corporate, financial
and operating records, and make copies 


 


63

















 


thereof
or abstracts therefrom, and to discuss its affairs, finances and accounts with
its directors, officers, and independent public accountants, all at the expense
of the Borrower and at such reasonable times during normal business hours and
as often as may be reasonably desired, upon reasonable advance notice to the
Borrower; provided, however, that (i) absent an Event of
Default, the Borrower shall be required to pay for only one such visit and/or
inspection per fiscal year and (ii) when an Event of Default exists the
Administrative Agent (or any of its representatives or independent contractors)
may do any of the foregoing at the expense of the Borrower at any time during
normal business hours and without advance notice.


 


7.11         Use of Proceeds.


 


Use
the proceeds of the Credit Extensions to finance working capital, capital expenditures,
Restricted Payments permitted by Section 8.06 and other lawful
corporate purposes, provided that in no event shall the proceeds of the
Credit Extensions be used in contravention of any Law or of any Loan Document.


 


7.12         Additional Subsidiaries.


 


Within
thirty (30) days after the acquisition or formation of any Subsidiary (or such
later date as the Administrative Agent may agree in its sole discretion):


 


(a)           notify
the Administrative Agent thereof in writing, together with the (i) jurisdiction
of formation, (ii) number of shares of each class of Equity Interests
outstanding, (iii) number and percentage of outstanding shares of each
class owned (directly or indirectly) by the Borrower or any Subsidiary and (iv) number
and effect, if exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect thereto; and


 


(b)           if
such Subsidiary is a Domestic Subsidiary, cause such Person to (i) become
a Guarantor by executing and delivering to the Administrative Agent a Joinder
Agreement or such other documents as the Administrative Agent shall deem
appropriate for such purpose, and (ii) upon the request of the
Administrative Agent in its sole discretion, deliver to the Administrative
Agent such Organization Documents, resolutions and favorable opinions of
counsel, all in form, content and scope reasonably satisfactory to the
Administrative Agent.


 


7.13         Pledged Assets.


 


(a)           Equity
Interests.


 


(i)            Cause
100% of the issued and outstanding Equity Interests of each Domestic Subsidiary
to be subject at all times to a first priority, perfected Lien in favor of the
Administrative Agent pursuant to the terms and conditions of the Collateral
Documents, together with opinions of counsel and any filings and deliveries
reasonably necessary in connection therewith to perfect the security interests
therein, all in form and substance reasonably satisfactory to the
Administrative Agent.


 


(ii)           Cause
65% (or such greater percentage that, due to a change in an applicable Law after
the date hereof, (1) could not reasonably be expected to cause the
undistributed earnings of such Foreign Subsidiary as determined for United
States federal income tax purposes to be treated as a deemed dividend to such
Foreign Subsidiary’s United States parent and (2) could not reasonably be
expected to cause any material adverse tax consequences) of the issued and
outstanding Equity Interests entitled to vote (within the meaning of Treas.
Reg. Section 1.956-2(c)(2)) 


 


64

















 


and
100% of the issued and outstanding Equity Interests not entitled to vote
(within the meaning of Treas. Reg. Section 1.956-2(c)(2)) in each First
Tier Foreign Subsidiary to be subject at all times to a first priority,
perfected Lien in favor of the Administrative Agent pursuant to the terms and
conditions of the Collateral Documents, together with opinions of counsel and
any filings and deliveries reasonably necessary in connection therewith to
perfect the security interests therein, all in form and substance reasonably
satisfactory to the Administrative Agent.


 


(iii)          If at
any time any First Tier Foreign Subsidiary (considered with its Subsidiaries on
a consolidated basis) represents more than ten percent (10%) of the
consolidated total assets of the Borrower and its Subsidiaries or accounts for
more than ten percent (10%) of Consolidated Net Income (in each such case
determined as of the end of the most recently ended fiscal quarter for the
period of four consecutive fiscal quarters then ended), then, upon the request
of the Administrative Agent, cause the pledge of the Equity Interests required
by Section 7.13(a)(ii) to be made pursuant to security documents governed by the Laws of the
jurisdiction of such First Tier Foreign Subsidiary, together with opinions of
counsel and any filings and deliveries reasonably necessary in connection
therewith to perfect the security interests therein, all in form and substance
reasonably satisfactory to the Administrative Agent.


 


(b)           Other
Property.  Subject to Section 7.14 in the
case of Material Real Property owned by a Loan Party on the Closing Date, (i) cause
all owned and leased real and personal property (other than Excluded Property)
of each Loan Party to be subject at all times to first priority, perfected and,
in the case of real property (whether leased or owned), title insured Liens in
favor of the Administrative Agent to secure the Obligations pursuant to the
terms and conditions of the Collateral Documents, subject in any case to
Permitted Liens and (ii) deliver such other documentation as the
Administrative Agent may reasonably request in connection with the foregoing,
including, without limitation, appropriate UCC-1 financing statements, real
estate title insurance policies, surveys, environmental reports, landlord’s
waivers, certified resolutions and other organizational and authorizing
documents of such Person, favorable opinions of counsel to such Person (which
shall cover, among other things, the legality, validity, binding effect and enforceability
of the documentation referred to above and the perfection of the Administrative
Agent’s Liens thereunder), all in form, content and scope reasonably
satisfactory to the Administrative Agent.


 


7.14         Post-Closing Matters.


 


(a)           Within
sixty (60) days following the Closing Date (or such later date as the
Administrative Agent may agree in its sole discretion), deliver to the
Administrative Agent evidence of termination of all security interest filings
made by Citizens Bank of New Hampshire in IP Rights of the Loan Parties.


 


(b)           Within
ninety (90) days following the Closing Date (or such later date as the
Administrative Agent may agree in its sole discretion), deliver to the
Administrative Agent the following with respect to any Material Real Property
owned by a Loan Party on the Closing Date:


 


(i)            a
fully executed and notarized Mortgage encumbering the fee interest and/or
leasehold interest of any Loan Party in such Material Real Property;


 


(ii)           maps
or plats of an as-built survey of the sites of the real property covered by the
Mortgage for such Material Real Property certified to the Administrative Agent
and the title insurance company issuing the policies referred to in clause (c) below
in a manner reasonably satisfactory to each of the Administrative Agent and
such title insurance company, dated a date reasonably satisfactory to each
of the Administrative Agent and such title insurance company by


 


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an
independent professional licensed land surveyor, which maps or plats and the
surveys on which they are based shall be sufficient to delete any standard
printed survey exception contained in the applicable title policy and be made
in accordance with the Minimum Standard Detail Requirements for Land
Title Surveys jointly established and adopted by the American Land
Title Association and the American Congress on Surveying and Mapping in
2005 with all items from Table A thereof completed, except for Nos. 5, 7(b)(2) and
(3), 11(b), 12, 14, 15 and 17;


 


(iii)          ALTA
mortgagee title insurance policies issued by a title insurance company
reasonably acceptable to the Administrative Agent with respect to such Material
Real Property, assuring the Administrative Agent that the Mortgage for such
Material Real Property creates a valid and enforceable first priority mortgage
lien on such Material Real Property, free and clear of all defects and
encumbrances except Permitted Liens, which title insurance policies shall otherwise
be in form and substance reasonably satisfactory to the Administrative Agent
and shall include such endorsements as are reasonably requested by the
Administrative Agent; and


 


(iv)          evidence
as to (A) whether such Material Real Property is in an area designated by
the Federal Emergency Management Agency as having special flood or mud slide
hazards (a “Flood Hazard Property”) and (B) if such Material Real
Property is a Flood Hazard Property, (1) whether the community in which
such Material Real Property is located is participating in the National Flood
Insurance Program, (2) the applicable Loan Party’s written acknowledgment
of receipt of written notification from the Administrative Agent (a) as to
the fact that such Material Real Property is a Flood Hazard Property and (b) as
to whether the community in which each such Flood Hazard Property is located is
participating in the National Flood Insurance Program and (3) copies of
insurance policies or certificates of insurance of the Borrower and its
Subsidiaries evidencing flood insurance satisfactory to the Administrative
Agent and naming the Administrative Agent as sole loss payee on behalf of the
Lenders.


 


ARTICLE VIII


 


NEGATIVE COVENANTS


 


                So long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation hereunder (other than
contingent indemnification obligations) shall remain unpaid or unsatisfied, or
any Letter of Credit (other than Cash Collateralized Letters of Credit) shall
remain outstanding, no Loan Party shall, nor shall it permit any Subsidiary to,
directly or indirectly:


 


8.01         Liens.


 


Create,
incur, assume or suffer to exist any Lien upon any of its property, assets or
revenues, whether now owned or hereafter acquired, other than the following:


 


(a)           Liens
pursuant to any Loan Document;


 


(b)           Liens
existing on the date hereof and listed on Schedule 8.01 and any renewals
or extensions thereof, provided that the property covered thereby is not
changed;


 


(c)           Liens
(other than Liens imposed under ERISA) for taxes, assessments or governmental
charges or levies not yet due or which are being contested in good faith and by
appropriate proceedings diligently conducted, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance with
GAAP;


 


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


 


(e)           pledges
or deposits in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other social security legislation,
other than any Lien imposed by ERISA;


 


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


 


(g)           easements,
rights-of-way, agreements, reservations, conditions, title exceptions,
restrictions and other similar encumbrances affecting real property which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the applicable Person;


 


(h)           Liens
securing judgments for the payment of money (or appeal or other surety bonds
relating to such judgments) not constituting an Event of Default under Section 9.01(h);


 


(i)            Liens
securing Indebtedness permitted under Section 8.03(e); provided
that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (ii) such Liens attach to
such property concurrently with or within ninety days after the acquisition
thereof;


 


(j)            leases,
subleases, licenses and sublicenses granted to others not interfering in any
material respect with the business of the Borrower or any Subsidiary;


 


(k)           any
interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Agreement;


 


(l)            Liens
deemed to exist in connection with Investments in repurchase agreements
permitted under Section 8.02;


 


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


 


(n)           Liens
of a collection bank arising under Section 4-210 of the Uniform Commercial
Code on items in the course of collection;


 


(o)           Liens
on cash and Cash Equivalents securing the reimbursement obligations of the
Borrower and its Subsidiaries under the Existing Letters of Credit and the
Additional Letters of Credit, provided that the aggregate amount of cash
and Cash Equivalents subject to such Liens shall not exceed 105%  of the aggregate stated amount of the Existing Letters of Credit and the
Additional Letters of Credit;


 


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(p)           Liens
in favor of customs and revenues authorities which secure payment of customs
duties in connection with the importation of goods;


 


(q)           Liens
on insurance premium refunds and insurance proceeds granted in favor of
insurance companies (or their financing affiliates) in connection with the
financing of insurance premiums; and


 


(r)            other
Liens, provided that (i) such Liens secure obligations in an
aggregate amount not to exceed $1,000,000 at any time outstanding and (ii) such
Liens are on specific Property (and are not blanket Liens on all property or
all of a specific category of property).


 


8.02         Investments.


 


Make
any Investments, except:


 


(a)           Investments
in the form of cash or Cash Equivalents;


 


(b)           Investments
existing as of the Closing Date and set forth in Schedule 8.02;


 


(c)           Investments
made prior to the Closing Date in Subsidiaries;


 


(d)           Investments
in any Person that is a Loan Party prior to giving effect to such Investment, provided
that in the case of a loan or advance from a Foreign Subsidiary (i) such
loan or advance shall be subordinated prior to the Obligations in a manner and
to an extent reasonably acceptable to the Administrative Agent and (ii) such
loan or advance shall not be prepaid unless no Default exists immediately prior
to or after giving effect to such prepayment;


 


(e)           Investments
by any Loan Party in any Foreign Subsidiary, provided that the aggregate
amount of all such Investments made in any Loan Year shall not exceed $5
million;


 


(f)            Investments
by any Foreign Subsidiary in any other Foreign Subsidiary;


 


(g)           Investments
consisting of extensions of credit in the nature of accounts receivable or
notes receivable arising from the grant of trade credit in the ordinary course
of business, and Investments received in satisfaction or partial satisfaction
thereof from financially troubled account debtors to the extent reasonably
necessary in order to prevent or limit loss;


 


(h)           Guarantees
permitted by Section 8.03;


 


(i)            Permitted
Acquisitions;


 


(j)            Permitted
Joint Ventures;


 


(k)           Investments
consisting of advances to officers and employees for travel, relocation and
analogous business purposes in the ordinary course of business and consistent
with past practices, provided that the aggregate principal amount of all such
advances to “officers” as defined in Rule 16a-1(f) of the Securities
Exchange Act of 1934 shall not exceed $250,000  at
any time outstanding;


 


(l)            Investments
consisting of non-cash consideration received in connection with Dispositions
(to the extent such non-cash consideration is permitted by Section 8.05);
and


 


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                                                                (m)          other Investments (other than Acquisitions, Investments in Joint
Ventures and Investments in Foreign Subsidiaries) (“Specified Investments”),
provided that the aggregate amount of Specified Investments made in any
Loan Year shall not exceed an amount equal to (i) $15 million less (ii) the
aggregate Cash Payments made by the Borrower and its Subsidiaries in such Loan
Year in connection with all Acquisitions less (iii) the aggregate
amount of Investments in all Joint Ventures made by the Borrower and its
Subsidiaries in such Loan Year.


 


8.03         Indebtedness.


 


Create,
incur, assume or suffer to exist any Indebtedness, except:


 


(a)           Indebtedness
under the Loan Documents;


 


(b)           Indebtedness
set forth in Schedule 8.03 (and renewals, refinancings and extensions
thereof; provided that (i) the amount of such Indebtedness is not
increased at the time of such renewal, refinancing or extension except by an
amount equal to a reasonable premium or other reasonable amount paid, and fees
and expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder and (ii) the
material terms taken as a whole of such renewal, refinancing or extension are
not materially less favorable to the Borrower and its Subsidiaries than the
terms of the Indebtedness being renewed, refinanced or extended);


 


(c)           intercompany
Indebtedness permitted under Section 8.02;


 


(d)           obligations
(contingent or otherwise) existing or arising under any Swap Contract, provided
that (i) such obligations are (or were) entered into by such Person in the
ordinary course of business for the purpose of directly mitigating risks
associated with liabilities, commitments, investments, assets, or property held
or reasonably anticipated to be held by such Person, or changes in the value of
securities issued by such Person, and not for purposes of speculation or taking
a “market view;” and (ii) such Swap Contract does not contain any
provision exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party;


 


(e)           purchase
money Indebtedness (including obligations in respect of Capital Leases or
Synthetic Leases) hereafter incurred to finance the purchase of fixed assets,
and renewals, refinancings and extensions thereof, provided that (i) the
aggregate outstanding principal amount of all such Indebtedness shall not
exceed $5 million at any one time outstanding; and (ii) such Indebtedness
when incurred shall not exceed the purchase price of the asset(s) financed;


 


(f)            Subordinated
Indebtedness, provided that (i) the Borrower shall have delivered
to the Administrative Agent a Pro Forma Compliance Certificate demonstrating
that, upon giving effect to the incurrence of such Subordinated Indebtedness
and the application of the proceeds thereof, the Loan Parties would be in
compliance with the financial covenants set forth in Section 8.11
on a Pro Forma Basis and (ii) the aggregate outstanding principal amount
of all Subordinated Indebtedness shall not exceed $25 million at any time;


 


(g)           Indebtedness
in respect of letters of credit outstanding on the Closing Date (the “Existing
Letters of Credit”); provided that no Existing Letter of Credit
shall be increased or extended after the Closing Date;


 


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(h)           Indebtedness
in respect of letters of credit (including letters of credit issued under the
Letter of Credit Facility Agreement but excluding Letters of Credit) issued for
the account of the Borrower or any Subsidiary after the Closing Date (the “Additional
Letters of Credit”), provided that (i) with respect to each
Additional Letter of Credit, at the time of issuance of such Additional Letter
of Credit (A) the stated amount of such Additional Letter of Credit
(including any automatic increases in the stated amount pursuant to the terms
of such Additional Letter of Credit) exceeds the Availability, (B) the
Borrower shall have delivered to the Administrative Agent a Pro Forma
Compliance Certificate demonstrating that, upon giving effect to the issuance
of such Additional Letter of Credit (and the grant of any Liens in cash
securing such Additional Letter of Credit), the Loan Parties would be in
compliance with (x) the financial covenants set forth in Section 8.11
on a Pro Forma Basis and (y) the Borrowing Base, and (ii) the
aggregate stated amount of all such Additional Letters of Credit (including any
automatic increases in the stated amount pursuant to the terms of such
Additional Letter of Credit) shall not exceed $200 million at any time and (C) no
Default shall then exist;


 


(i)            Indebtedness
assumed or acquired in a Permitted Acquisition, provided that (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (ii) the aggregate
outstanding principal amount of all such Indebtedness shall not exceed $5
million at any time;


 


(j)            Indebtedness
incurred in favor of insurance companies (or their financing affiliates) in
connection with the financing of insurance premiums;


 


(k)           Indebtedness
in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts to the extent incurred in the ordinary course
of business;


 


(l)            other
Indebtedness in an aggregate principal amount not to exceed $3 million at any
one time outstanding; and


 


(m)          Guarantees
with respect to Indebtedness permitted under this Section 8.03.


 


8.04         Fundamental Changes.


 


Merge,
dissolve, liquidate or consolidate with or into another Person, except that so
long as no Default exists or would result therefrom, (a) the Borrower may
merge or consolidate with any of its Subsidiaries provided that the Borrower is
the continuing or surviving Person, (b) any Subsidiary may merge or
consolidate with any other Subsidiary provided that if a Loan Party is a party
to such transaction, the continuing or surviving Person is a Loan Party, (c) subject
to clause (a) above, the Borrower or any Subsidiary may merge with any
other Person in connection with a Permitted Acquisition and (d) any Subsidiary may dissolve, liquidate or wind up
its affairs at any time provided that such dissolution, liquidation or winding
up, as applicable, could not reasonably be expected to have a Material Adverse
Effect.


 


8.05         Dispositions.


 


Make
any Disposition other than:


 


(a)           Dispositions
by the Borrower and its Domestic Subsidiaries to Foreign Subsidiaries, provided
that the aggregate net book value of all of the assets sold or otherwise
disposed of in all such Dispositions shall not exceed $5 million during the
term of this Agreement (it being agreed that (x) if the fair market value
of the property subject to any such Disposition exceeds the consideration paid
in connection with such Disposition, then such excess shall be deemed an
Investment in the applicable Foreign Subsidiary 


 


70

















 


and
(y) if any portion of the consideration paid in connection with any such
Disposition is not cash or Cash Equivalents, such portion shall be deemed an
Investment in the applicable Foreign Subsidiary (provided that any cash or Cash
Equivalents received upon the sale or other disposition of any non-cash
consideration shall be deemed to reduce the amount of such Investment)); and


 


(b)           other
Dispositions provided that (i) at least 75% of the consideration paid in
connection therewith shall be cash or Cash Equivalents paid contemporaneous
with consummation of the transaction and shall be in an amount not less than
the fair market value of the property disposed of, (ii) such transaction
does not involve the sale or other disposition of a minority equity interest in
any Subsidiary, (iii) such transaction does not involve a sale or other
disposition of receivables other than receivables owned by or attributable to
other property concurrently being disposed of in a transaction otherwise
permitted under this Section 8.05, and (iv) the aggregate net
book value of all of the assets sold or otherwise disposed of by the Borrower
and its Subsidiaries in all such transactions in any fiscal year of the
Borrower shall not exceed $5 million.


 


8.06         Restricted Payments.


 


Declare
or make, directly or indirectly, any Restricted Payment, except that:


 


(a)           each
Subsidiary may make Restricted Payments to Persons that own Equity Interests in
such Subsidiary, ratably according to their respective holdings of the type of
Equity Interest in respect of which such Restricted Payment is being made;


 


(b)           the
Borrower and each Subsidiary may declare and make dividend payments or other
distributions payable solely in common Equity Interests of such Person; and


 


(c)           the
Borrower may declare and make Restricted Payments, provided that (i) such
Restricted Payment shall be made on or before the date five (5) Business
Days after the Closing Date, (ii) upon giving effect to such Restricted
Payment (including the incurrence of any Funded Indebtedness in connection
therewith), the Loan Parties would be in compliance with the financial
covenants set forth in Section 8.11 on a Pro Forma Basis, (iii) if
any Credit Extensions are outstanding, the Borrower shall have delivered to the
Administrative Agent a Pro Forma Compliance Certificate demonstrating that the
condition in the foregoing clause (ii) has been satisfied, (iv) no
Default then exists or would exist after giving effect to such Restricted
Payment and (v) the aggregate amount of such Restricted Payments shall not
exceed $90 million.


 


8.07         Change in Nature of
Business.


 


Engage
in any material line of business substantially different from those lines of
business conducted by the Borrower and its Subsidiaries on the Closing Date or
any business substantially related or incidental thereto.


 


8.08         Transactions with
Affiliates and Insiders.


 


Enter
into or permit to exist any transaction or series of transactions with any
officer, director or Affiliate of such Person other than (a) advances of
working capital to any Loan Party, (b) transfers of cash and assets to any
Loan Party, (c) transactions expressly permitted by Section 8.02(k) or Section 8.06 and other
transactions between or among the Borrower and its Subsidiaries expressly
permitted by this Agreement, (d) normal and reasonable compensation and
reimbursement of expenses of officers and directors and (e) except as
otherwise specifically limited in this Agreement, other transactions which are
entered into in the ordinary course of such Person’s business on terms and
conditions substantially as favorable to such 


 


71

















 


Person
as would be obtainable by it in a comparable arms-length transaction with a
Person other than an officer, director or Affiliate.


 


8.09         Burdensome Agreements.


 


Enter
into, or permit to exist, any Contractual Obligation that (a) encumbers or
restricts the ability of any such Person to (i) make Restricted Payments
to any Loan Party, (ii) pay any Indebtedness or other obligation owed to
any Loan Party, (iii) make loans or advances to any Loan Party, (iv) transfer
any of its property to any Loan Party, (v) pledge its property pursuant to
the Loan Documents or any renewals, refinancings, exchanges, refundings or
extension thereof or (vi) act as a Loan Party pursuant to the Loan
Documents or any renewals, refinancings, exchanges, refundings or extension
thereof, except (in respect of any of the matters referred to in clauses (i)-(v) above)
for (1) this Agreement and the other Loan Documents, (2) any document
or instrument governing Indebtedness incurred pursuant to Section 8.03(e),
provided that any such restriction contained therein relates only to the
asset or assets constructed or acquired in connection therewith, (3) any
Permitted Lien or any document or instrument governing any Permitted Lien, provided
that any such restriction contained therein relates only to the asset or assets
subject to such Permitted Lien, (4) customary restrictions and conditions
contained in any agreement relating to the sale of any property permitted under
Section 8.05 pending the consummation of such sale, (5) customary
restrictions imposed by corporate law or (6) customary provisions
restricting assignment, subletting or other transfers contained in leases,
licenses or similar agreements entered into in the ordinary course of business
or (b) requires the grant of any security for any obligation if such
property is given as security for the Obligations.


 


8.10         Use of Proceeds.


 


Use
the proceeds of any Credit Extension, whether directly or indirectly, and
whether immediately, incidentally or ultimately, to purchase or carry margin
stock (within the meaning of Regulation U of the FRB) or to extend credit
to others for the purpose of purchasing or carrying margin stock or to refund
indebtedness originally incurred for such purpose.


 


8.11         Financial Covenants.


 


(a)           Consolidated
Net Leverage Ratio.  Permit the Consolidated Net Leverage Ratio as
of the end of any fiscal quarter of the Borrower to be greater than 3.0:1.0.


 


(b)           Consolidated
Fixed Charge Coverage Ratio.  Permit the Consolidated Fixed Charge Coverage
Ratio as of the end of any fiscal quarter of the Borrower to be less than
1.5:1.0.


 


8.12         Subordinated Indebtedness.


 


(a)           Amend
or modify any Subordinated Indebtedness if such amendment or modification would
add or change any terms in a manner materially adverse to the Borrower or any
Subsidiary (including, without limitation, any amendment or modification that
would shorten the final maturity or average life to maturity or require any payment
to be made sooner than originally scheduled or increase the interest rate
applicable thereto).


 


(b)           Make
(or give any notice with respect thereto) any voluntary or optional payment or
prepayment or redemption or acquisition for value of (including without
limitation, by way of depositing money or securities with the trustee with
respect thereto before due for the purpose of paying when due), refund,
refinance or exchange of any Subordinated Indebtedness.


 


72

















 


(c)           Make
any payment of principal or interest on any Subordinated Indebtedness in
violation of the subordination provisions of such Subordinated Indebtedness.


 


8.13         Organization Documents;
Fiscal Year; Legal Name, State of Formation and Form of Entity.


 


(a)           Amend,
modify or change its Organization Documents in a manner materially adverse to
the Lenders.


 


(b)           Change
its fiscal year.


 


(c)           Without
providing ten (10) days prior written notice to the Administrative Agent,
change its name, state of formation or form of organization.


 


8.14         Ownership of Subsidiaries.


 


Notwithstanding
any other provisions of this Agreement to the contrary, (a) permit any
Person (other than the Borrower or any Wholly Owned Subsidiary) to own any
Equity Interests of any Subsidiary, except to qualify directors where required
by applicable law or to satisfy other requirements of applicable law with
respect to the ownership of Equity Interests of Foreign Subsidiaries, or (b) permit
any Subsidiary to issue or have outstanding any shares of preferred Equity
Interests.


 


8.15         Sale Leasebacks.


 


Enter
into any Sale and Leaseback Transaction.


 


ARTICLE IX


 


EVENTS OF DEFAULT AND REMEDIES


 


9.01         Events of Default.


 


Any
of the following shall constitute an Event of Default:


 


(a)           Non-Payment.  Any
Loan Party fails to pay (i) when and as required to be paid herein, any
amount of principal of any Loan or any L/C Obligation, or (ii) within
three Business Days after the same becomes due, any interest on any Loan or on
any L/C Obligation, or any fee due hereunder, or (iii) within ten days
after the same becomes due, any other amount payable hereunder or under any
other Loan Document; or


 


(b)           Specific
Covenants.


 


(i)            Any Loan Party fails to perform or observe
any term, covenant or agreement contained in any of Section 7.01 or
7.02 and such failure continues for five days; or


 


(ii)           Any Loan Party fails to perform or observe any term, covenant or
agreement contained in any of Section 7.03(a), 7.05(a), 7.10
or 7.11 or Article VIII; or


 


(c)           Other
Defaults.  Any Loan Party fails to perform or observe
any other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty days after the earlier of 


 


73

















 


the
date on which (i) a Responsible Officer of a Loan Party becomes aware of
such failure or (ii) notice thereof shall have been given by the
Administrative Agent or any Lender to the Borrower; or


 


(d)           Representations
and Warranties.  Any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of any Loan Party
herein, in any other Loan Document, or in any document delivered in connection
herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or


 


(e)           Cross-Default.  (i) The
Borrower or any Subsidiary fails to make any payment when due (whether by
scheduled maturity, required prepayment, acceleration, demand, or otherwise)
after the expiration of any applicable cure period in respect of any Material
Indebtedness; (ii) the Borrower or any Subsidiary fails to observe or
perform any other agreement or condition relating to any Material Indebtedness
or contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event occurs, the effect of which default or other event
is to cause, or to permit the holder or holders of such Material Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause, with the
giving of notice if required and after the expiration of any applicable cure
period, such Material Indebtedness to be demanded or to become due or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay, defease or redeem such Material Indebtedness to be
made, prior to its stated maturity; or (iii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract) resulting
from (A) any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap
Contract as to which the Borrower or any Subsidiary is an Affected Party (as so
defined) and, in either event, the Swap Termination Value owed by the Borrower
or such Subsidiary as a result thereof is greater than the Threshold Amount; or


 


(f)            Insolvency
Proceedings, Etc.  The Borrower or any Subsidiary institutes or
consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to
the appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or
consent of such Person and the appointment continues undischarged or unstayed
for sixty calendar days; or any proceeding under any Debtor Relief Law relating
to any such Person or to all or any material part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for
sixty calendar days, or an order for relief is entered in any such proceeding;
or


 


(g)           Inability
to Pay Debts; Attachment.  (i) The Borrower or any Subsidiary
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or
execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within sixty days after its issue or levy; or


 


(h)           Judgments. 
There is entered against the Borrower or any Subsidiary (i) one or
more final judgments or orders for the payment of money in an aggregate amount
(as to all such judgments or orders) exceeding the Threshold Amount (to the
extent not covered by independent third-party insurance as to which the insurer
has been notified of the claim and does not dispute coverage), or (ii) any
one or more non-monetary final judgments that have, or could reasonably be
expected to have a Material Adverse Effect and, in either case, (A) enforcement
proceedings 


 


74

















 


are
commenced by any creditor upon such judgment or order, or (B) there is a
period of sixty consecutive days during which a stay of enforcement of such
judgment, by reason of a pending appeal or otherwise, is not in effect or such
judgment is not otherwise satisfied; or


 


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


 


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


 


(k)           Change
of Control.  There occurs any Change of Control; or


 


(l)            Subordinated
Debt Documentation.  The subordination provisions of the documents
evidencing or governing any Subordinated Indebtedness shall, in whole or in
part, terminate, cease to be effective or cease to be legally valid, binding
and enforceable against any holder of the applicable Subordinated Indebtedness.


 


9.02         Remedies Upon Event of
Default.


 


If
any Event of Default occurs and is continuing, the Administrative Agent shall,
at the request of, or may, with the consent of, the Required Lenders, take any
or all of the following actions:


 


(a)           declare
the commitment of each Lender to make Loans and any obligation of the L/C
Issuer to make L/C Credit Extensions to be terminated, whereupon such
commitments and obligation shall be terminated;


 


(b)           declare
the unpaid principal amount of all outstanding Loans, all interest accrued and
unpaid thereon, and all other amounts owing or payable hereunder or under any
other Loan Document to be immediately due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower;


 


(c)           require
that the Borrower Cash Collateralize the L/C Obligations (in an amount equal to
the then Outstanding Amount thereof); and


 


(d)           exercise
on behalf of itself, the Lenders and the L/C Issuer all rights and remedies
available to it, the Lenders and the L/C Issuer under the Loan Documents;


 


provided, however, that upon 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, the obligation of each Lender
to make Loans and any obligation of the L/C Issuer to make L/C Credit
Extensions shall automatically terminate, the unpaid principal amount of all
outstanding Loans and all interest and other amounts as 


 


75

















 


aforesaid
shall automatically become due and payable, and the obligation of the Borrower
to Cash Collateralize the L/C Obligations as aforesaid shall automatically
become effective, in each case without further act of the Administrative Agent
or any Lender.


 


9.03         Application of Funds.


 


After
the exercise of remedies provided for in Section 9.02 (or after the
Loans have automatically become immediately due and payable and the L/C
Obligations have automatically been required to be Cash Collateralized as set
forth in the proviso to Section 9.02), any amounts received on
account of the Obligations shall be applied by the Administrative Agent in the
following order:


 


First, to
payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts (including reasonable and documented fees, charges
and disbursements of counsel to the Administrative Agent and amounts payable
under Article III) payable to the Administrative Agent in its
capacity as such;


 


Second, to
payment of that portion of the Obligations constituting fees, indemnities and
other amounts (other than principal, interest and Letter of Credit Fees)
payable to the Lenders and the L/C Issuer (including the reasonable and
documented fees, charges and disbursements of counsel to the respective Lenders
and the L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the respective amounts described in this clause Second
payable to them;


 


Third, to
payment of that portion of the Obligations constituting accrued and unpaid
Letter of Credit Fees and interest on the Loans and L/C Borrowings and fees, premiums and scheduled periodic
payments, and any interest accrued thereon, due under any Swap Contract between
the Borrower or any Subsidiary and any Lender or any Affiliate of a Lender to
the extent such Swap Contract is permitted by Section 8.03(d), ratably
among the Lenders (and, in the case of such Swap Contracts, Affiliates of
Lenders) and the L/C Issuer in proportion to the respective amounts described
in this clause Third held by them;


 


Fourth, to (a) payment
of that portion of the Obligations constituting unpaid principal of the Loans
and L/C Borrowings, (b) payment of breakage,
termination or other payments, and any interest accrued thereon, due under any
Swap Contract between the Borrower or any Subsidiary and any Lender or any
Affiliate of a Lender to the extent such Swap Contract is permitted by Section 8.03(d),
(c) payments of amounts due
under any Treasury Management Agreement between the Borrower or any Subsidiary
and any Lender or any Affiliate of a Lender and (d) Cash
Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit, ratably among the Lenders (and, in the
case of such Swap Contracts and Treasury Management Agreements, Affiliates of
Lenders) and the L/C Issuer in proportion to the respective amounts described
in this clause Fourth held by them; and


 


Last, the
balance, if any, after all of the Obligations (other than contingent
indemnification obligations) have been paid in full, to the Borrower or as
otherwise required by Law.


 


Subject
to Section 2.03(c), amounts used to Cash Collateralize the
aggregate undrawn amount of Letters of Credit pursuant to clause Fourth
above shall be applied to satisfy drawings under such Letters of Credit as they
occur.  If any amount remains on deposit
as Cash Collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other Obligations, if any,
in the order set forth above.


 


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ARTICLE X


 


ADMINISTRATIVE AGENT


 


10.01       Appointment and Authority.


 


Each
of the Lenders and the L/C Issuer hereby irrevocably appoints Bank of America
to act on its behalf as the Administrative Agent hereunder and under the other
Loan Documents and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto.  The
provisions of this Article are solely for the benefit of the
Administrative Agent, the Lenders and the L/C Issuer, and no Loan Party shall
have rights as a third party beneficiary of any of such provisions.


 


The
Administrative Agent shall also act as the “collateral agent” under the Loan Documents, and each of the
Lenders (in its capacities as a Lender, Swing Line Lender (if applicable) and,
if applicable, party to any Swap Contract or Treasury Management Agreement with
the Borrower or any Subsidiary) and the L/C Issuer hereby irrevocably appoints
and authorizes the Administrative Agent to act as the agent of such Lender and
the L/C Issuer for purposes of acquiring, holding and enforcing any and all
Liens on Collateral granted by any of the Loan Parties to secure any of the
Obligations, together with such powers and discretion as are reasonably
incidental thereto.  In this connection,
the Administrative Agent, as “collateral agent” and any co-agents, sub-agents
and attorneys-in-fact appointed by the Administrative Agent pursuant to Section 10.05
for purposes of holding or enforcing any Lien on the Collateral (or any portion
thereof) granted under the Collateral Documents, or for exercising any rights
and remedies thereunder at the direction of the Administrative Agent), shall be
entitled to the benefits of all provisions of this Article X and Article XI
(including Section 11.04(c), as though such co-agents, sub-agents
and attorneys-in-fact were the “collateral agent” under the Loan Documents) as
if set forth in full herein with respect thereto.


 


10.02       Rights as a Lender.


 


The
Person serving as the Administrative Agent hereunder shall have the same rights
and powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity.  Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial
advisor or in any other advisory capacity for and generally engage in any kind
of business with the Borrower or any Subsidiary or other Affiliate thereof as
if such Person were not the Administrative Agent hereunder and without any duty
to account therefor to the Lenders.


 


10.03       Exculpatory Provisions.


 


The
Administrative Agent shall not have any duties or obligations except those
expressly set forth herein and in the other Loan Documents.  Without limiting the generality of the
foregoing, the Administrative Agent:


 


(a)           shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing;


 


77

















 


(b)           shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and


 


(c)           shall
not, except as expressly set forth herein and in the other Loan Documents, have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Loan Party or any of its Affiliates that is
communicated to or obtained by the Person serving as the Administrative Agent
or any of its Affiliates in any capacity.


 


The
Administrative Agent shall not be liable for any action taken or not taken by
it (i) with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary, or as the Administrative
Agent shall believe in good faith shall be necessary, under the circumstances
as provided in Sections 11.01 and 9.02) or (ii) in the
absence of its own gross negligence, willful misconduct or bad faith.  The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until notice describing such
Default is given to the Administrative Agent by the Borrower, a Lender or the
L/C Issuer.


 


The
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or
in connection with this Agreement or any other Loan Document, (ii) the
contents of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance
or observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, any
other Loan Document or any other agreement, instrument or document, or the
creation, perfection or priority of any Lien purported to be created by the
Collateral Documents, (v) the value or the sufficiency of any Collateral,
or (vi) the satisfaction of any condition set forth in Article V
or elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Administrative Agent.


 


10.04       Reliance by Administrative Agent.


 


The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by
the proper Person.  The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to have been made by the proper Person, and shall not incur any
liability for relying thereon.  In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Administrative Agent may
presume that such condition is satisfactory to such Lender or the L/C Issuer
unless the Administrative Agent shall have received notice to the contrary from
such Lender or the L/C Issuer prior to the making of such Loan or the issuance
of such Letter of Credit.  The
Administrative Agent may consult with legal counsel (who may be counsel for the
Loan Parties), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with
the advice of any such counsel, accountants or experts.


 


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10.05       Delegation of Duties.


 


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


 


10.06       Resignation of Administrative Agent.


 


The
Administrative Agent may at any time give notice of its resignation to the
Lenders, the L/C Issuer and the Borrower. 
Upon receipt of any such notice of resignation, the Required Lenders
shall have the right, subject to the consent of the Borrower (such consent not
to be unreasonably withheld or delayed), to appoint a successor, which shall be
a bank with an office in the United States, or an Affiliate of any such bank
with an office in the United States.  If
no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Administrative Agent meeting the qualifications set forth above and
subject to the consent of the Borrower (such consent not to be unreasonably
withheld or delayed); provided that if the Administrative Agent shall
notify the Borrower and the Lenders that no qualifying Person has accepted such
appointment, then such resignation shall nonetheless become effective in
accordance with such notice and (a) the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder and under the
other Loan Documents (except that in the case of any collateral security held
by the Administrative Agent on behalf of the Lenders or the L/C Issuer under
any of the Loan Documents, the retiring Administrative Agent shall continue to
hold such collateral security until such time as a successor Administrative
Agent is appointed) and (b) all payments, communications and
determinations provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Lender and the L/C Issuer directly, until
such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section.  Upon
the acceptance of a successor’s appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents (if not
already discharged therefrom as provided above in this Section).  The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between the Borrower and such
successor.  After the retiring
Administrative Agent’s resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 11.04
shall continue in effect for the benefit of such retiring Administrative Agent,
its sub-agents and their respective Related Parties in respect of any actions
taken or omitted to be taken by any of them while the retiring Administrative
Agent was acting as Administrative Agent.


 


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


 


79

















 


or
make other arrangements satisfactory to the retiring L/C Issuer to effectively
assume the obligations of the retiring L/C Issuer with respect to such Letters
of Credit.


 


10.07       Non-Reliance on Administrative Agent and Other
Lenders.


 


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


 


10.08       No Other Duties; Etc.


 


Anything
herein to the contrary notwithstanding, none of the bookrunners, arrangers,
syndication agents, documentation agents or co-agents shall have any powers,
duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Administrative Agent,
a Lender or the L/C Issuer hereunder.


 


10.09       Administrative Agent May File Proofs of Claim.


 


In
case of the pendency of any proceeding under any Debtor Relief Law or any other
judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation 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 Borrower) 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, L/C Obligations and all
other Obligations arising under the Loan Documents 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, the L/C Issuer and the Administrative Agent
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Lenders, the L/C Issuer and the Administrative Agent and
their respective agents and counsel and all other amounts due the Lenders, the
L/C Issuer and the Administrative Agent under Sections 2.03(i) and (j), 2.09 and 11.04)
allowed in such judicial proceeding; 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 and the L/C Issuer to make such payments to the Administrative Agent
and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders and the L/C Issuer, 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 2.09 and 11.04.


 


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 or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or the L/C 


 


80

















 


Issuer
to authorize the Administrative Agent to vote in respect of the claim of any
Lender or the L/C Issuer in any such proceeding.


 


10.10       Collateral and Guaranty Matters.


 


The Lenders and the L/C Issuer irrevocably authorize
the Administrative Agent, at its option and in its discretion,


 


(a)           to release any Lien on any property granted
to or held by the Administrative Agent under any Loan Document (i) upon
termination of the Aggregate Revolving Commitments,  payment in full of all Obligations (other
than contingent indemnification obligations) and the expiration or termination
of all Letters of Credit (other than Cash Collateralized Letters of Credit), (ii) that
is transferred or to be transferred as part of or in connection with any
Disposition permitted hereunder or under any other Loan Document or any
Involuntary Disposition, or (iii) as approved in accordance with Section 11.01;


 


(b)           to subordinate any Lien on any property
granted to or held by the Administrative Agent under any Loan Document to the
holder of any Lien on such property that is permitted by Section 8.01(i);


 


(c)           to release any Guarantor from its obligations
under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder; and


 


(d)           to enter into and perform its obligations
under the Intercreditor Agreement.


 


Upon request by the Administrative Agent at any
time, the Required Lenders will confirm in writing the Administrative Agent’s
authority to release or subordinate its interest in particular types or items
of property, or to release any Guarantor from its obligations under the
Guaranty, or to enter into and perform its obligations under the Intercreditor
Agreement, in each case pursuant to this Section 10.10.


 


10.11       Intercreditor Agreement.


 


Each
of the Lenders hereby acknowledges that it has received and reviewed the
Intercreditor Agreement and agrees to be bound by the terms thereof.  Each Lender (and each Person that becomes a
Lender hereunder pursuant to Section 11.06 or Section 2.01(b))
hereby (i) acknowledges that Bank of America is acting under the
Intercreditor Agreement in multiple capacities as the Administrative Agent and
the administrative agent under the Letter of Credit Facility Agreement and (ii) waives
any conflict of interest arising out of Bank of America acting in such
capacities in accordance with the terms and conditions thereof, now
contemplated or arising hereafter thereunder and, to such extent, agrees not to
assert against Bank of America any claims, causes of action, damages or
liabilities of whatever kind or nature relating thereto.  Each Lender (and each Person that becomes a
Lender hereunder pursuant to Section 11.06 or Section 2.01(b))
hereby agrees and acknowledges that Bank of America shall enter into the
Intercreditor Agreement in such capacities and agrees that Bank of America, in
its various capacities thereunder, may take such actions as are contemplated by
the terms of the Intercreditor Agreement.


 


81

















 


ARTICLE XI


 


MISCELLANEOUS


 


11.01       Amendments, Etc.


 


No
amendment or waiver of any provision of this Agreement or any other Loan
Document, and no consent to any departure by any Loan Party therefrom, shall be
effective unless in writing signed by the Required Lenders and the applicable
Loan Party, and acknowledged by the Administrative Agent, and each such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, further, that


 


(a)           no
such amendment, waiver or consent shall:


 


(i)            extend or increase the Commitment of a Lender
(or reinstate any Commitment terminated pursuant to Section 9.02)
without the written consent of such Lender whose Commitment is being extended
or increased (it being understood and agreed that a waiver of any condition
precedent set forth in Section 5.02 or of any Default or a
mandatory reduction in Commitments is not considered an extension or increase
in Commitments of any Lender);


 


(ii)           postpone any date fixed by this Agreement or any other Loan Document
for any payment (excluding mandatory prepayments) of principal, interest, fees
or other amounts due to the Lenders (or any of them) or any scheduled reduction
of the Commitments hereunder or under any other Loan Document without the
written consent of each Lender entitled to receive such payment or whose
Commitments are to be reduced;


 


(iii)          reduce the principal of, or the rate of interest specified herein on,
any Loan or L/C Borrowing, or (subject to clause (i) of the final proviso
to this Section 11.01) any fees or other amounts payable hereunder
or under any other Loan Document without the written consent of each Lender
entitled to receive such amount; provided, however, that only the
consent of the Required Lenders shall be necessary to (A) amend the
definition of “Default Rate” or waive any obligation of the Borrower to pay
interest or Letter of Credit Fees at the Default Rate or (B) to amend any
financial covenant hereunder (or any defined term used therein) even if the
effect of such amendment would be to reduce the rate of interest on any Loan or
L/C Borrowing or to reduce any fee payable hereunder;


 


(iv)          change Section 2.13 or Section 9.03 in a manner
that would alter the pro rata sharing of payments required thereby without the
written consent of each Lender directly affected thereby;


 


(v)           change any provision of this Section 11.01(a) or the definition of “Required Lenders”
without the written consent of each Lender directly affected thereby;


 


(vi)          release all or substantially all of the Collateral without the written
consent of each Lender whose Obligations are secured by such Collateral;


 


(vii)         release the Borrower without the consent of each Lender, or, except in
connection with a transaction permitted under Section 8.04 or Section 8.05,
all or 


 


82

















 


substantially
all of the value of the Guaranty without the written consent of each Lender
whose Obligations are guarantied thereby, except to the extent such release is
permitted pursuant to Section 10.10 (in which case such release may
be made by the Administrative Agent acting alone); or


 


(b)           unless
also signed by the L/C Issuer, no amendment, waiver or consent shall affect the
rights or duties of the L/C Issuer under this Agreement or any Issuer Document
relating to any Letter of Credit issued or to be issued by it;


 


(c)           unless
also signed by the Swing Line Lender, no amendment, waiver or consent shall
affect the rights or duties of the Swing Line Lender under this Agreement; and


 


(d)           unless
also signed by the Administrative Agent, no amendment, waiver or consent shall
affect the rights or duties of the Administrative Agent under this Agreement or
any other Loan Document;


 


provided, however, that notwithstanding
anything to the contrary herein, (i) each of the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed only
by the parties thereto, (ii) no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that
the Commitment of such Lender may not be increased or extended without the
consent of such Lender, (iii) each Lender is entitled to vote as such
Lender sees fit on any bankruptcy reorganization plan that affects the Loans,
and each Lender acknowledges that the provisions of Section 1126(c) of
the Bankruptcy Code of the United States supersedes the unanimous consent
provisions set forth herein and (iv) the Required Lenders shall determine
whether or not to allow a Loan Party to use cash collateral in the context of a
bankruptcy or insolvency proceeding and such determination shall be binding on
all of the Lenders.


 


11.02       Notices; Effectiveness; Electronic Communications.


 


(a)           Notices
Generally.  Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:


 


(i)            if to any Loan Party, the Administrative
Agent, the L/C Issuer or the Swing Line Lender, to the address, telecopier
number, electronic mail address or telephone number specified for such Person
on Schedule 11.02; and


 


(ii)           if to any other Lender, to the address,
telecopier number, electronic mail address or telephone number specified in its
Administrative Questionnaire.


 


Notices
and other communications sent by hand or overnight courier service, or mailed
by certified or registered mail, shall be deemed to have been given when
received; notices and other communications sent by telecopier shall be deemed
to have been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient).  Notices and other communications delivered
through electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).


 


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


 


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


 


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


 


(d)           Change
of Address, Etc.  Each of the Borrower, the Administrative
Agent, the L/C Issuer and the Swing Line Lender may change its address,
telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. 
Each other Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the Borrower, the
Administrative Agent, the L/C Issuer and the Swing Line Lender.  In addition, each Lender agrees to notify the
Administrative Agent from time to time to ensure that the Administrative Agent
has on record (i) an effective address, contact name, telephone number,
telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such
Lender.  Furthermore, each Public Lender
agrees to cause at least one individual at or on behalf of such Public Lender
to at all times have selected the “Private Side Information” or similar
designation on the content declaration screen of the Platform in order to
enable such Public Lender or its delegate, in accordance with such Public
Lender’s compliance procedures and applicable Law, including United States 


 


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Federal
and state securities Laws, to make reference to Borrower Materials that are not
made available through the “Public Side Information” portion of the Platform
and that may contain material non-public information with respect to the
Borrower or its securities for purposes of United States Federal or state
securities laws.


 


(e)           Reliance
by Administrative Agent, L/C Issuer and Lenders.  The Administrative Agent, the L/C
Issuer and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of any Loan Party even if (i) such notices were not
made in a manner specified herein, were incomplete or were not preceded or
followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation
thereof.  The Loan Parties shall
indemnify the Administrative Agent, the L/C Issuer, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given by
or on behalf of a Loan Party.  All
telephonic notices to and other telephonic communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.


 


11.03       No Waiver; Cumulative Remedies; Enforcement.


 


No
failure by any Lender, the L/C Issuer or the Administrative Agent to exercise,
and no delay by any such Person in exercising, 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 or under
any other Loan Document preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. 
The rights, remedies, powers and privileges herein provided, and
provided under each other Loan Document are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.


 


Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan
Documents against the Loan Parties or any of them shall be vested exclusively
in, and all actions and proceedings at law in connection with such enforcement
shall be instituted and maintained exclusively by, the Administrative Agent in
accordance with Section 9.02 for the benefit of all the Lenders and
the L/C Issuer; provided, however, that the foregoing shall not
prohibit (a) the Administrative Agent from exercising on its own behalf
the rights and remedies that inure to its benefit (solely in its capacity as
Administrative Agent) hereunder and under the other Loan Documents, (b) the
L/C Issuer or the Swing Line Lender from exercising the rights and remedies
that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line
Lender, as the case may be) hereunder and under the other Loan Documents, (c) any
Lender from exercising setoff rights in accordance with Section 11.08
(subject to the terms of Section 2.13), or (d) any Lender from
filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Loan Party under any Debtor
Relief Law; and provided, further, that if at any time there is
no Person acting as Administrative Agent hereunder and under the other Loan
Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Administrative Agent pursuant to Section 9.02 and (ii) in
addition to the matters set forth in clauses (b), (c) and (d) of the
preceding proviso and subject to Section 2.13, any Lender may, with
the consent of the Required Lenders, enforce any rights and remedies available
to it and as authorized by the Required Lenders.


 


11.04       Expenses; Indemnity; and Damage Waiver.


 


(a)           Costs
and Expenses.  The Loan Parties shall pay (i) all
reasonable and documented out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates (including the reasonable and documented fees, charges
and disbursements of counsel for the Administrative Agent), in connection 


 


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with
the syndication of the credit facilities provided for herein, the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all reasonable and
documented out-of-pocket expenses incurred by the L/C Issuer in connection with
the issuance, amendment, renewal or extension of any Letter of Credit or any
demand for payment thereunder and (iii) all reasonable and documented
out-of-pocket expenses incurred by the Administrative Agent, any Lender or the
L/C Issuer (including the reasonable and documented fees, charges and
disbursements of any counsel for the Administrative Agent, any Lender or the
L/C Issuer), and shall pay all fees and time charges for attorneys who may be
employees of the Administrative Agent, any Lender or the L/C Issuer, in
connection with the enforcement or protection of its rights (A) in
connection with this Agreement and the other Loan Documents, including its
rights under this Section, or (B) in connection with the Loans made or
Letters of Credit issued hereunder, including all such out-of-pocket expenses
incurred during an Event of Default in connection with any workout, restructuring
or negotiations in respect of such Loans or Letters of Credit.


 


(b)           Indemnification
by the Loan Parties.  The Loan Parties shall indemnify the
Administrative Agent (and any sub-agent thereof), each Lender and the L/C
Issuer, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the reasonable and documented fees, charges and disbursements
of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who
may be employees of any Indemnitee, incurred by any Indemnitee or asserted
against any Indemnitee by any third party or by any Loan Party arising out of,
in connection with, or as a result of (i) the execution or delivery of
this Agreement, any other Loan Document or any agreement or instrument
contemplated hereby or thereby, the performance by the parties hereto of their
respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, or, in the case of the
Administrative Agent (and any sub-agent thereof) and its Related Parties only,
the administration of this Agreement and the other Loan Documents (including in
respect of any matters addressed in Section 3.01), (ii) any
Loan or Letter of Credit or the use or proposed use of the proceeds therefrom
(including any refusal by the L/C Issuer to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any
actual or alleged presence or release of Hazardous Materials on or from any
property owned or operated by a Loan Party or any of its Subsidiaries, or any
Environmental Liability related in any way to a Loan Party or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory, whether brought by a third party or by any
Loan Party, and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses resulted
from (x) the gross negligence, willful misconduct or bad faith of such
Indemnitee or any Related Party of such Indemnitee or (y) a claim brought
by one Indemnitee against another Indemnitee except with respect to any claim
brought by or initiated against the Borrower or any Subsidiary with respect to
any Indemnitee.


 


(c)           Reimbursement
by Lenders.  To the extent that the Loan Parties for any
reason fail to pay any amount required under subsection (a) or (b) of
this Section to be paid by them to the Administrative Agent (or any
sub-agent thereof), the L/C Issuer or any Related Party of any of the
foregoing, each Lender severally agrees to pay to the Administrative Agent (or
any such sub-agent), the L/C Issuer or such Related Party, as the case may be,
such Lender’s Applicable Percentage (determined as of the time that the
applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount, provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred
by or asserted against the Administrative Agent (or any such sub-agent)


 


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or
the L/C Issuer in its capacity as such, or against any Related Party of any of
the foregoing acting for the Administrative Agent (or any such sub-agent) or
L/C Issuer in connection with such capacity. 
The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.12(d).


 


(d)           Waiver
of Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, no party hereto shall assert, and each party hereto hereby waives, any
claim against any other party hereto, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of Credit or
the use of the proceeds thereof.  No
Indemnitee shall be liable for any damages arising from the use by unintended
recipients of any information or other materials distributed to such unintended
recipients by such Indemnitee through telecommunications, electronic or other
information transmission systems in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby other than
for direct or actual damages resulting from the gross negligence, willful
misconduct or bad faith of such Indemnitee.


 


(e)           Payments.  All
amounts due under this Section shall be payable not later than ten
Business Days after demand (accompanied by a reasonably detailed written
invoice) therefor.


 


(f)            Survival.  The
agreements in this Section shall survive the resignation of the
Administrative Agent, the L/C Issuer and the Swing Line Lender, the replacement
of any Lender, the termination of the Commitments and the repayment,
satisfaction or discharge of all the other Obligations.


 


11.05       Payments Set Aside.


 


To
the extent that any payment by or on behalf of any Loan Party is made to the
Administrative Agent, the L/C Issuer or any Lender, or the Administrative
Agent, the L/C Issuer or any Lender exercises its right of setoff, and such
payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent,
the L/C Issuer or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such setoff had not occurred, and (b) each Lender and the L/C Issuer
severally agrees to pay to the Administrative Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the
Administrative Agent, plus interest thereon from the date of such demand to the
date such payment is made at a rate per annum equal to the Federal Funds Rate
from time to time in effect.  The
obligations of the Lenders and the L/C Issuer under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the
termination of this Agreement.


 


11.06       Successors and Assigns.


 


                (a)           Successors and Assigns Generally.  The
provisions of this Agreement and the other Loan Documents shall be binding upon
and inure to the benefit of the parties hereto and thereto and their respective
successors and assigns permitted hereby, except that the Borrower may not
assign or otherwise transfer any of its rights or obligations hereunder or
thereunder without the prior written consent of the Administrative Agent and
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of this Section or
(iii) by way of pledge or assignment of a security interest subject to the
restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and
void).  


 


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Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in subsection (d) of
this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the L/C Issuer and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.


 


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


 


                (i)            Minimum Amounts.


 


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


 


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


 


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


 


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


 


                (A)          the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (1) an Event of Default has
occurred and is continuing at the time of such assignment or (2) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;


 


                (B)           the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in respect
of any Revolving Commitment if such assignment is to a Person that is not a
Lender, an Affiliate of a Lender or an Approved Fund; and


 


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


 


                (D)          the consent of the Swing Line Lender (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment in
respect of Revolving Loans and Revolving Commitments.


 


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


 


                (v)           No Assignment to Borrower.  No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries.


 


                (vi)          No Assignment to Natural Persons.  No such assignment shall be made to a natural
person.


 


Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date
specified in each Assignment and Assumption, the assignee thereunder shall be a
party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 3.01, 3.04, 3.05
and 11.04 with respect to facts and circumstances occurring prior to the
effective date of such assignment).  Upon
request, the Borrower (at its expense) shall execute and deliver a Note to the
assignee Lender.  Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this subsection shall be treated for purposes of this Agreement
as a sale by such Lender of a participation in such rights and obligations in
accordance with subsection (d) of this Section.


 


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


 


                (d)           Participations.  Any
Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a
natural person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender’s participations in L/C
Obligations and/or Swing 


 


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Line
Loans) owing to it); provided that (i) such Lender’s obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (iii) the Borrower, the Administrative Agent, the other
Lenders and the L/C Issuer shall continue to deal solely and directly with such
Lender in connection with such Lender’s rights and obligations under this
Agreement.  Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, waiver or other
modification described in clauses (i) through (vii) of the Section 11.01(a) that affects such Participant.  Subject to subsection (e) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 3.01, 3.04 and 3.05  to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to subsection (b) of this
Section.  To the extent permitted by Law,
each Participant also shall be entitled to the benefits of Section 11.08  as though it were a Lender, provided such Participant
agrees to be subject to Section 2.13 as though it were a Lender.


 


                (e)           Limitation on Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Section 3.01
or 3.04  than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. 
A Participant that would be a Foreign Lender if it were a Lender shall
not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender.


 


                (f)            Certain Pledges.  Any
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement (including under its Note, if any)
to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.


 


(g)           Resignation
as L/C Issuer or Swing Line Lender after Assignment. 
Notwithstanding anything to the contrary contained herein, if at any
time Bank of America assigns all of its Revolving Commitment and Revolving
Loans pursuant to subsection (b) above, Bank of America may, (i) upon
thirty days’ notice to the Borrower and the Lenders, resign as L/C Issuer
and/or (ii) upon thirty days’ notice to the Borrower, resign as Swing Line
Lender.  In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; provided, however, that no failure by the Borrower to
appoint any such successor shall affect the resignation of Bank of America as
L/C Issuer or Swing Line Lender, as the case may be.  If Bank of America resigns as L/C Issuer, it
shall retain all the rights, powers, privileges and duties of the L/C Issuer
hereunder with respect to all Letters of Credit outstanding as of the effective
date of its resignation as L/C Issuer and all L/C Obligations with respect
thereto (including the right to require the Lenders to make Base Rate Loans or
fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)).  If Bank of America resigns as Swing Line
Lender, it shall retain all the rights of the Swing Line Lender provided for
hereunder with respect to Swing Line Loans made by it and outstanding as of the
effective date of such resignation, including the right to require the Lenders
to make Base Rate Loans or fund risk participations in outstanding Swing Line
Loans pursuant to Section 2.04(c). 
Upon the appointment of a successor L/C Issuer and/or Swing Line Lender,
(1) such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line
Lender, as the case may be, and (2) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or make 


 


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other
arrangements satisfactory to Bank of America to effectively assume the
obligations of Bank of America with respect to such Letters of Credit.


 


11.07       Treatment of Certain Information; Confidentiality.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates and to its and its
Affiliates’ respective partners, directors, officers, employees, agents,
trustees, advisors and representatives in connection with the Loan Documents
and the transactions contemplated thereby (it being understood that the Persons
to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b) to
the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, provided that such Person disclosing such Information shall, to the
extent practical (but without liability for failure to do so), give the Loan
Parties advance notice of such disclosure to the extent not prohibited by law, (d) to
any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement or any Eligible
Assignee invited to become a Lender pursuant to Section 2.01(b) or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to a Loan Party and its obligations, (g) with the consent of the Borrower
or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes
available to the Administrative Agent, any Lender, the L/C Issuer or any of
their respective Affiliates on a nonconfidential basis from a source other than
the Borrower.


 


For
purposes of this Section, “Information” means all information received
from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary
or any of their respective businesses, other than any such information that is
available to the Administrative Agent, any Lender or the L/C Issuer on a
nonconfidential basis prior to disclosure by the Borrower or any
Subsidiary.  Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.


 


Each
of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the
Information may include material non-public information concerning the Borrower
or a Subsidiary, as the case may be, (b) it has developed compliance
procedures regarding the use of material non-public information and (c) it
will handle such material non-public information in accordance with applicable
Law, including United States federal and state securities Laws.


 


11.08       Set-off.


 


If
an Event of Default shall have occurred and be continuing, each Lender, the L/C
Issuer and each of their respective Affiliates is hereby authorized at any time
and from time to time, after obtaining the prior written consent of the
Administrative Agent, to the fullest extent permitted by applicable law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other
obligations (in whatever currency) at any time owing by such Lender, the L/C
Issuer or any such Affiliate to or for the credit or the account of any Loan
Party against any and all of the obligations of such Loan Party then due and
owing under this Agreement or any 


 


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other
Loan Document to such Lender or the L/C Issuer, irrespective of whether or not
such Lender or the L/C Issuer shall have made any demand under this Agreement
or any other Loan Document and although such obligations of such Loan Party are
owed to a branch or office of such Lender or the L/C Issuer different from the
branch or office holding such deposit or obligated on such indebtedness.  The rights of each Lender, the L/C Issuer and
their respective Affiliates under this Section are in addition to other
rights and remedies (including other rights of setoff) that such Lender, the
L/C Issuer or their respective Affiliates may have.  Each Lender and the L/C Issuer agrees to
notify the Borrower and the Administrative Agent promptly after any such setoff
and application, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


11.09       Interest Rate Limitation.


 


Notwithstanding
anything to the contrary contained in any Loan Document, the interest paid or
agreed to be paid under the Loan Documents shall not exceed the maximum rate of
non-usurious interest permitted by applicable Law (the “Maximum Rate”).  If the Administrative Agent or any Lender
shall receive interest in an amount that exceeds the Maximum Rate, the excess
interest shall be applied to the principal of the Loans or, if it exceeds such
unpaid principal, refunded to the Borrower. 
In determining whether the interest contracted for, charged, or received
by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable Law, (a) characterize any
payment that is not principal as an expense, fee, or premium rather than
interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the contemplated term of the Obligations hereunder.


 


11.10       Counterparts; Integration; Effectiveness.


 


This
Agreement may be executed in counterparts (and by different parties hereto in
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract.  This Agreement and the other Loan Documents
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof.  Except as provided in Section 5.01,
this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof that, when taken together, bear the signatures of each of
the other parties hereto.  Delivery of an
executed counterpart of a signature page of this Agreement by telecopy or
other electronic imaging means shall be effective as delivery of a manually
executed counterpart of this Agreement.


 


11.11       Survival of Representations and Warranties.


 


All
representations and warranties made hereunder and in any other Loan Document or
other document delivered pursuant hereto or thereto or in connection herewith
or therewith shall survive the execution and delivery hereof and thereof.  Such representations and warranties have been
or will be relied upon by the Administrative Agent and each Lender, regardless
of any investigation made by the Administrative Agent or any Lender or on their
behalf and notwithstanding that the Administrative Agent or any Lender may have
had notice or knowledge of any Default at the time of any Credit Extension, and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder (other than contingent indemnification obligations) shall
remain unpaid or unsatisfied or any Letter of Credit (other than Cash
Collateralized Letters of Credit) shall remain outstanding.


 


92

















 


11.12       Severability.


 


If
any provision of this Agreement or the other Loan Documents is held to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan
Documents shall not be affected or impaired thereby and (b) the parties
shall endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions.  The invalidity of a
provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


11.13       Replacement of Lenders.


 


If
(i) any Lender requests compensation under Section 3.04, (ii) the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01,
(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 11.01
but requires unanimous consent of all Lenders or all Lenders directly affected
thereby (as applicable) and, or (iv) any Lender is a Defaulting Lender,
then the Borrower may, at its sole expense and effort, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in, and consents required by, Section 11.06), all of its
interests, rights and obligations under this Agreement and the related Loan
Documents to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment), provided that:


 


(a)           the
Borrower or such assignee shall have paid to the Administrative Agent the
assignment fee specified in Section 11.06(b);


 


(b)           such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans and L/C Advances, accrued interest thereon, accrued fees
and all other amounts payable to it hereunder and under the other Loan
Documents (including any amounts under Section 3.05) from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts);


 


(c)           in
the case of any such assignment resulting from a claim for compensation under Section 3.04
or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments
thereafter;


 


(d)           such
assignment does not conflict with applicable Laws; and


 


(e)           in the case of any such 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, the applicable
replacement bank, financial institution or Fund consents to the proposed
change, waiver, discharge or termination; provided that the failure by
such Non-Consenting Lender to execute and deliver an Assignment and Assumption
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 L/C Obligations and Swing Line Loans
pursuant to this Section 11.13 shall nevertheless be effective
without the execution by such Non-Consenting Lender of an Assignment and
Assumption.


 


93

















 


A
Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.


 


11.14       Governing Law; Jurisdiction; Etc.


 


(a)           GOVERNING
LAW.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES THEREOF.


 


(b)           SUBMISSION
TO JURISDICTION.  EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY
AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK,
AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO
IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE
COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT.  EACH OF THE PARTIES HERETO AGREES
THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.  NOTHING IN THIS
AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE
ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO
BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY
JURISDICTION.


 


(c)           WAIVER
OF VENUE.  EACH PARTY HERETO IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT.


 


(d)           SERVICE
OF PROCESS.  EACH PARTY HERETO IRREVOCABLY CONSENTS TO
SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 11.02.  NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
APPLICABLE LAW.


 


11.15       Waiver of Right to Trial by Jury.


 


EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS 


 


94

















 


CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.


 


11.16       No Advisory or Fiduciary Responsibility.


 


In
connection with all aspects of each transaction contemplated hereby (including
in connection with any amendment, waiver or other modification hereof or of any
other Loan Document), each of the Loan Parties acknowledges and agrees, and acknowledges its Affiliates’
understanding, that: (i) (A) the arranging and other services
regarding this Agreement provided by the Administrative Agent and the Arranger are arm’s-length commercial
transactions between the Loan Parties and its Affiliates, on the one hand, and the Administrative Agent and the Arranger, on the other hand, (B) each of the Loan Parties has consulted
its own legal, accounting, regulatory and tax advisors to the extent it has
deemed appropriate, and (C) each of the Loan Parties is capable of
evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (ii) (A) the
Administrative Agent and the
Arranger each is and has been acting solely as a principal and, except as
expressly agreed in writing by the relevant parties, has not been, is not, and
will not be acting as an advisor, agent or fiduciary for the Loan Parties or
any of their respective
Affiliates, or any other Person and (B) neither the Administrative Agent nor the Arranger has any obligation to
the Loan Parties or any of their
respective Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other
Loan Documents; and (iii) the Administrative Agent and the Arranger and their respective Affiliates may be engaged in
a broad range of transactions that involve interests that differ from those of
the Loan Parties and their respective
Affiliates, and neither the Administrative Agent nor the Arranger has any obligation to disclose any of such
interests to the Loan Parties and their
respective Affiliates.  To the
fullest extent permitted by Law, each
of  the Loan Parties hereby
waives and releases any claims that it may have against the Administrative
Agent and the Arranger with
respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.


 


11.17       Electronic Execution of Assignments and Certain
Other Documents.


 


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


 


11.18       USA PATRIOT Act.


 


Each
Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”),
it is required to obtain, verify and record information that identifies the
Borrower, which information includes 


 


95

















 


the
name and address of the Borrower and other information that will allow such
Lender or the Administrative Agent, as applicable, to identify the Borrower in
accordance with the Act.  The Borrower
shall, promptly following a request by the Administrative Agent or any Lender,
provide all documentation and other information that the Administrative Agent
or such Lender requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.


 


[SIGNATURE PAGES FOLLOW]


 


96

















 


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


 


	
  BORROWER:

  	
  GT
  SOLAR INTERNATIONAL, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas M. Zarrella

  
	
   

  	
  Name: Thomas M. Zarrella

  
	
   

  	
  Title:
  President and CEO

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  GT
  SOLAR INCORPORATED, a Delaware corporation

  
	
   

  	
  GT
  EQUIPMENT HOLDINGS, INC., a New Hampshire corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Thomas M. Zarrella

  
	
   

  	
  Name: Thomas M. Zarrella

  
	
   

  	
  Title:
  President

  
	
   

  	
   

  
	
  ADMINISTRATIVE
  AGENT:

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Liliana Claar

  
	
   

  	
  Name: Liliana Claar

  
	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
  LENDERS:

  	
  BANK
  OF AMERICA, N.A.,

  
	
   

  	
  as
  a Lender, L/C Issuer and Swing Line Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William J. Rowe

  
	
   

  	
  Name: William J. Rowe

  
	
   

  	
  Title:
  Senior Vice President

  
	
   

  	
   

  
	
   

  	
  CREDIT
  SUISSE, CAYMAN ISLANDS BRANCH

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Caldwell

  
	
   

  	
  Name: Brian Caldwell

  
	
   

  	
  Title:
  Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Morenikeji Ajayi

  
	
   

  	
  Name: Morenikeji Ajayi

  
	
   

  	
  Title:
  Associate

  
	
   

  	
   

  
	
   

  	
  UBS
  LOAN FINANCE, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David B. Julie

  
	
   

  	
  Name: David B. Julie

  
	
   

  	
  Title:
  Associate Director

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Irja R. Osta

  
	
   

  	
  Name: Irja R. Osta

  
	
   

  	
  Title:
  Associate Director

  



 
















 


Exhibit 1.01


 


FORM OF
BORROWING BASE CERTIFICATE


 


Date: 
              ,         


 


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


 


Ladies
and Gentlemen:


 


Reference
is made to the Credit Agreement (as amended, modified and supplemented from
time to time, the “Credit Agreement”) dated as of July 29, 2008
among GT Solar International, Inc., a Delaware corporation (the “Borrower”),
the Guarantors identified therein, the Lenders identified therein, and Bank of
America, N.A., as Administrative Agent. 
Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.


 


I,
[name], [title] of the Borrower, certify to the Administrative Agent and the
Lenders that on behalf of the Borrower (and not in my individual capacity),
that the following calculations are true and correct in all material respects:


 


	
  (a)

  	
   

  	
  Consolidated Adjusted
  EBITDA for the Applicable Period(1):

  	
   

  	
  $

  	
  (2

  	
  )

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  3 multiplied by the
  amount set forth in (a):

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (c) 

  	
   

  	
  Unrestricted
  Cash and Cash Equivalents(3) as of the date of this Borrowing Base
  Certificate 

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  (d)

  	
   

  	
  Borrowing Base (sum of
  (b) and (c))

  	
   

  	
  $

  	
   

  



 






(1)           For purposes of calculating the Borrowing Base prior to the date of
delivery of the Compliance Certificate for the first fiscal quarter ending
after the Closing Date, Consolidated Adjusted EBITDA shall be based on the
period of four consecutive fiscal quarters ending March 31, 2008.


 


(2)           This amount must be the amount set forth on the Compliance Certificate
for the Applicable Period delivered to the Administrative Agent.


 


(3)           Defined as all cash and Cash Equivalents of the Borrower and its
Subsidiaries that (a) do not appear (or would not be required to appear)
as “restricted” on a consolidated balance sheet of the Borrower and its
Subsidiaries, (b) are not subject to a Lien in favor of any Person other
than the Administrative Agent or (c) are otherwise generally available for
use by the Borrower and its Subsidiaries.


 


 


	
   

  	
  GT SOLAR INTERNATIONAL,
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit 2.02


 


FORM OF
LOAN NOTICE


 


Date: 
              ,         


 


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


 


Ladies
and Gentlemen:


 


Reference
is made to the Credit Agreement (as amended, modified and supplemented from
time to time, the “Credit Agreement”) dated as of July 29, 2008
among GT Solar International, Inc., a Delaware corporation (the “Borrower”),
the Guarantors identified therein, the Lenders identified therein, and Bank of
America, N.A., as Administrative Agent. 
Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.


 


The
undersigned hereby requests (select one):


 


o  A
Borrowing of a Revolving Loan


 


o  A
conversion or continuation of a Revolving Loan


 


1.             On
                    
(a Business Day)


 


2.             In the amount of $       


 


3.             Comprised of
                    
[Type of Loan requested]


 


4.             For Eurodollar Rate Loans:  with an Interest Period of                     
months


 


The
Borrower hereby represents and warrants that (i) such request complies
with the requirements of Section 2.01 of the Credit Agreement and (ii) each
of the conditions set forth in Section 5.02 of the Credit Agreement
have been satisfied on and as of the date of such Borrowing.


 


	
   

  	
  GT SOLAR INTERNATIONAL,
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit 2.04


 


FORM OF SWING
LINE LOAN NOTICE


 


Date:
                    ,
20     


 


To:          Bank of America, N.A.,
as Swing Line Lender


 


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


 


Ladies and Gentlemen:


 


Reference
is made to the Credit Agreement (as amended, modified and supplemented from
time to time, the “Credit Agreement”) dated as of July 29, 2008
among GT Solar International, Inc., a Delaware corporation (the “Borrower”),
the Guarantors identified therein, the Lenders identified therein, and Bank of
America, N.A., as Administrative Agent. 
Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.


 


The undersigned hereby
requests a Borrowing of a Swing Line Loan.


 


1.             On
                      
(a Business Day)


 


2.             In the amount of $     


 


The Borrower hereby
represents and warrants that (i) such request complies with the
requirements of the first proviso to the first sentence of Section 2.04(a) of
the Credit Agreement and (ii) each of the conditions set forth in Section 5.02
of the Credit Agreement have been satisfied on and as of the date of such
Borrowing.


 


	
   

  	
  GT SOLAR INTERNATIONAL,
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit 2.11(a)


 


FORM OF NOTE


 


                   ,
20       


 


FOR
VALUE RECEIVED, GT SOLAR INTERNATIONAL, INC., a Delaware corporation (the “Borrower”),
hereby promises to pay to
                        
or registered assigns (the “Lender”) in accordance with the provisions
of the Credit Agreement (as hereinafter defined), the principal amount of each
Loan from time to time made by the Lender to the Borrower under the Credit
Agreement (as amended, modified, supplemented, increased and extended from time
to time, the “Credit Agreement”; the capitalized terms defined therein
being used herein as therein defined) dated as of July 29, 2008 among the
Borrower, the Guarantors identified therein, the Lenders identified therein,
and Bank of America, N.A., as Administrative Agent.


 


The
Borrower promises to pay interest on the unpaid principal amount of each Loan
from the date of such Loan until such principal amount is paid in full, at such
interest rates and at such times as provided in the Credit Agreement.  All payments of principal and interest
shall be made to the Administrative Agent for the account of the Lenders in
Dollars.  If any amount is not paid in
full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Credit Agreement.


 


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. 
Loans made by the Lender shall be evidenced by one or more loan accounts
or records maintained by the Lender in the ordinary course of business. The
Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Loans and payments with respect thereto.


 


The
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and
non-payment of this Note.


 


THIS
NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.


 


[SIGNATURE PAGE FOLLOWS]


 

















 


IN
WITNESS WHEREOF, the Borrower has caused this Note to be executed as of the
date first written above.


 


	
   

  	
  GT SOLAR INTERNATIONAL,
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit 7.02


 


FORM OF COMPLIANCE CERTIFICATE


 


For
the fiscal quarter ended
                                  , 20    .


 


Reference
is made to the Credit Agreement (as amended, modified and supplemented from
time to time, the “Credit Agreement”) dated as of July 29, 2008
among GT Solar International, Inc., a Delaware corporation (the “Borrower”),
the Guarantors identified therein, the Lenders identified therein, and Bank of
America, N.A., as Administrative Agent. 
Capitalized terms used herein but not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement.


 


I,
[name], [title] of the Borrower, certify to the Administrative Agent and the
Lenders that on behalf of the Borrower (and not in my individual capacity):


 


[Use following paragraph
1 for fiscal year-end financial statements:]


 


[1.            Attached hereto as Schedule 1
are the year-end audited financial statements required by Section 7.01(a) of
the Credit Agreement for the fiscal year of the Borrower ended as of the above
date, together with the report and opinion of an independent certified public
accountant required by such section.


 


[Use following paragraph
1 for fiscal quarter-end financial statements:]


 


[1.            Attached hereto as Schedule 1
are the unaudited financial statements required by Section 7.01(b) of
the Credit Agreement for the fiscal quarter of the Borrower ended as of the
above date.  Such financial statements
fairly present the financial condition, results of operations and cash flows of
the Borrower and its Subsidiaries in accordance with GAAP as at such date and
for such period, subject only to normal year-end audit adjustments and the
absence of footnotes.]


 


2.             The undersigned has
reviewed and is familiar with the terms of the Credit Agreement and has made,
or has caused to be made, a detailed review of the transactions and condition
(financial or otherwise) of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements.


 


3.             A review of the
activities of the Loan Parties during such fiscal period has been made under
the supervision of the undersigned with a view to determining whether during
such fiscal period the Loan Parties performed and observed all of their
obligations under the Loan Documents, and


 


[select one:]


 


[to the best knowledge of
the undersigned during such fiscal period, the Loan Parties performed and
observed each covenant and condition of the Loan Documents.]


 


[or:]


 


[the following covenants
or conditions have not been performed or observed and the following is a list
of each such Default and its nature and status:]


 


4.             The representations
and warranties of the Loan Parties contained in the Credit Agreement and in the
other Loan Documents are true and correct in all material respects on and as of
the date hereof, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they are true and correct
in all material respects as of such earlier date.


 

















 


5.             The financial covenant
analyses and information relating to the financial covenants in Section 8.11
of the Credit Agreement, as set forth on the attachment hereto, are true and
accurate in all material respects on and as of the date of this Certificate.


 


IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of
                    ,
20    .


 


	
   

  	
  GT SOLAR INTERNATIONAL,
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 

















 


Exhibit 7.12


 


FORM OF JOINDER AGREEMENT


 


THIS
JOINDER AGREEMENT (this “Agreement”) dated as of
                    , 20    
is by and between
                    ,
a
                    
(the “New Subsidiary”), and BANK OF AMERICA, N.A., in its capacity as
Administrative Agent (in such capacity, the “Administrative Agent”)
under the Credit Agreement (as amended, modified, supplemented, increased,
extended and restated from time to time, the “Credit Agreement”) dated
as of July 29, 2008 among GT Solar International, Inc., a Delaware
corporation (the “Borrower”), the Guarantors identified therein, the
Lenders identified therein, and the Administrative Agent.  Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement.


 


The
Loan Parties are required by Section 7.12(b) of the Credit
Agreement to cause the New Subsidiary to become a “Guarantor” under the Credit
Agreement and the other Loan Documents. 
Accordingly, the New Subsidiary hereby agrees with the Administrative
Agent as follows:


 


                1.             The New Subsidiary hereby acknowledges,
agrees and confirms that, by its execution of this Agreement, the New
Subsidiary will be deemed to be a party to the Credit Agreement and a “Guarantor”
for all purposes of the Credit Agreement, and shall have all of the obligations
of a Guarantor thereunder as if it had executed the Credit Agreement.  The New Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the Guarantors contained in the Credit Agreement.  Without limiting the generality of the
foregoing terms of this paragraph 1, the New Subsidiary hereby jointly and
severally together with the other Guarantors, guarantees to the Administrative
Agent and each holder of the Obligations, as provided in Article IV
of the Credit Agreement, the prompt payment and performance of the Obligations
in full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise) strictly in accordance with the terms thereof.


 


                2.             The New Subsidiary hereby acknowledges,
agrees and confirms that, by its execution of this Agreement, the New
Subsidiary will be deemed to be a party to the Security Agreement and an “Obligor”
for all purposes of the Security Agreement, and shall have all the obligations
of an Obligor thereunder as if it had executed the Security Agreement.  The New Subsidiary hereby ratifies, as of the
date hereof, and agrees to be bound by, all of the terms, provisions and
conditions contained in the Security Agreement. 
Without limiting generality of the foregoing terms of this paragraph 2,
the New Subsidiary hereby grants to the Administrative Agent, for the benefit
of the holders of the Secured Obligations (as defined in the Security
Agreement), a continuing security interest in, and a right of set off against
any and all right, title and interest of the New Subsidiary in and to the
Collateral (as defined in the Security Agreement) of the New Subsidiary to
secure the prompt payment and performance in full when due, whether by lapse of
time, acceleration, mandatory prepayment or otherwise, of the Secured
Obligations.


 


3.             The New Subsidiary hereby represents and
warrants to the Administrative Agent that:


 


(a)           Set
forth on Schedule 1 hereto is a list of all real property located in the
United States that is owned or leased by the New Subsidiary as of the date
hereof.


 


(b)           Set
forth on Schedule 2 hereto is a list of all locations where any tangible
personal property of the New Subsidiary is located as of the date hereof other
than (i) property in transit between such locations, (ii) property at
a customer location, (iii) property out for repair or refurbishment or in
the possession of employees and (iv) other property with a fair market
value of less than $1 million.


 

















 


(c)           Set
forth on Schedule 3 hereto is the chief executive office, U.S. tax payer
identification number and organizational identification number of the New
Subsidiary as of the date hereof.


 


(d)           The
exact legal name and state of organization of the New Subsidiary is as set
forth on the signature pages hereto.


 


(e)           Except
as set forth on Schedule 4 hereto, the New Subsidiary has not during the
five years preceding the date hereof (i) changed its legal name, (ii) changed
its state of formation, or (iii) been party to a merger, consolidation or
other change in structure.


 


(f)            Set
forth on Schedule 5 hereto is a list of all IP Rights registered or
pending registration with the United States Copyright Office or the United
States Patent and Trademark Office and owned by the New Subsidiary.


 


(g)           Set
forth on Schedule 6 hereto is a list of all Commercial Tort Claims
seeking damages in excess of $500,000 before any Governmental Authority by or
in favor of the New Subsidiary.


 


(h)           Set
forth on Schedule 7 hereto is the issued and outstanding Equity
Interests owned by the New Subsidiary of each Subsidiary.


 


                4.             The address of the New Subsidiary for
purposes of all notices and other communications is the address designated for
all Loan Parties on Schedule 11.02 to the Credit Agreement or such other
address as the New Subsidiary may from time to time notify the Agents in
writing.


 


                5.             The New Subsidiary hereby waives acceptance
by the Administrative Agent and the Lenders of the guaranty by the New
Subsidiary under Article IV of the Credit Agreement upon the execution of
this Agreement by the New Subsidiary.


 


                6.             This Agreement may be executed in multiple
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute one contract.


 


                7.             THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.


 


[SIGNATURE PAGES FOLLOW]


 

















 


IN
WITNESS WHEREOF, the New Subsidiary has caused this Joinder Agreement to be
duly executed by its authorized officers, and the Administrative Agent has
caused the same to be accepted by its authorized officer, as of the day and
year first above written.


 


	
   

  	
  [NEW SUBSIDIARY]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


 


Acknowledged
and accepted:


 


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

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
			



 
















 


Exhibit 11.06-1


 


FORM OF ASSIGNMENT AND ASSUMPTION


 


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


 


For an agreed consideration, the Assignor hereby
irrevocably sells and assigns to the Assignee, and the Assignee hereby
irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as
of the Effective Date inserted by the Administrative Agent as contemplated
below (i) all of the Assignor’s rights and obligations as a Lender under
the Credit Agreement and any other documents or instruments delivered pursuant
thereto to the extent related to the amount and percentage interest identified
below of all of such outstanding rights and obligations of the Assignor under
the respective facilities identified below (including, without limitation,
Letters of Credit, Guarantees and Swing Line Loans included in such facilities)
and (ii) to the extent permitted to be assigned under applicable law, all
claims, suits, causes of action and any other right of the Assignor (in its
capacity as a Lender) against any Person, whether known or unknown, arising
under or in connection with the Credit Agreement, any other documents or
instruments delivered pursuant thereto or the loan transactions governed
thereby or in any way based on or related to any of the foregoing, including,
but not limited to, contract claims, tort claims, malpractice claims, statutory
claims and all other claims at law or in equity related to the rights and
obligations sold and assigned pursuant to clause (i) above (the rights and
obligations sold and assigned pursuant to clauses (i) and (ii) above
being referred to herein collectively as, the “Assigned Interest”).  Such sale and assignment is without recourse
to the Assignor and, except as expressly provided in this Assignment and
Assumption, without representation or warranty by the Assignor.


 


	
  1.

  	
   

  	
  Assignor:

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee:

  
	
   

  	
   

  	
   

  	
   

  	
  [and is an
  Affiliate/Approved Fund of [identify Lender](1)]

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower:

  	
   

  	
  GT Solar
  International, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative Agent:

  	
   

  	
  Bank of America, N.A.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Credit Agreement:

  	
   

  	
  Credit Agreement dated
  as of July 29, 2008 among the Borrower, the Guarantors party thereto,
  the Lenders party thereto, and the Administrative Agent

  



 






(1) Select
as applicable.


 

















 


6.                                       Assigned
Interest:


 


	
  Facility
  Assigned

  	
   

  	
  Aggregate Amount of

  Commitment/Loans

  for all Lenders*

  	
   

  	
  Amount of

  Commitment/Loans

  Assigned*

  	
   

  	
  Percentage Assigned of

  Commitment/Loans(2)

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
  %

  



 


[7.                                   Trade
Date:                               ](3)


 


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


 


[SIGNATURE PAGES
FOLLOW]


 






*Amount to be adjusted by
the counterparties to take into account any payments or prepayments made
between the Trade Date and the Effective Date.


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


(3) To be completed
if the Assignor and the Assignee intend that the minimum assignment amount is
to be determined as of the Trade Date.


 

















 


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


 


	
   

  	
  ASSIGNOR

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  [Consented to
  and](4) Accepted:

  	
   

  
	
   

  	
   

  
	
  BANK OF AMERICA,
  N.A. as Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  [Consented to:](5)

  	
   

  
	
   

  	
   

  
	
  [BANK OF AMERICA, N.A.,
  as L/C Issuer and Swing Line Lender]

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
  [GT SOLAR
  INTERNATIONAL, INC., a Delaware corporation]

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 






(4) To be added only
if the consent of the Administrative Agent is required by the terms of the
Credit Agreement.


(5) To be added only
if the consent of the Borrower and/or other parties (e.g. L/C Issuer) is
required by the terms of the Credit Agreement.


 

















 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS FOR


ASSIGNMENT AND ASSUMPTION


 


1.  Representations and Warranties.


 


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


 


1.2.  Assignee.  The Assignee (a) represents and warrants
that (i) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets the requirements to be an assignee
under Section 11.06(b)(iii), (v) and (vi) of the Credit
Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of
the Credit Agreement), (iii) from and after the Effective Date, it shall
be bound by the provisions of the Credit Agreement as a Lender thereunder and,
to the extent of the Assigned Interest, shall have the obligations of a Lender
thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the
Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets of such type, (v) it has
received a copy of the Credit Agreement, and has received or has been accorded
the opportunity to receive copies of the most recent financial statements
delivered pursuant to Section 7.01 thereof, as applicable, and such other
documents and information as it deems appropriate to make its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest, (vi) it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest, and (vii) if it is a Foreign Lender,
attached hereto is any documentation required to be delivered by it pursuant to
the terms of the Credit Agreement, duly completed and executed by the Assignee;
and (b) agrees that (i) it will, independently and without reliance
on the Administrative Agent, the Assignor or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.


 


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


 


3.  General Provisions. This Assignment
and Assumption shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.  This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument.  Delivery of an executed
counterpart of a signature page of this Assignment and Assumption by telecopy
or electronic 


 

















 


transmission shall be
effective as delivery of a manually executed counterpart of this Assignment and
Assumption.  This Assignment and
Assumption shall be governed by, and construed in accordance with, the law of
the State of New York
without regard to conflict of laws principles thereof.


 

















 


	
  Administrative Details Reply Form

  	
   

  



 


Exhibit 11.06-2


 


FORM OF ADMINISTRATIVE QUESTIONNAIRE


 


FAX ALONG WITH COMMITMENT LETTER
TO:  Jaycrish Chandiramani, FAX #:
704-208-2930


 


I.              Borrower Name: GT Solar International, Inc.


 


$90,000,000 Senior
Secured Revolving Credit Facility


 


II. Legal Name of Lender of
Record for Signature Page:


 


·                  Signing Credit Agreement
          o YES          o NO


·                  Coming in via Assignment
          o YES
         o NO


 


III. Type of Lender:


(Bank, Asset Manager,
Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance, Mutual Fund,
Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle, Other –
please specify)


 


	
  IV. Domestic Address:

  	
   

  	
  V. Eurodollar Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


VI.  Contact Information:


 


Syndicate
level information (which may contain material non-public information about the Borrower
and its related parties or their respective securities will be made available
to the Credit Contact(s).  The Credit Contacts identified must be able to
receive such information in accordance with his/her institution’s compliance
procedures and applicable laws, including Federal and State securities laws.


 


	
   

  	
   

  	
  Credit Contact

  	
   

  	
  Primary Operations

  Contact

  	
   

  	
  Secondary

  Operations Contact

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E Mail Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


Does Secondary
Operations Contact need copy of notices?      o YES      o NO


 

















 


	
   

  	
   

  	
  Letter of Credit

  Contact

  	
   

  	
  Contact

  	
   

  	
  Draft Documentation

  Legal Counsel

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Telephone:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Facsimile:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  E Mail Address:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


VII. Lender’s Fed Wire Payment
Instructions:


 


	
  Pay to:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (Bank
  Name)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  (ABA#)

  	
   

  	
  (City/State)

  
	
   

  	
   

  	
   

  
	
  (Account
  #)

  	
   

  	
  (Account Name)

  
	
   

  	
   

  	
   

  
	
  (Attention)

  	
   

  	
   

  



 


VIII. Organizational Structure
and Tax Status


 


Please refer to the enclosed
withholding tax instructions below and then complete this section accordingly:


 


Lender Taxpayer
Identification Number (TIN):                           -


 


Tax Withholding Form Delivered
to Bank of America*:


 


	
  o

  	
  W-9

  
	
   

  	
   

  
	
  o

  	
  W-8BEN

  
	
   

  	
   

  
	
  o

  	
  W-8ECI

  
	
   

  	
   

  
	
  o

  	
  W-8EXP

  
	
   

  	
   

  
	
  o

  	
  W-8IMY

  



 

















 


NON–U.S. LENDER
INSTITUTIONS


 


1. Corporations:


 


If your institution is
incorporated outside of the United States for U.S. federal income tax purposes,
and is the beneficial owner of the interest and other income it receives, you
must complete one of the following three tax forms, as applicable to your
institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial
Owner), b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or
Business), or c.) Form W-8EXP (Certificate of Foreign Government or
Governmental Agency).


 


A U.S. taxpayer
identification number is required for any institution submitting a Form W-8
ECI.  It is also required on Form W-8BEN
for certain institutions claiming the benefits of a tax treaty with the
U.S.  Please refer to the instructions
when completing the form applicable to your institution.  In addition, please be advised that U.S. tax
regulations do not permit the acceptance of faxed forms.  An original tax form must
be submitted.


 


2. Flow-Through Entities


 


If your institution is
organized outside the U.S., and is classified for U.S. federal income tax
purposes as either a Partnership, Trust, Qualified or Non-Qualified
Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY
(Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain
U.S. branches for United States Tax Withholding) must be completed by the
intermediary together with a withholding statement.  Flow-through entities other than Qualified
Intermediaries are required to include tax forms for each of the underlying
beneficial owners.


 


Please refer to the
instructions when completing this form. 
In addition, please be advised that U.S. tax regulations do not permit
the acceptance of faxed forms.  Original tax form(s) must be submitted.


 


U.S. LENDER INSTITUTIONS:


 


If your institution is
incorporated or organized within the United States, you must complete and
return Form W-9 (Request for Taxpayer Identification Number and
Certification).  Please be
advised that we require an original form W-9.


 


Pursuant
to the language contained in the tax section of the Credit Agreement, the
applicable tax form for your institution must be completed and returned on or prior
to the date on which your institution becomes a lender under this Credit
Agreement.  Failure to provide the proper
tax form when requested will subject your institution to U.S. tax withholding.


 






*Additional guidance and
instructions as to where to submit this documentation can be found at this
link:


 


IXI. Bank of America Payment
Instructions:


 


Pay to:


Bank of America, N.A.


ABA # 


New York, NY


Acct: # 


Attn: 


Ref: