exv4w2






Exhibit 4.2

Execution Version




SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT




dated as of October 26, 2009




among




TELVENT DTN, INC.,

as Borrower




VARIOUS LENDERS,




and




GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent and Collateral Agent




 






Senior Secured Credit Facilities




 






 









 





TABLE OF CONTENTS




	 	 	 	 	 	 	 
	 	 	 	 	Page
	SECTION 1.  DEFINITIONS AND INTERPRETATION	 	 	2	 
	1.1

	 	Definitions
	 	 	2	 
	1.2

	 	Accounting Terms
	 	 	28	 
	1.3

	 	Interpretation, etc
	 	 	29	 
	 
	 	 	 	 	 	 
	SECTION 2.  LOANS AND LETTERS OF CREDIT	 	 	29	 
	2.1

	 	Term Loans
	 	 	29	 
	2.2

	 	Revolving Loans
	 	 	29	 
	2.3

	 	Swing Line Loans
	 	 	30	 
	2.4

	 	Issuance of Letters of Credit and Purchase of Participations Therein
	 	 	33	 
	2.5

	 	Pro Rata Shares; Availability of Funds
	 	 	36	 
	2.6

	 	Use of Proceeds
	 	 	37	 
	2.7

	 	Evidence of Debt; Register; Lenders’ Books and Records; Notes
	 	 	37	 
	2.8

	 	Interest on Loans
	 	 	38	 
	2.9

	 	Conversion/Continuation
	 	 	41	 
	2.10

	 	Default Interest
	 	 	41	 
	2.11

	 	Fees
	 	 	41	 
	2.12

	 	Scheduled Payments/Commitment Reductions
	 	 	42	 
	2.13

	 	Voluntary Prepayments/Commitment Reductions
	 	 	43	 
	2.14

	 	Mandatory Prepayments/Commitment Reductions
	 	 	44	 
	2.15

	 	Application of Prepayments/Reductions
	 	 	46	 
	2.16

	 	General Provisions Regarding Payments
	 	 	47	 
	2.17

	 	Ratable Sharing
	 	 	48	 
	2.18

	 	Making or Maintaining Eurodollar Rate Loans
	 	 	49	 
	2.19

	 	Increased Costs; Capital Adequacy
	 	 	50	 
	2.20

	 	Taxes; Withholding, etc
	 	 	52	 
	2.21

	 	Obligation to Mitigate
	 	 	54	 
	2.22

	 	Defaulting Lenders
	 	 	54	 
	2.23

	 	Removal or Replacement of a Lender
	 	 	55	 
	2.24

	 	Incremental Facility
	 	 	56	 
	 
	 	 	 	 	 	 
	SECTION 3.  CONDITIONS PRECEDENT	 	 	57	 
	3.1

	 	Closing Date
	 	 	57	 
	3.2

	 	First Restatement Effective Date
	 	 	57	 
	3.3

	 	Second Restatement Effective Date
	 	 	57	 
	3.4

	 	Conditions to Each Credit Extension
	 	 	59	 
	 
	 	 	 	 	 	 
	SECTION 4.  REPRESENTATIONS AND WARRANTIES	 	 	60	 
	4.1

	 	Organization; Requisite Power and Authority; Qualification
	 	 	61	 
	4.2

	 	Capital Stock and Ownership
	 	 	61	 
	4.3

	 	Due Authorization
	 	 	61	 
	4.4

	 	No Conflict
	 	 	61	 
	4.5

	 	Governmental Consents
	 	 	62	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	4.6

	 	Binding Obligation
	 	 	62	 
	4.7

	 	Historical Financial Statements
	 	 	62	 
	4.8

	 	[Reserved]
	 	 	62	 
	4.9

	 	No Material Adverse Change
	 	 	62	 
	4.10

	 	No Restricted Junior Payments
	 	 	62	 
	4.11

	 	Adverse Proceedings, etc
	 	 	62	 
	4.12

	 	Payment of Taxes
	 	 	63	 
	4.13

	 	Properties
	 	 	63	 
	4.14

	 	Environmental Matters
	 	 	63	 
	4.15

	 	No Defaults
	 	 	64	 
	4.16

	 	Material Contracts
	 	 	64	 
	4.17

	 	Governmental Regulation
	 	 	64	 
	4.18

	 	Margin Stock
	 	 	64	 
	4.19

	 	Employee Matters
	 	 	65	 
	4.20

	 	Employee Benefit Plans
	 	 	65	 
	4.21

	 	Certain Fees
	 	 	66	 
	4.22

	 	Solvency
	 	 	66	 
	4.23

	 	Compliance with Statutes, etc
	 	 	66	 
	4.24

	 	Disclosure
	 	 	66	 
	4.25

	 	Patriot Act
	 	 	66	 
	 
	 	 	 	 	 	 
	SECTION 5.  AFFIRMATIVE COVENANTS	 	 	67	 
	5.1

	 	Financial Statements and Other Reports
	 	 	67	 
	5.2

	 	Existence
	 	 	70	 
	5.3

	 	Payment of Taxes and Claims
	 	 	71	 
	5.4

	 	Maintenance of Properties
	 	 	71	 
	5.5

	 	Insurance
	 	 	71	 
	5.6

	 	Books and Records; Inspections
	 	 	72	 
	5.7

	 	Lenders Meetings
	 	 	72	 
	5.8

	 	Compliance with Laws
	 	 	72	 
	5.9

	 	Environmental
	 	 	72	 
	5.10

	 	Subsidiaries and Additional Credit Parties
	 	 	73	 
	5.11

	 	Additional Material Real Estate Assets
	 	 	74	 
	5.12

	 	Interest Rate Protection
	 	 	74	 
	5.13

	 	Further Assurances
	 	 	74	 
	5.14

	 	Non-Consolidation
	 	 	75	 
	 
	 	 	 	 	 	 
	SECTION 6.  NEGATIVE COVENANTS	 	 	75	 
	6.1

	 	Indebtedness
	 	 	75	 
	6.2

	 	Liens
	 	 	76	 
	6.3

	 	Equitable Lien
	 	 	78	 
	6.4

	 	No Further Negative Pledges
	 	 	78	 
	6.5

	 	Restricted Junior Payments
	 	 	78	 
	6.6

	 	Restrictions on Subsidiary Distributions
	 	 	78	 
	6.7

	 	Investments
	 	 	79	 
	6.8

	 	Financial Covenants
	 	 	80	 
	6.9

	 	Fundamental Changes; Disposition of Assets; Acquisitions
	 	 	81	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	6.10

	 	Disposal of Subsidiary Interests
	 	 	83	 
	6.11

	 	Sales and Lease-Backs
	 	 	83	 
	6.12

	 	Transactions with Shareholders and Affiliates
	 	 	83	 
	6.13

	 	Conduct of Business
	 	 	84	 
	6.14

	 	Fiscal Year
	 	 	84	 
	 
	 	 	 	 	 	 
	SECTION 7.  GUARANTY	 	 	84	 
	7.1

	 	Guaranty of the Obligations
	 	 	84	 
	7.2

	 	Contribution by Guarantors
	 	 	84	 
	7.3

	 	Payment by Guarantors
	 	 	85	 
	7.4

	 	Liability of Guarantors Absolute
	 	 	85	 
	7.5

	 	Waivers by Guarantors
	 	 	87	 
	7.6

	 	Guarantors’ Rights of
Subrogation, Contribution, etc.
	 	 	87	 
	7.7

	 	Subordination of Other Obligations
	 	 	88	 
	7.8

	 	Continuing Guaranty
	 	 	88	 
	7.9

	 	Authority of Guarantors or Company
	 	 	89	 
	7.10

	 	Financial Condition of Company
	 	 	89	 
	7.11

	 	Bankruptcy, etc.
	 	 	89	 
	7.12

	 	Discharge of Guaranty Upon Sale of Guarantor
	 	 	90	 
	 
	 	 	 	 	 	 
	SECTION 8.  EVENTS OF DEFAULT	 	 	90	 
	8.1

	 	Events of Default
	 	 	90	 
	 
	 	 	 	 	 	 
	SECTION 9.  AGENTS	 	 	93	 
	9.1

	 	Appointment of Agents
	 	 	93	 
	9.2

	 	Powers and Duties
	 	 	93	 
	9.3

	 	General Immunity
	 	 	93	 
	9.4

	 	Agents Entitled to Act as Lender
	 	 	95	 
	9.5

	 	Lenders’ Representations and Warranties
	 	 	95	 
	9.6

	 	Right to Indemnity
	 	 	95	 
	9.7

	 	Successor Administrative Agent, Collateral Agent and Swing Line Lender
	 	 	96	 
	9.8

	 	Collateral Documents and Guaranty
	 	 	97	 
	 
	 	 	 	 	 	 
	SECTION 10.  MISCELLANEOUS	 	 	97	 
	10.1

	 	Notices
	 	 	97	 
	10.2

	 	Expenses
	 	 	98	 
	10.3

	 	Indemnity
	 	 	99	 
	10.4

	 	Set-Off
	 	 	99	 
	10.5

	 	Amendments and Waivers
	 	 	100	 
	10.6

	 	Successors and Assigns; Participations
	 	 	102	 
	10.7

	 	Independence of Covenants
	 	 	106	 
	10.8

	 	Survival of Representations, Warranties and Agreements
	 	 	106	 
	10.9

	 	No Waiver; Remedies Cumulative
	 	 	106	 
	10.10

	 	Marshalling; Payments Set Aside
	 	 	107	 
	10.11

	 	Severability
	 	 	107	 
	10.12

	 	Obligations Several; Independent Nature of Lenders’ Rights
	 	 	107	 
	10.13

	 	Headings
	 	 	107	 






 









 






	 	 	 	 	 	 	 
	 	 	 	 	Page
	10.14

	 	APPLICABLE LAW
	 	 	107	 
	10.15

	 	CONSENT TO JURISDICTION
	 	 	107	 
	10.16

	 	WAIVER OF JURY TRIAL
	 	 	108	 
	10.17

	 	Confidentiality
	 	 	108	 
	10.18

	 	Press Releases and Related Matters
	 	 	109	 
	10.19

	 	Usury Savings Clause
	 	 	109	 
	10.20

	 	Counterparts
	 	 	110	 
	10.21

	 	Effectiveness
	 	 	110	 
	10.22

	 	Patriot Act
	 	 	110	 
	10.23

	 	Electronic Execution of Assignment
	 	 	110	 
	10.24

	 	Amendment and Restatement
	 	 	110	 
	10.25

	 	Reaffirmation and Grant of Security Interests
	 	 	111	 






 









 






	 	 	 	 	 	 	 
	APPENDICES*:

	 	 	A-1	 	 	[Reserved]
	 

	 	 	A-2	 	 	[Reserved]
	 

	 	 	B	 	 	Notice Addresses
	SCHEDULES:

	 	 	4.1	 	 	Jurisdictions of Organization and Qualification
	 

	 	 	4.2	 	 	Capital Stock and Ownership
	 

	 	 	4.13	 	 	Real Estate Assets
	 

	 	 	4.16	 	 	Material Contracts
	 

	 	 	6.1	 	 	Certain Indebtedness
	 

	 	 	6.2	 	 	Certain Liens
	 

	 	 	6.6	 	 	Certain Restrictions on Subsidiary Distributions
	 

	 	 	6.7	 	 	Certain Investments
	 

	 	 	6.12	 	 	Certain Affiliate Transactions
	EXHIBITS:

	 	 	A-1	 	 	Funding Notice
	 

	 	 	A-2	 	 	Conversion/Continuation Notice
	 

	 	 	A-3	 	 	Issuance Notice
	 

	 	 	B-1	 	 	Term Loan Note
	 

	 	 	B-2	 	 	Revolving Loan Note
	 

	 	 	B-3	 	 	Swing Line Note
	 

	 	 	C	 	 	Compliance Certificate
	 

	 	 	D-1	 	 	Opinions of Kutak Rock LLP
	 

	 	 	D-2	 	 	Opinions of Fredrikson & Byron, P.A.
	 

	 	 	D-3	 	 	Opinions of In-House Counsel for Telvent
	 

	 	 	D-4	 	 	Opinions of Squire, Sanders & Dempsey L.L.P.
	 

	 	 	E	 	 	Assignment Agreement
	 

	 	 	F	 	 	Certificate Re Non-bank Status
	 

	 	 	G-1	 	 	Effective Date Certificate
	 

	 	 	G-2	 	 	Solvency Certificate
	 

	 	 	H	 	 	Counterpart Agreement
	 

	 	 	I	 	 	[Reserved]
	 

	 	 	J	 	 	[Reserved]
	 

	 	 	K	 	 	[Reserved]
	 

	 	 	L	 	 	Joinder Agreement
	 

	 	 	M	 	 	Telvent Pledge Agreement








 




			
	* 	 	The Appendices, Schedules, and Exhibits to this agreement have not been filed with this agreement.
Pursuant to Item 601(b)(2) of Regulation S-K, such documents are immaterial to an investment
decision. A copy of any of these omitted documents will be furnished to the Commission by Telvent
upon the Commission’s request.






 











 





SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT




          This SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of October 26, 2009,
is entered into by and among TELVENT DTN, INC. (f/k/a DTN Holding Company, Inc. and successor by
merger to DTN, Inc.), a Delaware corporation (“Company”), the Lenders party hereto from time to
time, and GENERAL ELECTRIC CAPITAL CORPORATION (“GECC”), as Administrative Agent (together with its
permitted successors in such capacity, “Administrative Agent”) and as Collateral Agent (together
with its permitted successor in such capacity, “Collateral Agent”).




RECITALS:




          WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth
for such terms in Section 1.1 hereof;




          WHEREAS, DTN, Inc. (formerly known as Data Transmission Network Corporation) (“DTN”), DTN
Holding Company, Inc., as successor in interest to DTN Holding Company, LLC, (“DTN Holding”), DTN,
LLC (“DTN LLC”), DTN Information Services LLC (“DTN Information”), DTN HoldCo Corporation (formerly
known as DTN Corporation) (“DTN HoldCo”), certain guarantors party thereto, Goldman Sachs Credit
Partners L.P. (“GSCP”), as lead arranger, sole bookrunner and sole syndication agent, and GECC, as
administrative agent and collateral agent, and the lenders party thereto from time to time were
parties to that certain First Lien Credit and Guaranty Agreement, dated as of March 10, 2006 (the
“Closing Date”) (as amended, the “Initial Credit Agreement”);




          WHEREAS, DTN, DTN Holding, DTN LLC, DTN Information, DTN HoldCo, certain guarantors party
thereto, GSCP, as lead arranger, sole bookrunner and sole syndication agent, and GECC, as
administrative agent and collateral agent, and the lenders party thereto from time to time are
parties to that certain Amended and Restated First Lien Credit and Guaranty Agreement, dated as of
March 16, 2007 (the “First Restatement Effective Date”), as amended as of September 15, 2008 (the
“Existing Credit Agreement”), pursuant to which the parties amended and restated the Initial Credit
Agreement;




          WHEREAS, Company desires that certain of the existing Lenders and other parties hereto agree
to amend and restate the Existing Credit Agreement in its entirety to (i) reflect the Corporate
Reorganization occurring contemporaneously herewith and (ii) make certain other changes as more
fully set forth herein, which amendment and restatement shall become effective upon the Second
Restatement Effective Date as defined herein;




          WHEREAS, the Requisite Lenders have, on or prior to the Second Restatement Effective Date,
authorized the Administrative Agent to execute this Agreement on their behalf;




          WHEREAS, Company has agreed to secure all of its Obligations by reaffirming its grant to
Collateral Agent, for the benefit of Secured Parties, a First Priority Lien on its assets;




          WHEREAS, Telvent Export, S.L., a company organized under the laws of Spain (“Telvent”), has
agreed to secure the Obligations of Company by pledging all of its Capital Stock of Company;




 









 








          WHEREAS, it is the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities of the parties under the Existing Credit Agreement and that this
Agreement amend and restate in its entirety the Existing Credit Agreement and re-evidence the
Obligations outstanding on the Second Restatement Effective Date as contemplated hereby; and




          WHEREAS, it is the intent of Company to confirm that all Obligations under the other Credit
Documents, as amended hereby, shall continue in full force and effect and that, from and after the
Second Restatement Effective Date, all references to the “Credit Agreement” contained therein shall
be deemed to refer to this Agreement;




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



SECTION 1. DEFINITIONS AND INTERPRETATION




     1.1 Definitions. The following terms used herein, including in the preamble, recitals,
exhibits and schedules hereto, shall have the following meanings:



          “Adjusted Eurodollar Rate” means for each Interest Period, a rate of interest determined by
Administrative Agent equal to:




     (a) the offered rate for deposits in United States Dollars for the applicable Interest
Period that appears on Reuters Screen LIBOR01 as of 11:00 a.m. (London time), on the second
full LIBOR Business Day next preceding the first day of such Interest Period (unless such
date is not a Business Day, in which event the next succeeding Business Day will be used);
divided by




     (b) a number equal to 1.0 minus the aggregate (but without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on the day that is
two (2) LIBOR Business Days prior to the beginning of such Interest Period (including basic,
supplemental, marginal and emergency reserves under any regulations of the Federal Reserve
Board or other Governmental Authority having jurisdiction with respect thereto, as now and
from time to time in effect) for Eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the Federal Reserve Board that are required to
be maintained by a member bank of the Federal Reserve System.




          If such interest rates shall cease to be available from Telerate News Service, the Adjusted
Eurodollar Rate shall be reasonably determined by the Administrative Agent from such financial
reporting service or other information as shall be publicly available.




          “Adjusted Maximum Consolidated Capital Expenditures” as defined in Section 6.8(d).




          “Administrative Agent” as defined in the preamble hereto.




2









 








          “Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of any
Credit Party) at law or in equity, or before or by any Governmental Authority, domestic or foreign
(including any Environmental Claims), whether pending or, to the knowledge of any Credit Party,
threatened against or affecting any Credit Party or any property of any Credit Party.




          “Affected Lender” as defined in Section 2.18(b).




          “Affected Loans” as defined in Section 2.18(b).




          “Affiliate” means, as applied to any Person, any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power (i) to vote 5% or more of the Securities having ordinary voting power for
the election of directors of such Person or (ii) to direct or cause the direction of the management
and policies of that Person, whether through the ownership of voting securities or by contract or
otherwise; provided, however, that solely with respect to the definition of
“Eligible Assignee”, a threshold of 10% or more shall be used instead of the aforementioned 5% or
more threshold.




          “Agent” means each of Administrative Agent and Collateral Agent.




          “Aggregate Amounts Due” as defined in Section 2.17.




          “Aggregate Payments” as defined in Section 7.2.




          “Agreement” means this Second Amended and Restated Credit and Guaranty Agreement, dated as of
October 26, 2009, as it may be amended, supplemented or otherwise modified from time to time.




          “Applicable Margin” means, for any day, (i) with respect to Revolving Loans and Tranche C Term
Loans that are Eurodollar Rate Loans, a rate per annum equal to (x) 5.00%, if the Company’s S&P
Rating and Moody’s Rating is higher than or equal to B+ and B1, respectively, on such day and (y)
5.50%, if the Company’s S&P Rating and Moody’s Rating is lower than B+ and B1, respectively, on
such day and (ii) with respect Revolving Loans and Tranche C Term Loans that are Base Rate Loans, a
rate per annum equal to (x) 3.75%, if the Company’s S&P Rating and Moody’s Rating is higher than or
equal to B+ and B1, respectively, on such day and (y) 4.25%, if the Company’s S&P Rating and
Moody’s Rating is lower than B+ and B1, respectively, on such day. The S&P Rating and Moody’s
Rating shall be determined from the most recent public announcement of any changes in such S&P
Rating and Moody’s Rating. In the event that any New Term Loans are made on the Increased Amount
Date, the Applicable Margin for such New Term Loans shall be the rate per annum set forth in the
applicable Joinder Agreement.




          “Asset Sale” means a sale, lease or sub-lease (as lessor or sublessor), sale and leaseback,
assignment, conveyance, transfer or other disposition to, or any exchange of property




3









 







with, any Person (other than any Credit Party), in one transaction or a series of
transactions, of all or any part of any Credit Party’s or any of its Subsidiaries’ businesses,
assets or properties of any kind, whether real, personal, or mixed and whether tangible or
intangible, whether now owned or hereafter acquired, including, without limitation, the Capital
Stock of any of Company’s Subsidiaries, other than (i) inventory (or other assets) sold or leased
in the ordinary course of business (excluding any such sales by operations or divisions
discontinued or to be discontinued), and (ii) sales of other assets for aggregate consideration of
less than $1,000,000 in the aggregate during any Fiscal Year.




          “Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form
of Exhibit E, with such amendments or modifications as may be approved by Administrative Agent.




          “Assignment Effective Date” as defined in Section 10.6(b).




          “Authorized Officer” means, as applied to any Person, any individual holding the position of
chairman of the board (if an officer), chief executive officer, or president (or the equivalent
thereof), and such Person’s chief financial officer or treasurer.




          “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and
hereafter in effect, or any successor federal statute.




          “Base Rate” means, for any day, a floating rate equal to the higher of (i) the rate publicly
quoted from time to time by The Wall Street Journal as the “base rate on corporate loans
posted by at least 75% of the nation’s 30 largest banks” (or, if The Wall Street Journal
ceases quoting a base rate of the type described, the highest per annum rate of interest published
by the Federal Reserve Board in Federal Reserve statistical release H.15 (519) entitled “Selected
Interest Rates” as the Bank prime loan rate or its equivalent), and (ii) the Federal Funds
Effective Rate plus 50 basis points per annum. Each change in any interest rate provided for in
the Agreement based upon the Base Rate shall take effect at the time of such change in the Base
Rate.




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




          “Beneficiary” means each Agent, Issuing Bank, Lender and Lender Counterparty.




          “Board of Governors” means the Board of Governors of the United States Federal Reserve System,
or any successor thereto.




          “Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal
holiday under the laws of the State of New York or is a day on which banking institutions located
in such state are authorized or required by law or other governmental action to close and (ii) with
respect to all notices, determinations, fundings and payments in connection with the Adjusted
Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” shall mean any day which is a
Business Day described in clause (i) and which is also a day for trading by and between banks in
Dollar deposits in the London interbank market.




4









 








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




          “Capital Stock” means any and all shares, interests, participations or other equivalents
(however designated) of capital stock of a corporation, any and all equivalent ownership interests
in a Person (other than a corporation), including, without limitation, partnership interests and
membership interests, and any and all warrants, rights or options to purchase or other arrangements
or rights to acquire any of the foregoing.




          “Cash” means money, currency or a credit balance in any demand or Deposit Account.




          “Cash Equivalents” means, as at any date of determination, (i) marketable securities (a)
issued or directly and unconditionally guaranteed as to interest and principal by the United States
Government or (b) issued by any agency of the United States the obligations of which are backed by
the full faith and credit of the United States, in each case maturing within one year after such
date; (ii) marketable direct obligations issued by any state of the United States of America or any
political subdivision of any such state or any public instrumentality thereof, in each case
maturing within one year after such date and having, at the time of the acquisition thereof, a
rating of at least A-1 from S&P or at least P-1 from Moody’s; (iii) commercial paper maturing no
more than one year from the date of creation thereof and having, at the time of the acquisition
thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s; (iv) certificates of
deposit or bankers’ acceptances maturing within one year after such date and issued or accepted by
any Lender or by any commercial bank organized under the laws of the United States of America or
any state thereof or the District of Columbia that (a) is at least “adequately capitalized” (as
defined in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as
defined in such regulations) of not less than $100,000,000; and (v) shares of any money market
mutual fund that (a) has substantially all of its assets invested continuously in the types of
investments referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or Moody’s.




          “Certificate re Non-Bank Status” means a certificate substantially in the form of Exhibit F.




          “Change of Control” means, at any time, any Person or “group” (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act) other than Telvent or its Affiliates (1) shall have
acquired beneficial ownership of 50.1% or more on a fully diluted basis of the voting interest in
the Capital Stock of Company or (2) shall have obtained the power (whether or not exercised) to
elect a majority of the members of the board of directors (or similar governing body) of Company.




          “Class” means (i) with respect to Lenders, each of the following classes of Lenders: (a)
Lenders having Tranche C Term Loan Exposure, (b) Lenders having Revolving Exposure (including Swing
Line Lender) and (c) Lenders having New Term Loan Exposure, and




5









 







(ii) with respect to Loans, each of the following classes of Loans: (a) Tranche C Term Loans,
(b) Revolving Loans (including Swing Line Loans) and (c) New Term Loans.




          “Closing Date” as defined in the preamble hereto.




          “Closing Date Mortgaged Property” as defined in Section 3.1(i) of the Initial Credit
Agreement.




          “Collateral” means, collectively, all of the real, personal and mixed property (including
Capital Stock) in which Liens are purported to be granted pursuant to the Collateral Documents as
security for the Obligations.




          “Collateral Agent” as defined in the preamble hereto.




          “Collateral Documents” means the Telvent Pledge Agreement, the Pledge and Security Agreement,
the Mortgages, the Landlord Personal Property Collateral Access Agreements, if any, and all other
instruments, documents and agreements delivered by any Credit Party pursuant to this Agreement or
any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured
Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the
Obligations.




          “Collateral Questionnaire” means a certificate in form satisfactory to Collateral Agent that
provides information with respect to the personal or mixed property of each Credit Party.




          “Commitment” means any Revolving Commitment or New Term Loan Commitment.




          “Company” as defined in the preamble hereto.




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




          “Consolidated Adjusted EBITDA” means, for any period, an amount determined for Company and its
Subsidiaries on a consolidated basis equal to (i) Consolidated Net Income plus (ii) the
sum, without duplication, of the amounts for such period of (a) Consolidated Interest Expense, (b)
provisions for taxes based on income, (c) total depreciation expense, (d) total amortization
expense (including, without limitation, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with Indebtedness (including
the Obligations) and amortization of intangibles, including, without limitation, goodwill), (e)
other non-Cash items reducing Consolidated Net Income (excluding any such non-Cash item to the
extent that it represents an accrual or reserve for potential Cash items in any future period or
amortization of a prepaid Cash item that was paid in a prior period), and (f) Transaction Costs
minus (iii) other non-Cash items increasing Consolidated Net Income for such period
(excluding any such non-Cash item to the extent it represents the reversal of an accrual or reserve
for potential Cash item in any prior period).




6









 








          “Consolidated Capital Expenditures” means, for any period, the aggregate of all expenditures
of Company and its Subsidiaries during such period determined on a consolidated basis that, in
accordance with GAAP, are or should be included in “purchase of property and equipment” or similar
items reflected in the consolidated statement of cash flows of Company and its Subsidiaries.




          “Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for
such period, excluding any amount not payable in Cash.




          “Consolidated Current Assets” means, as at any date of determination, the total assets of
Company and its Subsidiaries on a consolidated basis that may properly be classified as current
assets in conformity with GAAP, excluding Cash and Cash Equivalents.




          “Consolidated Current Liabilities” means, as at any date of determination, the total
liabilities of Company and its Subsidiaries on a consolidated basis that may properly be classified
as current liabilities in conformity with GAAP, excluding the current portion of long term debt.




          “Consolidated Excess Cash Flow” means, for any period, an amount (if positive) equal to: (i)
the sum, without duplication, of the amounts for such period of (a) Consolidated Adjusted EBITDA,
plus (b) the Consolidated Working Capital Adjustment, minus (ii) the sum, without
duplication, of the amounts for such period of (a) scheduled repayments of Consolidated Total Debt,
(b) Consolidated Capital Expenditures (net of any proceeds of (y) any related financings with
respect to such expenditures and (z) any sales of assets used to finance such expenditures), (c)
Consolidated Cash Interest Expense, (d) provisions for current taxes based on income of Company and
its Subsidiaries and payable in cash with respect to such period, (e) Permitted Acquisitions
financed with Cash, and (f) Transaction Costs.




          “Consolidated Interest Expense” means, for any period, total interest expense (including that
portion attributable to Capital Leases in accordance with GAAP and capitalized interest) of Company
and its Subsidiaries on a consolidated basis with respect to all outstanding Indebtedness of
Company and its Subsidiaries, including all commissions, discounts and other fees and charges owed
with respect to letters of credit and net costs under Interest Rate Agreements, but excluding,
however, any amounts referred to in Section 2.11(d) payable on or before the Closing Date, the
First Restatement Effective Date or the Second Restatement Effective Date.




          “Consolidated Net Income” means, for any period, (i) the net income (or loss) of Company and
its Subsidiaries on a consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP, minus (ii) (a) the income (or loss) of any Person
(other than a Subsidiary of Company) in which any other Person (other than Company or any of its
Subsidiaries) has a joint interest, except to the extent of the amount of dividends or other
distributions actually paid to Company or any of its Subsidiaries by such Person during such
period, (b) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of
Company or is merged into or consolidated with Company or any of its Subsidiaries or that Person’s
assets are acquired by Company or any of its Subsidiaries, (c) the income of any Subsidiary of
Company to the extent that the declaration or payment of dividends




7









 







or similar distributions by that Subsidiary of that income is not at the time permitted by
operation of the terms of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to that Subsidiary, (d) any after-tax gains or
losses attributable to Asset Sales or returned surplus assets of any Pension Plan, and (e) (to the
extent not included in clauses (a) through (d) above) any net extraordinary gains or net
extraordinary losses.




          “Consolidated Senior Debt” means Consolidated Total Debt other than the unsecured Indebtedness
of Company and its Subsidiaries or Indebtedness that is subordinated to the Obligations and is
otherwise permitted hereunder.




          “Consolidated Total Debt” means, as at any date of determination, the aggregate stated balance
sheet amount of all Indebtedness of Company and its Subsidiaries determined on a consolidated basis
in accordance with GAAP.




          “Consolidated Working Capital” means, as at any date of determination, the excess of
Consolidated Current Assets over Consolidated Current Liabilities.




          “Consolidated Working Capital Adjustment” means, for any period on a consolidated basis, the
amount (which may be a negative number) by which Consolidated Working Capital as of the beginning
of such period exceeds (or is less than) Consolidated Working Capital as of the end of such period.




          “Contractual Obligation” means, as applied to any Person, any provision of any Security issued
by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or
other instrument to which that Person is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject.




          “Contributing Guarantors” as defined in Section 7.2.




          “Conversion/Continuation Date” means the effective date of a continuation or conversion, as
the case may be, as set forth in the applicable Conversion/Continuation Notice.




          “Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the
form of Exhibit A-2.




          “Corporate Reorganization” means, collectively, (i) the name change of DTN Holding to Telvent
DTN, Inc., and (ii) the merger of the following entities with and into Telvent DTN, Inc. in the
following sequence, in each case with Telvent DTN, Inc. as the surviving entity, in a manner
contemplated by corporate reorganization documents in form and substance acceptable to the
Administrative Agent: (1) DTN LLC; (2) DTN Information; (3) DTN Leasing; (4) DTN Ag Leasing, LLC;
(5) DTN Meteorlogix Leasing, LLC; (6) DTN Market Leasing, LLC; (7) DTN Energy Leasing, LLC; (8) DTN
HoldCo; (9) DTN; (10) Financial Information Management, Inc.; and (11) Kavouras, Inc.




          “Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit H
delivered by a Credit Party pursuant to Section 5.10.




8









 








          “Credit Date” means the date of a Credit Extension.




          “Credit Document” means any of this Agreement, the Notes, if any, the Collateral Documents,
any Joinder Agreement, any documents or certificates executed by Company in favor of Issuing Bank
relating to Letters of Credit, and all other documents, instruments or agreements executed and
delivered by a Credit Party for the benefit of any Agent, Issuing Bank or any Lender in connection
herewith.




          “Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.




          “Credit Party” means each Guarantor, Company and any Subsidiary thereof that becomes a party
to a Credit Document after the Second Restatement Effective Date.




          “Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement, each of which
is for the purpose of hedging the foreign currency risk associated with Company’s and its
Subsidiaries’ operations and not for speculative purposes.




          “Current Projections” as defined in Section 5.1(i).




          “Default” means a condition or event that, after notice or lapse of time or both, would
constitute an Event of Default.




          “Default Excess” means, with respect to any Defaulting Lender, the excess, if any, of such
Defaulting Lender’s Pro Rata Share of the aggregate outstanding principal amount of Loans of all
Lenders (calculated as if all Defaulting Lenders (including such Defaulting Lender) had funded all
of their respective Defaulted Loans) over the aggregate outstanding principal amount of all Loans
of such Defaulting Lender.




          “Default Period” means, with respect to any Defaulting Lender, the period commencing on the
date of the applicable Funding Default and ending on the earliest of the following dates: (i) the
date on which all Commitments are cancelled or terminated and/or the Obligations are declared or
become immediately due and payable, (ii) the date on which (a) the Default Excess with respect to
such Defaulting Lender shall have been reduced to zero (whether by the funding by such Defaulting
Lender of any Defaulted Loans of such Defaulting Lender or by the non-pro rata application of any
voluntary or mandatory prepayments of the Loans in accordance with the terms of Section 2.13 or
Section 2.14 or by a combination thereof) and (b) such Defaulting Lender shall have delivered to
Company and Administrative Agent a written reaffirmation of its intention to honor its obligations
hereunder with respect to its Commitments, and (iii) the date on which Company, Administrative
Agent and Requisite Lenders waive all Funding Defaults of such Defaulting Lender in writing.




          “Defaulted Loan” as defined in Section 2.22.




          “Defaulting Lender” as defined in Section 2.22.




9









 








          “Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings
and loan association, credit union or like organization, other than an account evidenced by a
negotiable certificate of deposit.




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




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




          “DTN” as defined in the preamble hereto.




          “DTN HoldCo” as defined in the preamble hereto.




          “DTN Holding” as defined in the preamble hereto.




          “DTN Information” as defined in the preamble hereto.




          “DTN Leasing” means DTN Leasing, Inc., a Delaware corporation and its Subsidiaries.




          “DTN LLC” as defined in the preamble hereto.




          “Effective Date Certificate” means an Effective Date Certificate substantially in the form of
Exhibit G-1.




          “Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund
(any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof)
and (ii) any commercial bank, insurance company, investment or mutual fund or other entity that is
an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends
credit or buys loans; provided, no Credit Party shall be an Eligible Assignee and no
Affiliate of any Credit Party shall be an Eligible Assignee.




          “Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was sponsored, maintained or contributed to by, or required to be contributed by, any
Credit Party or any of their respective ERISA Affiliates.




          “Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with
any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous
Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.




          “Environmental Laws” means any and all current or future foreign or domestic, federal or state
(or any subdivision of either of them), statutes, ordinances, orders, rules, regulations,
judgments, Governmental Authorizations, or any other requirements of




10









 







Governmental Authorities relating to (i) environmental matters, including those relating to
any Hazardous Materials Activity; (ii) the generation, use, storage, transportation or disposal of
Hazardous Materials; or (iii) occupational safety and health, industrial hygiene, land use or the
protection of human, plant or animal health or welfare, in any manner applicable to any Credit
Party or any Facility.




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




          “ERISA Affiliate” means, as applied to any Person, (i) any corporation which is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) which is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of any Credit Party shall
continue to be considered an ERISA Affiliate of such Credit Party within the meaning of this
definition with respect to the period such entity was an ERISA Affiliate of such Credit Party and
with respect to liabilities arising after such period for which such Credit Party could be liable
under the Internal Revenue Code or ERISA.




          “ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by any Credit Party or any of their
respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability to any Credit Party or any of their
respective Affiliates pursuant to Section 4063 or 4064 of ERISA; (v) the institution by the PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might
constitute grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on any Credit Party or any of their
respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of any Credit Party or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefore,
or the receipt by any Credit Party or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of
ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise to the imposition on any Credit
Party or any of their




11









 







respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of
the Internal Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of
ERISA in respect of any Employee Benefit Plan in each case to the extent such would have a Material
Adverse Effect; (ix) the assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
any Credit Party or any of their respective ERISA Affiliates in connection with any Employee
Benefit Plan; (x) receipt from the Internal Revenue Service of notice of the failure of any Pension
Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the
Internal Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure
of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section
501(a) of the Internal Revenue Code; or (xi) the imposition of a Lien pursuant to Section
401(a)(29) or 412(n) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension
Plan.




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




          “Event of Default” means each of the conditions or events set forth in Section 8.1.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.




          “Existing Credit Agreement” as defined in the recitals.




          “Existing Lenders” means each financial institution that is a “Lender” under and as defined in
the Existing Credit Agreement immediately prior to the Second Restatement Effective Date.




          “Facility” means any real property (including all buildings, fixtures or other improvements
located thereon) now, hereafter or heretofore owned, leased, operated or used by any Credit Party
or any of their respective predecessors or Affiliates.




          “Fair Share Contribution Amount” as defined in Section 7.2.




          “Fair Share” as defined in Section 7.2.




          “Federal Funds Effective Rate” means, for any day, a floating rate equal to the weighted
average of the rates on overnight federal funds transactions among members of the Federal Reserve
System, as determined by Administrative Agent in its sole discretion, which determination shall be
final, binding and conclusive (absent manifest error).




          “Fee Letter” means that certain letter, dated October 26, 2009, between GECC and the Company
with respect to certain fees to be paid by the Company on the Second Restatement Effective Date, as
such letter may be amended, supplemented or replaced from time to time.




12









 








          “Financial Officer Certification” means, with respect to the financial statements for which
such certification is required, the certification of the chief financial officer of Company that
such financial statements fairly present, in all material respects, the financial condition of
Company and its Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, subject to changes resulting from audit and normal
year-end adjustments.




          “Financial Plan” as defined in Section 5.1(i).




          “First Priority” means, with respect to any Lien purported to be created in any Collateral
pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is
subject, other than any Permitted Lien.




          “First Restatement Effective Date” as defined in the preamble hereto.




          “Fiscal Quarter” means a fiscal quarter of any Fiscal Year.




          “Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on December
31st of each calendar year.




          “Flood Hazard Property” means any Real Estate Asset subject to a mortgage in favor of
Collateral Agent, for the benefit of the Secured Parties, and located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide hazards.




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




          “Funding Default” as defined in Section 2.22.




          “Funding Guarantors” as defined in Section 7.2.




          “Funding Notice” means with respect to Revolving Loans and Swing Line Loans, a notice
substantially in the form of Exhibit A-1.




          “GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2,
United States generally accepted accounting principles in effect as of the date of determination
thereof.




          “GECC” as defined in the preamble hereto.




          “Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto government or Governmental Authority.




          “Governmental Authority” means any federal, state, municipal, national or other government,
governmental department, commission, board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to any government or any court, in each
case whether associated with a state of the United States, the United States, or a foreign entity
or government.





13











 





          “Governmental Authorization” means any permit, license, authorization, plan, directive,
consent order or consent decree of or from any Governmental Authority.




          “Grantor” as defined in the Pledge and Security Agreement.




          “GSCP” as defined in the preamble hereto.




          “Guaranteed Obligations” as defined in Section 7.1.




          “Guarantor” means any Person that delivers a Guaranty pursuant to Section 5.10.




          “Guaranty” means any guaranty made pursuant to Section 7.




          “Hazardous Materials” means any substance, material or waste that is regulated by, or forms
the basis of liability now or hereafter under, any Environmental Laws, including any material or
substance that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous material,”
“hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,”
“contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or other similar term or
phrase under any Environmental Laws, or (b) petroleum or any fraction or by product thereof,
asbestos, polychlorinated biphenyls (PCB’s), or any radioactive substance.




          “Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Materials, and any corrective action or response
action with respect to any of the foregoing.




          “Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement entered into with a
Lender Counterparty in order to satisfy the requirements of this Agreement or otherwise in the
ordinary course of Company’s or any of its Subsidiaries’ businesses.




          “Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from
time to time may be contracted for, charged, or received under the laws applicable to any Lender
which are presently in effect or, to the extent allowed by law, under such applicable laws which
may hereafter be in effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.




          “Historical Financial Statements” means as of the Closing Date, (i) the audited financial
statements of Company and its Subsidiaries, for Fiscal Years 2002, 2003 and 2004, consisting of
balance sheets and the related consolidated statements of income, stockholders’ equity and cash
flows for such Fiscal Years, and (ii) the unaudited financial statements of Company and its
Subsidiaries, for Fiscal Year 2005, consisting of a balance sheet and the related consolidated
statements of income, stockholders’ equity and cash flows for such Fiscal Year, and in the case of
clauses (i) and (ii), certified by the chief financial officer of Company that they fairly present,
in all material respects, the financial condition of Company and its Subsidiaries as




14









 







at the dates indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year end adjustments.




          “Increased-Cost Lenders” as defined in Section 2.23.




          “Indebtedness”, as applied to any Person, means, without duplication, (i) all indebtedness of
such Person for borrowed money; (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with GAAP; (iii) notes
payable and drafts accepted representing extensions of credit whether or not representing
obligations for borrowed money; (iv) any obligation owed by such Person for all or any part of the
deferred purchase price of property or services (excluding any such obligations incurred under
ERISA and customer service agreements), which purchase price is (a) due more than nine months from
the date of incurrence of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument; (v) all indebtedness secured by any Lien on any property or asset owned or held
by that Person regardless of whether the indebtedness secured thereby shall have been assumed by
that Person or is nonrecourse to the credit of that Person; (vi) the face amount of any letter of
credit issued as to which that Person is otherwise liable for reimbursement of drawings; (vii) the
direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary
course of business), co-making, discounting with recourse or sale with recourse by such Person of
the obligation of another; (viii) any obligation of such Person the primary purpose or intent of
which is to provide assurance to an obligee that the obligation of the obligor thereof will be paid
or discharged, or any agreement relating thereto will be complied with, or the holders thereof will
be protected (in whole or in part) against loss in respect thereof, in each case, to the extent
such obligation is indebtedness on the balance sheet of such Person; (ix) any liability of such
Person for an obligation of another through any agreement (contingent or otherwise) (a) to
purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (b) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the case of any agreement
described under subclauses (a) or (b) of this clause (ix), the primary purpose or intent thereof is
as described in clause (viii) above, in each case, to the extent such obligation is indebtedness on
the balance sheet of such Person; and (x) all obligations of such Person in respect of any exchange
traded or over the counter derivative transaction, including, without limitation, any Interest Rate
Agreement and Currency Agreement, whether entered into for hedging or speculative purposes;
provided, in no event shall obligations under any Interest Rate Agreement and any Currency
Agreement be deemed “Indebtedness” for any purpose under Section 6.8; and provided,
further, that Indebtedness shall exclude any obligation under any operating lease (as
determined in accordance with GAAP).




          “Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses,
damages (including natural resource damages), penalties, claims (including Environmental Claims),
actions, judgments, suits, costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action necessary to remove,
remediate, clean up or abate any Hazardous Materials Activity), expenses and disbursements of any
kind or nature whatsoever (including the reasonable fees and disbursements of counsel for
Indemnitees in connection with any investigative, administrative or judicial proceeding commenced
or threatened by any Person, whether or not any such





15









 







Indemnitee shall be designated as a party or a potential party thereto, and any fees or
expenses incurred by Indemnitees in enforcing this indemnity), whether direct, indirect or
consequential and whether based on any federal, state or foreign laws, statutes, rules or
regulations (including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be
imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Credit Documents or the transactions contemplated
hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or
intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including
any sale of, collection from, or other realization upon any of the Collateral or the enforcement of
any Guaranty)); (ii) the statements of any Credit Party contained in the Fee Letter or commitment
letter delivered by any Lender to Company with respect to the transactions contemplated by this
Agreement, the Initial Credit Agreement or the Existing Credit Agreement; or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising from, directly or
indirectly, any past or present activity, operation, land ownership, or practice of Company or any
of its Subsidiaries.




          “Indemnitee” as defined in Section 10.3.




          “Installment” as defined in Section 2.12.




          “Intellectual Property” as defined in the Pledge and Security Agreement.




          “Interest Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Adjusted EBITDA for the four-Fiscal Quarter period then ended, to (ii) Consolidated
Cash Interest Expense for such four-Fiscal Quarter period.




          “Interest Payment Date” means with respect to (i) any Revolving Loan that is a Base Rate Loan
and any Term Loan each April 1, July 1, October 1 and January 1 of each year, commencing on (x)
July 1, 2006, in respect of any Revolving Loan, and (y) July 1, 2007, in respect of any Tranche C
Term Loan, through the final maturity date of such Loan; and (ii) any Revolving Loan that is a
Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan;
provided, in the case of each Interest Period of longer than three months “Interest Payment
Date” shall also include each date that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.




          “Interest Period” means, with respect to any Eurodollar Rate Loan, each period commencing on a
LIBOR Business Day selected by Company pursuant to the Agreement and ending one, two, three or six
months thereafter, as selected by Company in the applicable Funding Notice or
Conversion/Continuation Notice; provided, that the foregoing provision relating to Interest
Periods is subject to the following:





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



16









 






     (b) any Interest Period that would otherwise extend beyond the date set forth in clause
(ii) of the definition of “Revolving Commitment Termination Date” shall end two (2) LIBOR
Business Days prior to such date;




     (c) any Interest Period that begins on the last LIBOR 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 LIBOR Business Day of a calendar
month; and




     (d) Company shall select Interest Periods so as not to require a payment or prepayment
of any Eurodollar Rate Loan during an Interest Period for such Loan.



          “Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedging agreement or other similar agreement or
arrangement, each of which is for the purpose of hedging the interest rate exposure associated with
any Company’s and its Subsidiaries’ operations and not for speculative purposes.




          “Interest Rate Determination Date” means, with respect to any Interest Period, the date that
is two Business Days prior to the first day of such Interest Period.




          “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.




          “Investment” means (i) any direct or indirect purchase or other acquisition by any Credit
Party or any Subsidiary of any Credit Party of, or of a beneficial interest in, any of the
Securities of any other Person (other than, with respect to any Credit Party, any other Credit
Party); (ii) any direct or indirect redemption, retirement, purchase or other acquisition for
value, by any Subsidiary of any Credit Party from any Person (other than any Credit Party), of any
Capital Stock of such Person; and (iii) any direct or indirect loan, advance (other than advances
to employees for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by any Credit Party or any
of its Subsidiaries to any other Person (other than any Credit Party), including all indebtedness
and accounts receivable from that other Person that are not current assets or did not arise from
sales to that other Person in the ordinary course of business. The amount of any Investment shall
be the original cost of such Investment plus the cost of all additions thereto, without any
adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.




          “Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.




          “Issuing Bank” means GECC as Issuing Bank hereunder, together with its permitted successors
and assigns in such capacity.




          “Joinder Agreement” means an agreement substantially in the form of Exhibit L attached to the
Existing Credit Agreement.




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          “Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form; provided, in no event shall any corporate
Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.




          “Landlord Consent and Estoppel” means, with respect to any Leasehold Property, a letter,
certificate or other instrument in writing from the lessor under the related lease, pursuant to
which, among other things, the landlord consents to the granting of a Mortgage on such Leasehold
Property by the Credit Party tenant, such Landlord Consent and Estoppel to be in form and substance
acceptable to Collateral Agent in its reasonable discretion, but in any event sufficient for
Collateral Agent to obtain a Title Policy with respect to such Mortgage.




          “Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent
Agreement substantially in the form of Exhibit K attached to the Initial Credit Agreement, as it
has been or, subject to the approval of Collateral Agent, may be amended, supplemented or otherwise
modified from time to time.




          “Leasehold Property” means any leasehold interest of any Credit Party as lessee under any
lease of real property, other than any such leasehold interest designated from time to time by
Collateral Agent in its reasonable discretion as not being required to be included in the
Collateral.




          “Lender” means each financial institution listed on the signature pages of the Existing Credit
Agreement as a Lender and any other Person made a party hereto pursuant to an Assignment Agreement
or a Joinder Agreement.




          “Lender Consent Letters” means the lender consent letters authorizing the amendment and
restatement of the Existing Credit Agreement.




          “Lender Counterparty” means each Lender or any Affiliate of a Lender counterparty to a Hedge
Agreement (including any Person who is a Lender (and any Affiliate thereof) as of the Closing Date,
the First Restatement Effective Date or the Second Restatement Effective Date but subsequently,
whether before or after entering into a Hedge Agreement, ceases to be a Lender) including, without
limitation, each such Affiliate that enters into a joinder agreement with Collateral Agent.




          “Letter of Credit” means a commercial or standby letter of credit issued or to be issued by
Issuing Bank pursuant to this Agreement.




          “Letter of Credit Sublimit” means the lesser of (i) $2,500,000 and (ii) the aggregate unused
amount of the Revolving Commitments then in effect.




          “Letter of Credit Usage” means, as at any date of determination, the sum of (i) the maximum
aggregate amount which is, or at any time thereafter may become, available for drawing under all
Letters of Credit then outstanding, and (ii) the aggregate amount of all drawings under Letters of
Credit honored by Issuing Bank and not theretofore reimbursed by or on behalf of Company.




18









 








          “Leverage Ratio” means, the ratio as of the last day of any Fiscal Quarter of (i) Consolidated
Total Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal Quarter period
ending on such date.




          “LIBOR Business Day” means a Business Day on which banks in the City of London are generally
open for interbank or foreign exchange transactions




          “Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention agreement, and any
lease in the nature thereof) and any option, trust or other preferential arrangement having the
practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option,
call or similar right of a third party with respect to such Securities.




          “Loan” means a Tranche C Term Loan, a Revolving Loan, a New Term Loan and a Swing Line Loan.




          “Margin Stock” as defined in Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.




          “Material Adverse Effect” means a material adverse effect on and/or material adverse
developments with respect to (i) the business, operations, properties, assets, condition (financial
or otherwise) or prospects of the Credit Parties and their Subsidiaries taken as a whole; (ii) the
ability of any Credit Party to fully and timely perform its Obligations; (iii) the legality,
validity, binding effect or enforceability against a Credit Party of a Credit Document to which it
is a party; or (iv) the rights, remedies and benefits available to, or conferred upon, any Agent
and any Lender or any Secured Party under any Credit Document.




          “Material Contract” means any contract or other arrangement to which any Credit Party or any
of its Subsidiaries is a party (other than the Credit Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.




          “Material Real Estate Asset’’ means (i) (a) any fee-owned Real Estate Asset having a fair
market value in excess of $500,000 as of the date of the acquisition thereof and (b) all Leasehold
Properties other than those with respect to which the aggregate payments under the term of the
lease are less than $200,000 per annum or (ii) any Real Estate Asset that the Requisite Lenders
have reasonably determined is material to the business, operations, properties, assets, condition
(financial or otherwise) or prospects of the Credit Parties and their Subsidiaries taken as a
whole.




          “Maximum Consolidated Capital Expenditures” as defined in Section 6.8(d).




          “Moody’s” means Moody’s Investor Services, Inc.




          “Moody’s Rating” means, at any time, the rating issued by Moody’s and then in effect with
respect to the Company’s senior secured long-term public debt securities without third-party credit
enhancement (it being understood that if the Company does not have any outstanding debt securities
of the type described above but has an indicative rating from



19









 






Moody’s for debt securities of such type, then such indicative rating shall be used for
determining the “Moody’s Rating”).




          “Mortgage” means a Mortgage substantially in the form of Exhibit J attached to the Initial
Credit Agreement, as it has been or may be amended, supplemented or otherwise modified from time to
time.




          “Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as
defined in Section 3(37) of ERISA.




          “NAIC” means The National Association of Insurance Commissioners, and any successor thereto.




          “Narrative Report” means, with respect to the financial statements for which such narrative
report is required, a comparison of the actual financial performance (as set forth on the income
statement) of Company and its Subsidiaries for such month, Fiscal Quarter or Fiscal Year, as
applicable, to the projected financial performance of Company and its Subsidiaries for such month,
Fiscal Quarter or Fiscal Year, as applicable, as set forth in the Financial Plan delivered pursuant
to Section 5.1(i), together with an explanation of any material variances.




          “Net Asset Sale Proceeds” means, with respect to any Asset Sale, an amount equal to: (i) Cash
payments (including any Cash received by way of deferred payment pursuant to, or by monetization
of, a note receivable or otherwise, but only as and when so received) received by any Credit Party
or any Subsidiary of any Credit Party from such Asset Sale, minus (ii) any bona fide direct
costs, fees and expenses incurred in connection with such Asset Sale, including (a) income or gains
taxes payable by the seller as a result of any gain recognized in connection with such Asset Sale,
(b) payment of the outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the stock or assets in question
and that is required to be repaid under the terms thereof as a result of such Asset Sale, (c) a
reasonable reserve for any indemnification payments (fixed or contingent) attributable to seller’s
indemnities and representations and warranties to purchaser in respect of such Asset Sale
undertaken by any Credit Party or any Subsidiary of any Credit Party in connection with such Asset
Sale and (d) any other taxes payable in connection therewith.




          “Net Insurance/Condemnation Proceeds” means an amount equal to: (i) any Cash payments or
proceeds received by any Credit Party (a) under any casualty insurance policy in respect of a
covered loss thereunder or (b) as a result of the taking of any assets of any Credit Party by any
Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of
any such assets to a purchaser with such power under threat of such a taking, minus (ii)
(a) any actual and reasonable costs fees and expenses incurred by any Credit Party in connection
with the adjustment or settlement of any claims of such Credit Party in respect thereof, and (b)
any bona fide direct costs, fees and expenses incurred in connection with any sale of such assets
as referred to in clause (i)(b) of this definition, including income taxes payable as a result of
any gain recognized in connection therewith.




          “New Term Loan Commitments” as defined in Section 2.24.




20









 








          “New Term Loan Exposure” means, with respect to any Lender, as of any date of determination,
the outstanding principal amount of the New Term Loans of such Lender.




          “New Term Loan Lender” as defined in Section 2.24.




          “New Term Loan Maturity Date” means the date that New Term Loans shall become due and payable
in full hereunder, as specified in the applicable Joinder Agreement, including by acceleration or
otherwise.




          “New Term Loans” as defined in Section 2.24.




          “Non-US Lender” as defined in Section 2.20(c).




          “Note” means a Term Loan Note, a Revolving Loan Note or a Swing Line Note.




          “Notice” means a Funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.




          “Obligations” means all obligations of every nature of each Credit Party, including
obligations from time to time owed to the Agents (including former Agents), the Lenders or any of
them and Lender Counterparties, under any Credit Document or Hedge Agreement (including, without
limitation, with respect to a Hedge Agreement, obligations owed thereunder to any person who was a
Lender or an Affiliate of a Lender at the time such Hedge Agreement was entered into), whether for
principal, interest (including interest which, but for the filing of a petition in bankruptcy with
respect to such Credit Party, would have accrued on any Obligation, whether or not a claim is
allowed against such Credit Party for such interest in the related bankruptcy proceeding),
reimbursement of amounts drawn under Letters of Credit, payments for early termination of Hedge
Agreements, fees, expenses, indemnification or otherwise.




          “Obligee Guarantor” as defined in Section 7.7.




          “Organizational Documents” means (i) with respect to any corporation, its certificate or
articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with
respect to any limited partnership, its certificate of limited partnership, as amended, and its
partnership agreement, as amended, (iii) with respect to any general partnership, its partnership
agreement, as amended, and (iv) with respect to any limited liability company, its articles of
organization, as amended, and its operating agreement, as amended. In the event any term or
condition of this Agreement or any other Credit Document requires any Organizational Document to be
certified by a secretary of state or similar governmental official, the reference to any such
“Organizational Document” shall only be to a document of a type customarily certified by such
governmental official.




          “Participant Register” shall have the meaning assigned such term in Section 10.6(g).




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




21









 








          “Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.




          “Permitted Acquisition” means any acquisition by any Credit Party or any of its Subsidiaries,
whether by purchase, merger or otherwise, of all or substantially all of the assets of, all of the
Capital Stock of, or a business line or unit or a division of, any Person; provided,





          (ii) immediately prior to, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing or would result therefrom;




          (iii) all transactions in connection therewith shall be consummated, in all material
respects, in accordance with all applicable laws and in conformity with all applicable
Governmental Authorizations;




          (iv) in the case of the acquisition of Capital Stock, all of the Capital Stock (except
for any such Securities in the nature of directors’ qualifying shares required pursuant to
applicable law) acquired or otherwise issued by such Person or any newly formed Subsidiary
of any Credit Party in connection with such acquisition shall be owned 100% by one or more
Credit Parties, and Company shall have taken, or caused to be taken, as of the date such
Person becomes a Subsidiary of Company, each of the actions set forth in Sections 5.10
and/or 5.11, as applicable;




          (v) Company and its Subsidiaries shall be in compliance with the financial covenants
set forth in Section 6.8 on a pro forma basis after giving effect to such acquisition as of
the last day of the Fiscal Quarter most recently ended, (as determined in accordance with
Section 6.8(e));




          (vi) Company shall have delivered to Administrative Agent (A) at least fifteen (15)
days prior to such proposed acquisition, (i) a Compliance Certificate evidencing compliance
with Section 6.8 as required under clause (iv) above and (ii) all other relevant financial
information with respect to such acquired assets, including, without limitation, the
aggregate consideration for such acquisition and any other information required to
demonstrate compliance with Section 6.8 and (B) promptly upon request by Administrative
Agent, (i) a copy of the purchase agreement related to the proposed Permitted Acquisition
(and any related documents reasonably requested by Administrative Agent) and (ii) quarterly
and annual financial statements of the Person whose Capital Stock or assets are being
acquired for the twelve month (12) month period immediately prior to such proposed Permitted
Acquisition, including any audited financial statements that are available; and




          (vii) any Person or assets or division as acquired in accordance herewith (y) shall be
in similar business or lines of business in which any Credit Party or any of their
Subsidiaries are engaged as of the Second Restatement Effective Date and (z) shall have
generated positive cash flow, on a pro forma basis taking into consideration any cost
savings with respect to such acquisition, for the four quarter period most recently ended
prior to the date of such acquisition.



          “Permitted Liens” means each of the Liens permitted pursuant to Section 6.2.




22









 








          “Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business
trusts or other organizations, whether or not legal entities, and Governmental Authorities.




          “Pledge and Security Agreement” means the First Lien Pledge and Security Agreement executed by
Company substantially in the form of Exhibit I attached to the Initial Credit Agreement, as it has
been or may be amended, supplemented or otherwise modified from time to time.




          “Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing
Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office
of a third party or sub-agent, as appropriate, as such Person may from time to time designate in
writing to Company, Administrative Agent and each Lender.




          “Projections” as defined in Section 4.8 of the Existing Credit Agreement.




          “Pro Rata Share” means (i) with respect to all payments, computations and other matters
relating to the Tranche C Term Loan of any Lender, the percentage obtained by dividing (a) the
Tranche C Term Loan Exposure of that Lender by (b) the aggregate Tranche C Term Loan Exposure of
all Lenders; (ii) with respect to all payments, computations and other matters relating to the
Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued or
participations purchased therein by any Lender or any participations in any Swing Line Loans
purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that
Lender by (b) the aggregate Revolving Exposure of all Lenders; and (iii) with respect to all
payments, computations and other matters relating to the New Term Loan Commitment or New Term
Loans, the percentage obtained by dividing (a) the New Term Loan Exposure of that Lender by (b) the
aggregate New Term Loan Exposure of all New Term Loan Lenders. For all other purposes with respect
to each Lender, “Pro Rata Share” means the percentage obtained by dividing (A) the Tranche C Term
Loan Exposure, the Revolving Exposure and the New Term Loan Exposure of that Lender, by (B) an
amount equal to the sum of the aggregate Tranche C Term Loan Exposure, the aggregate Revolving
Exposure and New Term Loan exposure of all Lenders.




          “Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or
otherwise) then owned by any Credit Party in any real property.




          “Record Document” means, with respect to any Leasehold Property, (i) the lease evidencing such
Leasehold Property or a memorandum thereof, executed and acknowledged by the owner of the affected
real property, as lessor, or (ii) if such Leasehold Property was acquired or subleased from the
holder of a Recorded Leasehold Interest, the applicable assignment or sublease document, executed
and acknowledged by such holder, in each case in form sufficient to give such constructive notice
upon recordation and otherwise in form reasonably satisfactory to Collateral Agent.




23









 








          “Recorded Leasehold Interest” means a Leasehold Property with respect to which a Record
Document has been recorded in all places necessary or desirable, in Collateral Agent’s reasonable
judgment, to give constructive notice of such Leasehold Property to third-party purchasers and
encumbrancers of the affected real property.




          “Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).




          “Register” as defined in Section 2.7(b).




          “Registered Loan” shall have the meaning assigned such term in Section 2.7(b).




          “Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.




          “Regulation FD” means Regulation FD as promulgated by the US Securities and Exchange
Commission under the Securities Act and Exchange Act as in effect from time to time.




          “Reimbursement Date” as defined in Section 2.4(d).




          “Related Fund” means, with respect to any Lender that is an investment fund, any other
investment fund that invests in commercial loans and similar extension of credit and that is
managed or advised by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers, advises or manages a Lender.




          “Related Lender Assignment” means an assignment of all or any portion of a Loan or Commitment
of a Lender to an Affiliate of such Lender or Related Fund of such Lender.




          “Related Lender Register” as defined in Section 2.7(b).




          “Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material
into the indoor or outdoor environment (including the abandonment or disposal of any barrels,
containers or other closed receptacles containing any Hazardous Material), including the movement
of any Hazardous Material through the air, soil, surface water or groundwater.




          “Replacement Lender” as defined in Section 2.23.




          “Requisite Lenders” means one or more Lenders having or holding Tranche C Term Loan Exposure,
New Term Loan Exposure and/or Revolving Exposure and representing more than 50% of the sum of (i)
the aggregate Tranche C Term Loan Exposure of all Lenders, (ii) the aggregate Revolving Exposure of
all Lenders and (iii) the aggregate New Term Loan Exposure of all Lenders.




          “Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of any Credit Party or any Subsidiary of a Credit
Party now or hereafter outstanding, except a dividend payable solely in shares of stock to the
holders of that class; (ii) any redemption, retirement, sinking fund or similar



24









 






payment, purchase or other acquisition for value, direct or indirect, of any shares of any
class of stock of any Credit Party or any Subsidiary of a Credit Party now or hereafter
outstanding; (iii) any payment made to retire, or to obtain the surrender of, any outstanding
warrants, options or other rights to acquire shares of any class of stock of any Credit Party or
any Subsidiary of a Credit Party now or hereafter outstanding; and (iv) management or similar fees
payable to any shareholder of Company other than customary board fees paid to directors.




          “Revolving Commitment” means the commitment of a Lender to make or otherwise fund any
Revolving Loan and to acquire participations in Letters of Credit and Swing Line Loans hereunder
and “Revolving Commitments” means such commitments of all Lenders in the aggregate. The amount of
each Lender’s Revolving Commitment, if any, as of the Second Restatement Effective Date is the
amount set forth by such Lender’s name on Appendix A-2 attached hereto, or in the applicable
Assignment Agreement, as applicable, subject to any adjustment or reduction pursuant to the terms
and conditions hereof. The aggregate amount of the Revolving Commitments as of the Second
Restatement Effective Date is $25,000,000.




          “Revolving Commitment Period” means the period from the Closing Date to but excluding the
Revolving Commitment Termination Date.




          “Revolving Commitment Termination Date” means the earliest to occur of (i) March 10, 2011,
such date being the fifth anniversary of the Closing Date, (ii) the date the Revolving Commitments
are permanently reduced to zero pursuant to Section 2.13(b) or 2.14, and (iii) the date of the
termination of the Revolving Commitments pursuant to Section 8.1.




          “Revolving Exposure” means, with respect to any Lender as of any date of determination, (i)
prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii)
after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding
principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the
aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of
any participations by Lenders in such Letters of Credit), (c) the aggregate amount of all
participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing
under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and
(e) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line
Loans.




          “Revolving Loan” means a Loan made by a Lender to Company pursuant to Section 2.2(a).




          “Revolving Loan Note” means a promissory note in the form of Exhibit B-2, as it may be
amended, supplemented or otherwise modified from time to time.




          “S&P” means Standard & Poor’s Ratings Group, a division of The McGraw-Hill Corporation.




          “S&P Rating” means, at any time, the rating issued by S&P and then in effect with respect to
the Company’s senior secured long-term public debt securities without third-party credit
enhancement (it being understood that if the Company does not have any outstanding debt



25









 






securities of the type described above but has an indicative rating from S&P for debt
securities of such type, then such indicative rating shall be used for determining the “S&P
Rating”).




          “Second Restatement Effective Date” means October 26, 2009.




          “Secured Parties” means the Agents, Lenders and the Lender Counterparties and shall include,
without limitation, all former Agents, Lenders and Lender Counterparties to the extent that any
Obligations owing to such Persons were incurred while such Persons were Agents, Lenders or Lender
Counterparties and such Obligations have not been paid or satisfied in full.




          “Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated or otherwise, or in general any instruments commonly known as
“securities” or any certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire,
any of the foregoing.




          “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.




          “Senior Leverage Ratio” means, the ratio as of the last day of any Fiscal Quarter of (i)
Consolidated Senior Debt as of such day to (ii) Consolidated Adjusted EBITDA for the four-Fiscal
Quarter period ending on such date.




          “Settlement Confirmation” as defined in Section 10.6(b).




          “Settlement Service” as defined in Section 10.6(d).




          “Solvency Certificate” means a Solvency Certificate of the chief financial officer of Company,
substantially in the form of Exhibit G-2.




          “Solvent” means, with respect to any Credit Party, that as of the date of determination, both
(i) (a) the sum of such Credit Party’s debt (including contingent liabilities) does not exceed the
present fair saleable value of such Credit Party’s present assets; (b) such Credit Party’s capital
is not unreasonably small in relation to its business as contemplated on the Second Restatement
Effective Date and reflected in the Projections or with respect to any transaction contemplated or
undertaken after the Second Restatement Effective Date; and (c) such Person has not incurred and
does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due (whether at maturity or otherwise); and
(ii) such Person is “solvent” within the meaning given that term and similar terms under the
Bankruptcy Code and applicable laws relating to fraudulent transfers and conveyances in the
jurisdiction of organization of such Person and the state in which such Person’s chief executive
office is located. For purposes of this definition, the amount of any contingent liability at any
time shall be computed as the amount that, in light of all of the facts and circumstances existing
at such time, represents the amount that can reasonably be expected



26









 






to become an actual or matured liability (irrespective of whether such contingent liabilities
meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).




          “Subject Transaction” as defined in Section 6.8(e).




          “Subsidiary” means, with respect to any Person, any corporation, partnership, limited
liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions) having the power to
direct or cause the direction of the management and policies thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; provided, in determining the percentage of ownership
interests of any Person controlled by another Person, no ownership interest in the nature of a
“qualifying share” of the former Person shall be deemed to be outstanding.




          “Swing Line Lender” means GECC in its capacity as Swing Line Lender hereunder, together with
its permitted successors and assigns in such capacity.




          “Swing Line Loan” means a Loan made by Swing Line Lender to Company pursuant to Section 2.3.




          “Swing Line Note” means a promissory note in the form of Exhibit B-3, as it may be amended,
supplemented or otherwise modified from time to time.




          “Swing Line Sublimit” means the lesser of (i) $5,000,000, and (ii) the aggregate unused amount
of Revolving Commitments then in effect.




          “Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction
or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided, “Tax on the net income” of a
Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person
is organized or in which that Person’s applicable principal office (and/or, in the case of a
Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender,
its lending office) is deemed to be doing business on all or part of the net income, profits or
gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of
a Lender, its applicable lending office).




          “Telvent” as defined in the preamble hereto.




          “Telvent Pledge Agreement” means the Pledge Agreement executed by Telvent substantially in the
form of Exhibit M attached hereto.




          “Term Loan” means a Tranche C Term Loan or a New Term Loan.




          “Term Loan Maturity Date” means the Tranche C Term Loan Maturity Date and the New Term Loan
Maturity Date.




27









 








          “Term Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended,
supplemented or otherwise modified from time to time.




          “Terminated Lender” as defined in Section 2.23.




          “Title Policy” as defined in Section 3.1(i) of the Initial Credit Agreement.




          “Total Utilization of Revolving Commitments” means, as at any date of determination, the sum
of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing Issuing Bank
for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate
principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.




          “Tranche C Term Loan” means a Tranche C Term Loan made by a Lender to Company pursuant to
Section 2.1(a) of the Existing Credit Agreement.




          “Tranche C Term Loan Exposure” means, with respect to any Lender, as of any date of
determination, the outstanding principal amount of the Tranche C Term Loans of such Lender.




          “Tranche C Term Loan Maturity Date” means the earlier of (i) March 10, 2013 and (ii) the date
that all Tranche C Term Loans shall become due and payable in full hereunder, whether by
acceleration or otherwise.




          “Transaction Costs” means the fees, costs and expenses payable by Company or any of Company’s
Subsidiaries on or before the Second Restatement Effective Date in connection with the Corporate
Reorganization and/or the amendments to the Existing Credit Agreement set forth in this Agreement
and occurring on the Second Restatement Effective Date in an amount not to exceed $1,500,000 in the
aggregate.




          “Type of Loan” means (i) with respect to either Term Loans or Revolving Loans, a Base Rate
Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.




          “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in
effect in any applicable jurisdiction.




          “Voluntary Prepayments” means any voluntary prepayments of Consolidated Total Debt (excluding
repayments of Revolving Loans or Swing Line Loans except to the extent the Revolving Commitments
are permanently reduced in connection with such repayments).




     1.2 Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not
otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.
Financial statements and other information required to be delivered by Company to Lenders pursuant
to Section 5.1(a), 5.1(b) and 5.1(c) shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation statements provided for in
Section 5.1(e), if applicable). Subject to the



28









 




foregoing, calculations in connection with the definitions, covenants and other provisions
hereof shall utilize accounting principles and policies in conformity with those used to prepare
the Historical Financial Statements.




     1.3 Interpretation, etc. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference. References herein to
any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an
Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the
word “include” or “including”, when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or matters set forth
immediately following such word or to similar items or matters, whether or not non-limiting
language (such as “without limitation” or “but not limited to” or words of similar import) is used
with reference thereto, but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter. This Agreement
restates and replaces, in its entirety, the Existing Credit Agreement; any reference in any of the
other Credit Documents (except as explicitly provided therein) to the Existing Credit Agreement
(however defined) shall mean this Agreement.


SECTION 2. LOANS AND LETTERS OF CREDIT




     2.1 Term Loans.



          (a) Loan Commitments. Subject to the terms and conditions hereof,





          (i) The Company, Administrative Agent and each Lender (A) acknowledge and agree that as
of the Second Restatement Effective Date, the outstanding principal balance of the Tranche C
Term Loans is $189,686,144.32 and (B) severally agree that such Tranche C Term Loans made by
each Lender under the Existing Credit Agreement shall remain outstanding on and after the
Second Restatement Effective Date.




          (ii) Any amount continued under this Section 2.1(a) that is subsequently repaid or
prepaid may not be reborrowed. Subject to Sections 2.13(a) and 2.14, all amounts owed
hereunder with respect to the Tranche C Term Loans shall be paid in full no later than the
Tranche C Term Loan Maturity Date.



          (b) [Reserved].




     2.2 Revolving Loans.



          (a) Revolving Commitments. During the Revolving Commitment Period, subject to the
terms and conditions hereof, each Lender severally agrees to make Revolving Loans to Company in an
aggregate amount up to but not exceeding such Lender’s Revolving Commitment; provided, that
after giving effect to the making of any Revolving Loans in no event shall the Total Utilization of
Revolving Commitments exceed the Revolving Commitments then in effect. Amounts borrowed pursuant
to this Section 2.2(a) may be repaid and reborrowed during the Revolving Commitment Period. Each
Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all
Revolving Loans and all other amounts




29









 







owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid
in full no later than such date. Any Revolving Loan outstanding under the Existing Credit
Agreement on the Second Restatement Effective Date shall continue to be outstanding and be deemed
to be Revolving Loans made hereunder subject the terms and conditions hereof.




          (b) Borrowing Mechanics for Revolving Loans.





          (i) Except pursuant to 2.4(d), Revolving Loans that are Base Rate Loans shall be made
in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an aggregate
minimum amount of $1,000,000 and integral multiples of $250,000 in excess of that amount.




          (ii) Whenever Company desires that Lenders make Revolving Loans, Company shall deliver
to Administrative Agent a fully executed and delivered Funding Notice no later than 10:00
a.m. (New York City time) at least three Business Days in advance of the proposed Credit
Date in the case of a Eurodollar Rate Loan, and at least one Business Day in advance of the
proposed Credit Date in the case of a Revolving Loan that is a Base Rate Loan. Except as
otherwise provided herein, a Funding Notice for a Revolving Loan that is a Eurodollar Rate
Loan shall be irrevocable on and after the related Interest Rate Determination Date, and
Company shall be bound to make a borrowing in accordance therewith.




          (iii) Notice of receipt of each Funding Notice in respect of Revolving Loans, together
with the amount of each Lender’s Pro Rata Share thereof, if any, together with the
applicable interest rate, shall be provided by Administrative Agent to each applicable
Lender by telefacsimile with reasonable promptness, but (provided Administrative Agent shall
have received such notice by 10:00 a.m. (New York City time)) not later than 2:00 p.m. (New
York City time) on the same day as Administrative Agent’s receipt of such Notice from
Company.




          (iv) Each Lender shall make the amount of its Revolving Loan available to
Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at the Principal Office designated by
Administrative Agent. Except as provided herein, upon satisfaction or waiver of the
conditions precedent specified herein, Administrative Agent shall make the proceeds of such
Revolving Loans available to Company on the applicable Credit Date by causing an amount of
same day funds in Dollars equal to the proceeds of all such Revolving Loans received by
Administrative Agent from Lenders to be credited to the account of Company at the Principal
Office designated by Administrative Agent or such other account as may be designated in
writing to Administrative Agent by Company.



2.3 Swing Line Loans.




          (a) Swing Line Loans Commitments. During the Revolving Commitment Period, subject to
the terms and conditions hereof, Swing Line Lender hereby agrees to make Swing Line Loans to
Company in the aggregate amount up to but not exceeding the Swing Line




30









 







Sublimit; provided, that after giving effect to the making of any Swing Line Loan, in
no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then
in effect. Amounts borrowed pursuant to this Section 2.3 may be repaid and reborrowed during the
Revolving Commitment Period. Swing Line Lender’s Revolving Commitment shall expire on the
Revolving Commitment Termination Date and all Swing Line Loans and all other amounts owed hereunder
with respect to the Swing Line Loans and the Revolving Commitments shall be paid in full no later
than such date.




          (b) Borrowing Mechanics for Swing Line Loans.





          (i) Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount.




          (ii) Whenever Company desires that Swing Line Lender make a Swing Line Loan, Company
shall deliver to Administrative Agent and Swing Line Lender a Funding Notice no later than
12:00 p.m. (New York City time) on the proposed Credit Date.




          (iii) Swing Line Lender shall make the amount of its Swing Line Loan available to
Administrative Agent not later than 2:00 p.m.(New York City time) on the applicable Credit
Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal
Office. Except as provided herein, upon satisfaction or waiver of the conditions precedent
specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans
available to Company on the applicable Credit Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Swing Line Loans received by Administrative Agent
from Swing Line Lender to be credited to the account of Company at Administrative Agent’s
Principal Office, or to such other account as may be designated in writing to Administrative
Agent by Company.




          (iv) With respect to any Swing Line Loans which have not been voluntarily prepaid by
Company pursuant to Section 2.13, Swing Line Lender may at any time in its sole and absolute
discretion, deliver to Administrative Agent (with a copy to Company), no later than 11:00
a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date,
a notice (which shall be deemed to be a Funding Notice given by Company) requesting that
each Lender holding a Revolving Commitment make Revolving Loans that are Base Rate Loans to
Company on such Credit Date in an amount equal to the amount of such Swing Line Loans (the
“Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line
Lender requests Lenders to prepay. Anything contained in this Agreement to the contrary
notwithstanding, (1) the proceeds of such Revolving Loans made by the Lenders other than
Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line
Lender (and not to Company) and applied to repay a corresponding portion of the Refunded
Swing Line Loans and (2) on the day such Revolving Loans are made, Swing Line Lender’s Pro
Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of
a Revolving Loan made by Swing Line Lender to Company, and such portion of the Swing Line
Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no
longer be due under the Swing



31









 






Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s
outstanding Revolving Loans to Company and shall be due under the Revolving Loan Note issued
by Company to Swing Line Lender. Company hereby authorizes Administrative Agent and Swing
Line Lender to charge Company’s accounts with Administrative Agent and Swing Line Lender (up
to the amount available in each such account) in order to immediately pay Swing Line Lender
the amount of the Refunded Swing Line Loans to the extent of the proceeds of such Revolving
Loans made by Lenders, including the Revolving Loans deemed to be made by Swing Line Lender,
are not sufficient to repay in full the Refunded Swing Line Loans. If any portion of any
such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on
behalf of Company from Swing Line Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be ratably shared among
all Lenders in the manner contemplated by Section 2.17.




          (v) If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of any
outstanding Swing Line Loans on or before the third Business Day after demand for payment
thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to,
and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans,
and in an amount equal to its Pro Rata Share of the applicable unpaid amount together with
accrued interest thereon. Upon one Business Day’s notice from Swing Line Lender, each
Lender holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to
its respective participation in the applicable unpaid amount in same day funds at the
Principal Office of Swing Line Lender. In order to evidence such participation each Lender
holding a Revolving Commitment agrees to enter into a participation agreement at the request
of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender. In
the event any Lender holding a Revolving Commitment fails to make available to Swing Line
Lender the amount of such Lender’s participation as provided in this paragraph, Swing Line
Lender shall be entitled to recover such amount on demand from such Lender together with
interest thereon for three Business Days at the rate customarily used by Swing Line Lender
for the correction of errors among banks and thereafter at the Base Rate, as applicable.




          (vi) Notwithstanding anything contained herein to the contrary, (1) each Lender’s
obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans
pursuant to the second preceding paragraph and each Lender’s obligation to purchase a
participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph
shall be absolute and unconditional and shall not be affected by any circumstance, including
without limitation (A) any set-off, counterclaim, recoupment, defense or other right which
such Lender may have against Swing Line Lender, any Credit Party or any other Person for any
reason whatsoever; (B) the occurrence or continuation of a Default or Event of Default; (C)
any adverse change in the business, operations, properties, assets, condition (financial or
otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any other
Credit Document by any party thereto; or (E) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing; provided that such
obligations




32











 






of each Lender are subject to the condition that Swing Line Lender believed in
good faith that all conditions under Section 3.4 to the making of the applicable Refunded
Swing Line Loans or other unpaid Swing Line Loans, were satisfied at the time such Refunded
Swing Line Loans or unpaid Swing Line Loans were made, or the satisfaction of any such
condition not satisfied had been waived by the Requisite Lenders prior to or at the time
such Refunded Swing Line Loans or other unpaid Swing Line Loans were made; and (2) Swing
Line Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not
to do so after the occurrence and during the continuation of a Default or Event of Default
or (B) at a time when a Funding Default exists unless Swing Line Lender has entered into
arrangements satisfactory to it and Company to eliminate Swing Line Lender’s risk with
respect to the Defaulting Lender’s participation in such Swing Ling Loan, including by cash
collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line
Loans.



     2.4 Issuance of Letters of Credit and Purchase of Participations Therein.



          (a) Letters of Credit. During the Revolving Commitment Period, subject to the terms
and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Company
in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided,
(i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of
Credit shall not be less than $50,000 or such lesser amount as is acceptable to Issuing Bank; (iii)
after giving effect to such issuance, in no event shall the Total Utilization of Revolving
Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect to such
issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in
effect; (v) in no event shall any standby Letter of Credit have an expiration date later than the
earlier of (1) the Revolving Commitment Termination Date and (2) the date which is one year from
the date of issuance of such standby Letter of Credit; and (vi) in no event shall any commercial
Letter of Credit (x) have an expiration date later than the earlier of (1) the Revolving Loan
Commitment Termination Date and (2) the date which is 180 days from the date of issuance of such
commercial Letter of Credit or (b) be issued if such commercial Letter of Credit is otherwise
unacceptable to Issuing Bank in its reasonable discretion. Subject to the foregoing, Issuing Bank
may agree that a standby Letter of Credit will automatically be extended for one or more successive
periods not to exceed one year each, unless Issuing Bank elects not to extend for any such
additional period; provided, Issuing Bank shall not extend any such Letter of Credit if it
has received written notice that an Event of Default has occurred and is continuing at the time
Issuing Bank must elect to allow such extension; provided, further, in the event a
Funding Default exists, Issuing Bank shall not be required to issue any Letter of Credit unless
Issuing Bank has entered into arrangements satisfactory to it and Company to eliminate Issuing
Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender,
including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit
Usage. Each letter of credit issued pursuant to the Existing Credit Agreement and outstanding on
the Second Restatement Effective Date shall continue to be outstanding and shall be deemed to be
Letters of Credit hereunder, subject to the terms and conditions hereof.




          (b) Notice of Issuance. Whenever Company desires the issuance of a Letter of Credit,
it shall deliver to Administrative Agent an Issuance Notice no later than 12:00 p.m. (New York City
time) at least three Business Days (in the case of standby letters of credit) or



33









 






five Business Days (in the case of commercial letters of credit), or in each case such shorter period as may be agreed
to by Issuing Bank in any particular instance, in advance of the proposed date of issuance. Upon
satisfaction or waiver of the conditions set forth in Section 3.4, Issuing Bank shall issue the
requested Letter of Credit only in accordance with Issuing Bank’s standard operating procedures.
Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit,
Issuing Bank shall promptly notify each Lender with a Revolving Commitment of such issuance, which
notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a
Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit
pursuant to Section 2.4(e).




          (c) Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments.
In determining whether to honor any drawing under any Letter of Credit by the beneficiary thereof,
Issuing Bank shall be responsible only to examine the documents delivered under such Letter of
Credit with reasonable care so as to ascertain whether they appear on their face to be in
accordance with the terms and conditions of such Letter of Credit. As between Company and Issuing
Bank, Company assumes all risks of the acts and omissions of, or misuse of the Letters of Credit
issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit. In furtherance
and not in limitation of the foregoing, Issuing Bank shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party
in connection with the application for and issuance of any such Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the validity or sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any such 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; (iii)
failure of the beneficiary of any such Letter of Credit to comply fully with any conditions
required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise,
whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or
delay in the transmission or otherwise of any document required in order to make a drawing under
any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary
of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii)
any consequences arising from causes beyond the control of Issuing Bank, including any Governmental
Acts; none of the above shall affect or impair, or prevent the vesting of, any of Issuing Bank’s
rights or powers hereunder. Without limiting the foregoing and in furtherance thereof, any action
taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents
and certificates delivered thereunder, if taken or omitted in good faith, shall not give rise to
any liability on the part of Issuing Bank to Company. Notwithstanding anything to the contrary
contained in this Section 2.4(c), Company shall retain any and all rights it may have against
Issuing Bank for any liability to the extent arising out of the gross negligence or willful
misconduct of Issuing Bank.




          (d) Reimbursement by Company of Amounts Drawn or Paid Under Letters of Credit. In the
event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately
notify Company and Administrative Agent, and Company shall reimburse Issuing Bank on or before the
Business Day immediately following the date on which such drawing is honored (the “Reimbursement
Date”) in an amount in Dollars and in same day funds equal to the amount of such honored drawing;
provided, anything contained herein to the



34









 






contrary notwithstanding, (i) unless Company shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time)
on the date such drawing is honored that Company intends to reimburse Issuing Bank for the amount
of such honored drawing with funds other than the proceeds of Revolving Loans, Company shall be
deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders with
Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in
an amount in Dollars equal to the amount of such honored drawing, and (ii) subject to satisfaction
or waiver of the conditions specified in Section 3.4, Lenders with Revolving Commitments shall, on
the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such honored
drawing, the proceeds of which shall be applied directly by Administrative Agent to reimburse
Issuing Bank for the amount of such honored drawing; and provided further, if for
any reason proceeds of Revolving Loans are not received by Issuing Bank on the Reimbursement Date
in an amount equal to the amount of such honored drawing, Company shall reimburse Issuing Bank, on
demand, in an amount in same day funds equal to the excess of the amount of such honored drawing
over the aggregate amount of such Revolving Loans, if any, which are so received. Nothing in this
Section 2.4(d) shall be deemed to relieve any Lender with a Revolving Commitment from its
obligation to make Revolving Loans on the terms and conditions set forth herein, and Company shall
retain any and all rights it may have against any such Lender resulting from the failure of such
Lender to make such Revolving Loans under this Section 2.4(d).




          (e) Lenders’ Purchase of Participations in Letters of Credit. Immediately upon the
issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to
have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in
such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro
Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any
time may become available to be drawn thereunder. In the event that Company shall fail for any
reason to reimburse Issuing Bank as provided in Section 2.4(d), Issuing Bank shall promptly notify
each Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of
such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the
Revolving Commitments. Each Lender with a Revolving Commitment shall make available to Issuing
Bank an amount equal to its respective participation, in Dollars and in same day funds, at the
office of Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on
the first Business Day (under the laws of the jurisdiction in which such office of Issuing Bank is
located) after the date notified by Issuing Bank. In the event that any Lender with a Revolving
Commitment fails to make available to Issuing Bank on such Business Day the amount of such Lender’s
participation in such Letter of Credit as provided in this Section 2.4(e), Issuing Bank shall be entitled to recover such amount on demand from such
Lender together with interest thereon for three Business Days at the rate customarily used by
Issuing Bank for the correction of errors among banks and thereafter at the Base Rate. Nothing in
this Section 2.4(e) shall be deemed to prejudice the right of any Lender with a Revolving
Commitment to recover from Issuing Bank any amounts made available by such Lender to Issuing Bank
pursuant to this Section in the event that it is determined that the payment with respect to a
Letter of Credit in respect of which payment was made by such Lender constituted gross negligence
or willful misconduct on the part of Issuing Bank. In the event Issuing Bank shall have been
reimbursed by other Lenders pursuant to this Section 2.4(e) for all or any portion of any drawing
honored by Issuing Bank under a Letter of



35









 






Credit, such Issuing Bank shall promptly distribute to each Lender which has paid all amounts payable by it under this Section 2.4(e) with respect to such
honored drawing such Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank
from Company in reimbursement of such honored drawing when such payments are received. Any such
distribution shall be made to a Lender at its primary address set forth below its name on Appendix
B or at such other address as such Lender may request.




          (f) Obligations Absolute. The obligation of Company to reimburse Issuing Bank for
drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by
Lenders pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e) shall be
unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under
all circumstances including any of the following circumstances: (i) any lack of validity or
enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other
right which Company or any Lender may have at any time against a beneficiary or any transferee of
any Letter of Credit (or any Persons for whom any such transferee may be acting), Issuing Bank,
Lender or any other Person or, in the case of a Lender, against Company, whether in connection
herewith, the transactions contemplated herein or any unrelated transaction (including any
underlying transaction between Company or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured); (iii) any draft or other document presented under any 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; (iv) payment by Issuing Bank under any Letter of
Credit against presentation of a draft or other document which does not substantially comply with
the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of the Credit Parties taken as a whole;
(vi) any breach hereof or any other Credit Document by any party thereto; (vii) any other
circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the
fact that an Event of Default or a Default shall have occurred and be continuing; provided,
in each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have
constituted gross negligence or willful misconduct of Issuing Bank under the circumstances in
question.




          (g) Indemnification. Without duplication of any obligation of Company under Section
10.2 or 10.3, in addition to amounts payable as provided herein, Company hereby agrees to protect,
indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs
of internal counsel) which Issuing Bank may incur or be subject to as a consequence, direct or
indirect, of (i) the issuance of any Letter of Credit by Issuing Bank, other than as a result of
(1) the gross negligence or willful misconduct of Issuing Bank or (2) the wrongful dishonor by
Issuing Bank of a proper demand for payment made under any Letter of Credit issued by it, or (ii)
the failure of Issuing Bank to honor a drawing under any such Letter of Credit as a result of any
Governmental Act.




     2.5 Pro Rata Shares; Availability of Funds.



          (a) Pro Rata Shares. All Loans shall be made, and all participations purchased, by
Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood
that no Lender shall be responsible for any default by any other Lender in such



36









 






other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall
any New Term Loan Commitment or any Revolving Commitment of any Lender be increased or decreased as
a result of a default by any other Lender in such other Lender’s obligation to make a Loan
requested hereunder or purchase a participation required hereby.




          (b) Availability of Funds. Unless Administrative Agent shall have been notified by
any Lender prior to the applicable Credit Date that such Lender does not intend to make available
to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date,
Administrative Agent may assume that such Lender has made such amount available to Administrative
Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be
obligated to, make available to Company a corresponding amount on such Credit Date;
provided, however, if Lender has made any amount available to Administrative Agent
on such Credit Date, Administrative Agent shall make such amount available to Company on such
Credit Date. If such corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand
from such Lender together with interest thereon, for each day from such Credit Date until the date
such amount is paid to Administrative Agent, at the customary rate set by Administrative Agent for
the correction of errors among banks for three Business Days and thereafter at the Base Rate. If
such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand
therefor, Administrative Agent shall promptly notify Company and Company shall immediately pay such
corresponding amount to Administrative Agent together with interest thereon, for each day from such
Credit Date until the date such amount is paid to Administrative Agent, at the rate payable
hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.5(b) shall be
deemed to relieve any Lender from its obligation to fulfill its Revolving Commitments hereunder or
to prejudice any rights that Company may have against any Lender as a result of any default by such
Lender hereunder.




     2.6 Use of Proceeds. The proceeds of the Revolving Loans, Swing Line Loans and Letters of
Credit made after the Closing Date shall be applied by Company for working capital, capital
expenditures, and general corporate purposes of Company and its Subsidiaries, including for Permitted Acquisitions; provided, that the Company shall
retain a balance of $5,000,000 of any combination of unencumbered cash and availability under the
Revolving Commitments as set forth in Section 6.9. No portion of the proceeds of any Credit
Extension shall be used in any manner that causes or might cause such Credit Extension or the
application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of
Governors or any other regulation thereof or to violate the Exchange Act.



     2.7 Evidence of Debt; Register; Lenders’ Books and Records; Notes.



          (a) Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an
account or accounts evidencing the Obligations of Company to such Lender, including the amounts of
the Loans made by it and each repayment and prepayment in respect thereof. Any such recordation
shall be conclusive and binding on Company, absent manifest error; provided, that the
failure to make any such recordation, or any error in such recordation, shall not affect any
Lender’s Revolving Commitments or Company’s Obligations in respect of




37









 







any applicable Loans; and provided further, in the event of any inconsistency between the Register and any
Lender’s records, the recordations in the Register shall govern.




          (b) Register. Administrative Agent (or its agent or sub-agent appointed by it) shall
maintain at the Principal Office a register for the recordation of the names and addresses of
Lenders and the Revolving Commitments and Loans (the “Registered Loans”) of each Lender from time
to time (the “Register”). The Register shall be available for inspection by Company or any Lender
(with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to
time upon reasonable prior notice. Administrative Agent shall record, or shall cause to be
recorded, in the Register the Revolving Commitments and the Loans in accordance with the provisions
of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Loans,
and any such recordation shall be conclusive and binding on Company and each Lender, absent
manifest error; provided, failure to make any such recordation, or any error in such
recordation, shall not affect any Lender’s Revolving Commitments or Company’s Obligations in
respect of any Loan. Company hereby designates GECC to serve as Company’s agent solely for
purposes of maintaining the Register as provided in this Section 2.7, and Company hereby agrees
that, to the extent GECC serves in such capacity, GECC and its officers, directors, employees,
agents, sub-agents and affiliates shall constitute “Indemnitees.” In the case of any Related
Lender Assignment, the Lender making such Related Lender Assignment, acting for this purpose as a
non-fiduciary agent of the Company, shall maintain a comparable register on behalf of the
Administrative Agent (the “Related Lender Register”), provided, however that Company and
Administrative Agent shall be entitled to rely solely on the Register maintained by Administrative
Agent. Administrative Agent shall render to Company a monthly accounting of transactions with
respect to the Loans setting forth the balance of the Loans for the immediately preceding month.
Unless Company notifies Administrative Agent in writing of any objection to any such accounting
(specifically describing the basis for such objection) within thirty (30) days thereafter, each and
every such accounting shall, absent demonstrable error, be deemed final, binding and conclusive on
Company in all respects as to all matters reflected therein.




          (c) Notes. If so requested by any Lender with at least two Business Days prior
written notice to Company (with a copy to Administrative Agent), Company shall execute and deliver
to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an
assignee of such Lender pursuant to Section 10.6) a Note or Notes to evidence such Lender’s Tranche
C Term Loan, New Term Loan, Revolving Loan or Swing Line Loan, as the case may be;
provided, however, in connection with any replacement of a lost, stolen or
mutilated Note, such Lender shall provide Company with an affidavit with respect to such lost,
stolen or mutilated Note.




     2.8 Interest on Loans.



          (a) Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid
principal amount thereof from the date made through repayment (whether by acceleration or
otherwise) thereof as follows:





          (i) in the case of Revolving Loans:



38









 






          (1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or




          (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the
Applicable Margin;




          (ii) in the case of Swing Line Loans, at the Base Rate plus the Applicable Margin; and




          (iii) in the case of Tranche C Term Loans:




          (1) if a Base Rate Loan, at the Base Rate plus the Applicable Margin;
or




          (2) if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus
the Applicable Margin.



          (b) The basis for determining the rate of interest with respect to any Loan (except a Swing
Line Loan which can be made and maintained as Base Rate Loans only), and the Interest Period with
respect to any Eurodollar Rate Loan, shall be selected by Company and notified to Administrative
Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as
the case may be. If on any day a Loan is outstanding with respect to which a Funding Notice or
Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with
the terms hereof specifying the applicable basis for determining the rate of interest, then for
that day such Loan shall be a Base Rate Loan.




          (c) In connection with Eurodollar Rate Loans there shall be no more than four (4) Interest
Periods outstanding at any time. In the event Company fails to specify between a Base Rate Loan or
a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such
Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate
Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base
Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan). In the
event Company fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable
Funding Notice or Conversion/Continuation Notice, Company shall be deemed to have selected an
Interest Period of one month. As soon as practicable after 10:00 a.m. (New York City time) on each
Interest Rate Determination Date, Administrative Agent shall determine (which determination shall,
absent manifest error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for
the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone
confirmed in writing) to Company and each Lender.




          (d)
Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate Loans on
the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of Eurodollar Rate
Loans, on the basis of a 360-day year, in each case for the actual number of days elapsed in the
period during which it accrues. In computing interest on any Loan, the date of the making of such
Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Tranche C
Term Loan, the last Interest Payment Date with respect to





39












 




such Tranche C Term Loan or, with respect to a Base Rate Loan being converted from a
Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan,
as the case may be, shall be included, and the date of payment of such Loan or the expiration date
of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted
to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate
Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day
on which it is made, one day’s interest shall be paid on that Loan.




          (e) Except as otherwise set forth herein, interest on each Loan (i) with respect to Revolving
Loans, shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date
with respect to interest accrued on and to each such payment date; (ii) with respect to Tranche C
Term Loans, shall accrue on a daily basis on and through the March 31st, June
30th, September 30th and December 31st most recently ended prior
to such payment date and shall be payable in arrears on each Interest Payment Date; (iii) shall
accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether
voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iv) shall accrue on
a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of
the Loans; provided, however, with respect to any voluntary prepayment of a Base Rate Loan,
accrued interest shall instead be payable on the applicable Interest Payment Date.



          (f) Company agrees to pay to Issuing Bank, with respect to drawings honored under any Letter
of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from
the date such drawing is honored to but excluding the date such amount is reimbursed by or on
behalf of Company at a rate equal to (i) for the period from the date such drawing is honored to
but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder
with respect to Revolving Loans that are Base Rate Loans, and (ii) thereafter, a rate which is 2%
per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving
Loans that are Base Rate Loans.



          (g) Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a
365/366-day year for the actual number of days elapsed in the period during which it accrues, and
shall be payable on demand or, if no demand is made, on the date on which the related drawing under
a Letter of Credit is reimbursed in full. Promptly upon receipt by Issuing Bank of any payment of
interest pursuant to Section 2.8(f), Issuing Bank shall distribute to each Lender, out of the
interest received by Issuing Bank in respect of the period from the date such drawing is honored to
but excluding the date on which Issuing Bank is reimbursed for the amount of such drawing
(including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such
Lender would have been entitled to receive in respect of the letter of credit fee that would have
been payable in respect of such Letter of Credit for such period if no drawing had been honored
under such Letter of Credit. In the event Issuing Bank shall have been reimbursed by Lenders for
all or any portion of such honored drawing, Issuing Bank shall distribute to each Lender which has
paid all amounts payable by it under Section 2.4(e) with respect to such honored drawing such
Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that portion of such
honored drawing so reimbursed by Lenders for the period from the date on which Issuing Bank was so
reimbursed by Lenders to but excluding the date on which such portion of such honored drawing is
reimbursed by Company.



40









 





     2.9 Conversion/Continuation.



          (a) Subject to Section 2.18 and so long as no Default or Event of Default shall have occurred
and then be continuing, Company shall have the option:




          (i) to convert at any time all or any part of any Term Loan or Revolving Loan equal to
$1,000,000 and integral multiples of $250,000 in excess of that amount from one Type of Loan
to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on
the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Company
shall pay all amounts due under Section 2.18 in connection with any such conversion; or




          (ii) upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan,
to continue all or any portion of such Loan equal to $1,000,000 and integral multiples of
$250,000 in excess of that amount as a Eurodollar Rate Loan.



          (b) Company shall deliver a Conversion/Continuation Notice to Administrative Agent no later
than 10:00 a.m. (New York City time) at least one Business Day in advance of the proposed
conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days
in advance of the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). Except as otherwise provided herein, a
Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans (or
telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to effect a conversion or continuation in accordance
therewith.



     2.10 Default Interest. Upon the occurrence and during the continuance of an Event of Default,
the principal amount of all Loans outstanding and, to the extent permitted by applicable law, any
interest payments on the Loans or any fees or other amounts owed hereunder, shall thereafter bear
interest (including post-petition interest in any proceeding under the Bankruptcy Code or other
applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in excess of the
interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of
any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for Base Rate Loans); provided, in the case of Eurodollar Rate
Loans, upon the expiration of the Interest Period in effect at the time any such increase in
interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and
shall thereafter bear interest payable upon demand at a rate which is 2% per annum in excess of the
interest rate otherwise payable hereunder for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this Section 2.10 is not a permitted alternative to
timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or
limit any rights or remedies of Administrative Agent or any Lender.



     2.11 Fees.



          (a) Company agrees to pay to Lenders having Revolving Exposure:




          (i) commitment fees equal to (1) the average of the daily difference between (a) the
Revolving Commitments, and (b) the aggregate principal amount of (x)



41









 






all outstanding Revolving Loans plus (y) the Letter of Credit Usage, times (2) 0.50%
per annum; and




          (ii) letter of credit fees equal to (1) the Applicable Margin for Revolving Loans that
are Eurodollar Rate Loans, times (2) the average aggregate daily maximum amount available to
be drawn under all such Letters of Credit (regardless of whether any conditions for drawing
could then be met and determined as of the close of business on any date of determination).


All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal
Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata
Share thereof.




          (b) Company agrees to pay directly to Issuing Bank, for its own account, the following fees:




          (i) a fronting fee equal to 0.250%, per annum, times the average aggregate daily
maximum amount available to be drawn under all Letters of Credit (determined as of the close
of business on any date of determination); and




          (ii) such documentary and processing charges for any issuance, amendment, transfer or
payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for
such charges and as in effect at the time of such issuance, amendment, transfer or payment,
as the case may be.



          (c) All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of
a 360-day year and the actual number of days elapsed and shall be payable quarterly in arrears on
April 1, July 1, October 1 and January 1 of each year during the Revolving Commitment Period,
commencing on the first such date to occur after the Closing Date, and on the Revolving Commitment
Termination Date.



          (d) In addition to any of the foregoing fees, Company agrees to pay to Agents such other fees
in the amounts and at the times separately agreed upon.



     2.12 Scheduled Payments/Commitment Reductions.



          The principal amounts of the Tranche C Term Loans shall be repaid in consecutive quarterly
installments (each, an “Installment”) in the aggregate amounts set forth below on the quarterly
scheduled payment dates set forth below, commencing January 1, 2010:



	 	 	 	 	 
	 	 	Tranche C Term Loan
	Fiscal Quarter	 	Installments
	January 1, 2010
	 	$	486,374.73	 
	April 1, 2010
	 	$	486,374.73	 
	July 1, 2010
	 	$	486,374.73	 
	October 1, 2010
	 	$	486,374.73	 






42









 






	 	 	 	 	 
	 	 	Tranche C Term Loan
	Fiscal Quarter	 	Installments
	January 1, 2011
	 	$	486,374.73	 
	April 1, 2011
	 	$	486,374.73	 
	July 1, 2011
	 	$	486,374.73	 
	October 1, 2011
	 	$	486,374.73	 
	January 1, 2012
	 	$	486,374.73	 
	April 1, 2012
	 	$	486,374.73	 
	July 1, 2012
	 	$	486,374.73	 
	October 1, 2012
	 	$	486,374.73	 
	January 1, 2013
	 	$	486,374.73	 
	Tranche C Term Loan Maturity Date
	 	$	183,363,272.83	 





Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche C Term Loans in accordance with Sections 2.13,
2.14 and 2.15, as applicable; and (y) the Tranche C Term Loans, together with all other amounts
owed hereunder with respect thereto, shall, in any event, be paid in full no later than the Tranche
C Term Loan Maturity Date.




     2.13 Voluntary Prepayments/Commitment Reductions.



          (a) Voluntary Prepayments.




          (i) Any time and from time to time:




               (1) with respect to Base Rate Loans, Company may prepay any such Loans on any
Business Day in whole or in part, in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount;




               (2) with respect to Eurodollar Rate Loans, Company may prepay any such Loans on
any Business Day in whole or in part in an aggregate minimum amount of $1,000,000
and integral multiples of $250,000 in excess of that amount; and




               (3) with respect to Swing Line Loans, Company may prepay any such Loans on any
Business Day in whole or in part in an aggregate minimum amount of $500,000, and in
integral multiples of $100,000 in excess of that amount.




          (ii) All such prepayments shall be made:




               (1) upon not less than one Business Day’s prior written or telephonic notice in
the case of Base Rate Loans;



43









 






               (2) upon not less than three Business Days’ prior written or telephonic notice
in the case of Eurodollar Rate Loans; and




               (3) upon written or telephonic notice on the date of prepayment, in the case of
Swing Line Loans;


in each case given to Administrative Agent or Swing Line Lender, as the case may be, by 12:00 p.m.
(New York City time) on the date required and, if given by telephone, promptly confirmed in writing
to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or
original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or
telephone to each Lender) or Swing Line Lender, as the case may be. Upon the giving of any such
notice, the principal amount of the Loans specified in such notice shall become due and payable on
the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified
in Section 2.15(a).




          (b) Voluntary Commitment Reductions.




          (i) Company may, upon not less than three Business Days’ prior written or telephonic
notice confirmed in writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or telephone to each
applicable Lender), at any time and from time to time terminate in whole or permanently
reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the
amount by which the Revolving Commitments exceed the Total Utilization of Revolving
Commitments at the time of such proposed termination or reduction; provided, any
such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount
of $1,000,000 and integral multiples of $250,000 in excess of that amount.




          (ii) Company’s notice to Administrative Agent shall designate the date (which shall be
a Business Day) of such termination or reduction and the amount of any partial reduction,
and such termination or reduction of the Revolving Commitments shall be effective on the
date specified in Company’s notice and shall reduce the Revolving Commitment of each Lender
proportionately to its Pro Rata Share thereof.



     2.14 Mandatory Prepayments/Commitment Reductions.



          (a) Asset Sales. No later than the first Business Day following the date of receipt
by any Credit Party or any Subsidiaries of any Credit Party of any Net Asset Sale Proceeds, Company
shall prepay the Loans as set forth in Section 2.15(b) in an aggregate amount equal to such Net
Asset Sale Proceeds; provided, (i) so long as no Default or Event of Default shall have
occurred and be continuing, and (ii) to the extent that aggregate Net Asset Sale Proceeds from the
Closing Date through the applicable date of determination do not exceed $500,000, Company shall
have the option, directly or through one or more of its Subsidiaries, to invest Net Asset Sale
Proceeds within one hundred eighty days of receipt thereof in long-term productive assets of the
general type used in the business of the Credit Parties and their Subsidiaries or Permitted
Acquisitions in accordance with Section 6.9; provided further, pending



44









 




any such investment all such Net Asset Sale Proceeds shall be applied to prepay Revolving
Loans to the extent outstanding (without a permanent reduction in Revolving Commitments).




          (b) Insurance/Condemnation Proceeds. No later than the first Business Day following
the date of receipt by any Credit Party, or Administrative Agent as loss payee, of any Net
Insurance/Condemnation Proceeds, Company shall prepay the Loans as set forth in Section 2.15(b) in
an aggregate amount equal to such Net Insurance/Condemnation Proceeds; provided, (i) so
long as no Default or Event of Default shall have occurred and be continuing, and (ii) to the
extent that aggregate Net Insurance/Condemnation Proceeds does not exceed $500,000, per Fiscal
Year, such Credit Party shall have the option, directly or through one or more Credit Parties to
invest such Net Insurance/Condemnation Proceeds within one hundred eighty days of receipt thereof
in long term productive assets of the general type used in the business of the Credit Parties and
their Subsidiaries, which investment may include the repair, restoration or replacement of the
applicable assets thereof; provided further, pending any such investment all such
Net Insurance/Condemnation Proceeds, as the case may be, shall be applied to prepay Revolving Loans
to the extent outstanding (without a permanent reduction in Revolving Commitments).



          (c) Issuance of Equity Securities. On the date of receipt by any Credit Party or any
Subsidiary of any Credit Party of any Cash proceeds from a capital contribution to, or the issuance
of any Capital Stock of, any Credit Party or any Subsidiary of any Credit Party (other than (i)
pursuant to any employee stock or stock option compensation plan, (ii) issuances for which the
proceeds are used to consummate one or more Permitted Acquisitions or (iii) issuances of equity to
Telvent or its Affiliates), Company shall prepay the Loans as set forth in Section 2.15(b) in an
aggregate amount equal to 75% of such proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith, including reasonable legal fees and
expenses; provided, during any period in which the Leverage Ratio (determined for any such
period by reference to the most recent Compliance Certificate delivered pursuant to Section 5.1(d)
calculating the Leverage Ratio) shall be less than 3.00:1.00, Company shall only be required to
make the prepayments and/or reductions otherwise required hereby in an amount equal to 50% of such
net proceeds.



          (d) Issuance of Debt. On the date of receipt by any Credit Party or any Subsidiary of
any Credit Party of any Cash proceeds from the incurrence of any Indebtedness of any Credit Party
or any Subsidiary of any Credit Party (other than with respect to any Indebtedness permitted to be
incurred pursuant to Section 6.1), Company shall prepay the Loans as set forth in Section 2.15(b)
in an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and
commissions and other reasonable costs and expenses associated therewith, including reasonable
legal fees and expenses.



          (e) Consolidated Excess Cash Flow. In the event that there shall be Consolidated
Excess Cash Flow for any Fiscal Year (commencing in the second Fiscal Quarter of the Fiscal Year
ending 2006, and thereafter, for each full Fiscal Year), Company shall, no later than ninety days
after the end of such Fiscal Year, prepay the Loans as set forth in Section 2.15(b) in an aggregate
amount equal to the excess of (A) 75% of such Consolidated Excess Cash Flow over (B) 100% of
Voluntary Prepayments; provided, during any Fiscal Year in which the Leverage Ratio
(determined for such Fiscal Year by reference to the Compliance Certificate



45









 




delivered pursuant to Section 5.1(d) calculating the Leverage Ratio as of the last day of such
Fiscal Year) shall be 3.00:1.00 or less, Company shall only be required to make the prepayments
otherwise required hereby in an amount equal to the excess of (A) 50% of such Consolidated Excess
Cash Flow over (B) 100% of Voluntary Prepayments.




          (f) Revolving Loans and Swing Loans. Company shall from time to time prepay first,
the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that the Total
Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then
in effect.



          (g) Prepayment Certificate. Concurrently with any prepayment of the Loans, Company
shall deliver to Administrative Agent a certificate of an Authorized Officer demonstrating the
calculation of the amount of the applicable net proceeds or Consolidated Excess Cash Flow, as the
case may be. In the event that Company shall subsequently determine that the actual amount
received exceeded the amount set forth in such certificate, Company shall promptly make an
additional prepayment of the Loans in an amount equal to such excess, and Company shall
concurrently therewith deliver to Administrative Agent a certificate of an Authorized Officer
demonstrating the derivation of such excess.



     2.15 Application of Prepayments/Reductions.



          (a) Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan
pursuant to Section 2.13(a) shall be applied as specified by Company in the applicable notice of
prepayment; provided, in the event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied as follows:



     first, to repay outstanding Swing Line Loans to the full extent thereof;



     second, to repay outstanding Revolving Loans to the full extent thereof; and




third, to prepay the Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) and further applied on a pro rata basis to the
remaining scheduled Installments of principal of the Tranche C Term Loans and the New Term
Loans.



          (b) Application of Mandatory Prepayments by Type of Loans. Any amount required to be
paid pursuant to Sections 2.14(a) through 2.14(e) shall be applied as follows:




first, to prepay Term Loans on a pro rata basis (in accordance with the respective
outstanding principal amounts thereof) and further applied on a pro rata basis to the
remaining scheduled Installments of principal of the Tranche C Term Loans and the New Term
Loans;




second, to prepay the Swing Line Loans to the full extent thereof;




third, to prepay the Revolving Loans to the full extent thereof;




fourth, to prepay outstanding reimbursement obligations with respect to Letters of Credit;



46









 






fifth, to cash collateralize Letters of Credit;




sixth, to pay any remaining Obligations; and




seventh, to Company.



          (c) Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.
Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied
first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in
each case in a manner which minimizes the amount of any payments required to be made by Company
pursuant to Section 2.18(c).



     2.16 General Provisions Regarding Payments.



          (a) All payments by Company of principal, interest, fees and other Obligations shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or
condition, and delivered to Administrative Agent not later than 12:00 p.m. (New York City time) on
the date due at the Principal Office designated by Administrative Agent for the account of Lenders;
for purposes of computing interest and fees, funds received by Administrative Agent after that time
on such due date shall be deemed to have been paid by Company on the next succeeding Business Day.



          (b) All payments in respect of the principal amount of any Loan (other than voluntary
prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in
respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be
applied to the payment of interest then due and payable before application to principal.



          (c) Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute
to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable
Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together
with all other amounts due thereto, including, without limitation, all fees payable with respect
thereto, to the extent received by Administrative Agent.



          (d) Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its
Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.



          (e) Subject to the provisos set forth in the definition of “Interest Period”, whenever any
payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is
not a Business Day, such payment shall be made on the next succeeding Business Day and, with
respect to Revolving Loans only, such extension of time shall be included in the computation of the
payment of interest hereunder or of the Revolving Commitment fees hereunder.



47









 





          (f) Company hereby authorizes Administrative Agent to charge Company’s accounts with
Administrative Agent in order to cause timely payment to be made to Administrative Agent of all
principal, interest, fees and expenses due hereunder (subject to sufficient funds being available
in its accounts for that purpose).



          (g) Administrative Agent shall deem any payment by or on behalf of Company hereunder that is
not made in same day funds prior to 12:00 p.m. (New York City time) to be a non-conforming payment.
Any such payment shall not be deemed to have been received by Administrative Agent until the later
of (i) the time such funds become available funds, and (ii) the applicable next Business Day.
Administrative Agent shall give prompt telephonic notice to Company and each applicable Lender
(confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute
or become a Default or Event of Default in accordance with the terms of Section 8.1(a). Interest
shall continue to accrue on any principal as to which a non-conforming payment is made until such
funds become available funds (but in no event less than the period from the date of such payment to
the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from
the date such amount was due and payable until the date such amount is paid in full.



          (h) If an Event of Default shall have occurred and is continuing and not otherwise been
waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1,
all payments or proceeds received by Agents hereunder in respect of any of the Obligations, shall
be applied in accordance with the application arrangements described in Section 7.2 of the Pledge
and Security Agreement.



     2.17 Ratable Sharing. Lenders hereby agree among themselves that, except as otherwise
provided in the Collateral Documents with respect to amounts realized from the exercise of rights
with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other
than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through
the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the
enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a
deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of
Credit, fees and other amounts then due and owing to such Lender hereunder or under the other
Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than
the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other
Lender, then the Lender receiving such proportionately greater payment shall (a) notify
Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion
of such payment to purchase participations (which it shall be deemed to have purchased from each
seller of a participation simultaneously upon the receipt by such seller of its portion of such
payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them;
provided, if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of
Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent of such recovery,
but without interest. Company expressly consents to the foregoing arrangement and agrees that



48









 




any holder of a participation so purchased may exercise any and all rights of banker’s lien,
set-off or counterclaim with respect to any and all monies owing by Company to that holder with
respect thereto as fully as if that holder were owed the amount of the participation held by that
holder.




     2.18 Making or Maintaining Eurodollar Rate Loans.



          (a) Inability to Determine Applicable Interest Rate. In the event that Administrative
Agent shall have reasonably determined, on any Interest Rate Determination Date with respect to any
Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market
adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on
the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall on
such date give notice (by telefacsimile or by telephone confirmed in writing) to Company and each
Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar
Rate Loans until such time as Administrative Agent notifies Company and Lenders that the
circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or
Conversion/Continuation Notice given by Company with respect to the Loans in respect of which such
determination was made shall be deemed to be rescinded by Company.



          (b) Illegality or Impracticability of Eurodollar Rate Loans. In the event that on any
date any Lender shall have reasonably determined (which determination shall be made only after
consultation with Company and Administrative Agent) that the making, maintaining or continuation of
its Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such Lender in good
faith with any law, treaty, governmental rule, regulation, guideline or order (or would conflict
with any such treaty, governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful), or (ii) has become
impracticable, as a result of contingencies occurring after the date hereof which materially and
adversely affect the London interbank market or the position of such Lender in that market, then,
and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give
notice (by telefacsimile or by telephone confirmed in writing) to Company and Administrative Agent
of such determination (which notice Administrative Agent shall promptly transmit to each other
Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert
Loans to, Eurodollar Rate Loans shall be suspended until such determination (as determined by such
Lender in its reasonable judgment) is no longer valid or applicable or such notice shall be
withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender
relates to a Eurodollar Rate Loan then being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan
as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s
obligation to maintain its outstanding Eurodollar Rate Loans (the
“Affected Loans”) shall be
terminated at the earlier to occur of the expiration of the Interest Period then in effect with
respect to the Affected Loans or when required by law, and (4) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination. Notwithstanding the
foregoing, to the extent a determination by an Affected Lender as described above relates to a
Eurodollar Rate Loan then being requested by Company pursuant to a Funding Notice or a
Conversion/Continuation Notice, Company shall have the option, subject to the provisions of Section
2.18(c), to rescind such Funding Notice or



49









 




Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile or by
telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the
Affected Lender gives notice of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as provided in the
immediately preceding sentence, nothing in this Section 2.18(b) shall affect the obligation of any
Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to,
Eurodollar Rate Loans in accordance with the terms hereof.




          (c) Compensation for Breakage or Non-Commencement of Interest Periods. Company shall
compensate each Lender, upon written request by such Lender (which request shall set forth the
basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including
any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar
Rate Loans and any loss, expense or liability sustained by such Lender in connection with the
liquidation or re-employment of such funds but excluding loss of anticipated profits) which such
Lender may sustain: (i) if for any reason (other than a default by such Lender) a borrowing of any
Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a
telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan
does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic
request for conversion or continuation; (ii) if any prepayment or other principal payment of, or
any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate
Loans is not made on any date specified in a notice of prepayment given by Company.



          (d) Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an
Affiliate of such Lender.



          (e) Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of all
amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though
such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of
a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and
having a maturity comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in
the United States of America; provided, however, each Lender may fund each of its
Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized
only for the purposes of calculating amounts payable under this Section 2.18 and under Section
2.19.



     2.19 Increased Costs; Capital Adequacy.



          (a) Compensation For Increased Costs and Taxes. Subject to the provisions of Section
2.20 (which shall be controlling with respect to the matters covered thereby), in the event that
any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall
reasonably determine that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof (including the



50









 




introduction of any new law, treaty or governmental rule, regulation or order), or any
determination of a court or governmental authority, in each case that becomes effective after the
date hereof, or compliance by such Lender with any guideline, request or directive issued or made
after the date hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law): (i) subjects such Lender (or its applicable lending
office) to any additional Tax (other than any Tax on the overall net income of such Lender) with
respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder
or thereunder or any payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable
any reserve (including any marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits
or other liabilities in or for the account of, or advances or loans by, or other credit extended
by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or
other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate); or (iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder
or the London interbank market; and the result of any of the foregoing is to increase the cost to
such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with respect thereto;
then, in any such case, Company shall promptly pay to such Lender, upon receipt of the statement
referred to in the next sentence, such additional amount or amounts (in the form of an increased
rate of, or a different method of calculating, interest or otherwise as such Lender in its
reasonable discretion shall determine) as may be necessary to compensate such Lender for any such
increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver
to Company (with a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to such Lender under this Section
2.19(a).




          (b) Capital Adequacy Adjustment. In the event that any Lender (which term shall
include Issuing Bank for purposes of this Section 2.19(b)) shall have reasonably determined that
the adoption, effectiveness, phase-in or applicability after the Second Restatement Effective Date
of any law, rule or regulation (or any provision thereof) regarding capital adequacy, or any change
therein or in the interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration thereof, or compliance
by any Lender (or its applicable lending office) with any guideline, request or directive regarding
capital adequacy (whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the rate of return on
the capital of such Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans or Revolving Commitments or Letters of Credit, or participations
therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a
level below that which such Lender or such controlling corporation could have achieved but for such
adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration
the policies of such Lender or such controlling corporation with regard to capital adequacy), then
from time to time, within five Business Days after receipt by Company from such Lender of the
statement referred to in the next sentence, Company shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such controlling corporation on an after-tax basis for
such



51









 




reduction. Such Lender shall deliver to Company (with a copy to Administrative Agent) a
written statement, setting forth in reasonable detail the basis for calculating the additional
amounts owed to Lender under this Section 2.19(b).




     2.20 Taxes; Withholding, etc.



          (a) Payments to Be Free and Clear. All sums payable by any Credit Party hereunder and
under the other Credit Documents shall (except to the extent required by law) be paid free and
clear of, and without any deduction or withholding on account of, any Tax (other than a Tax on the
net income of any Lender) imposed, levied, collected, withheld or assessed by or within the United
States of America or any political subdivision in or of the United States of America or any other
jurisdiction from or to which a payment is made by or on behalf of any Credit Party or by any
federation or organization of which the United States of America or any such jurisdiction is a
member at the time of payment.



          (b) Withholding of Taxes. If any Credit Party or any other Person is required by law
to make any deduction or withholding on account of any such Tax from any sum paid or payable by any
Credit Party to Administrative Agent or any Lender (which term shall include Issuing Bank for
purposes of this Section 2.20(b)) under any of the Credit Documents: (i) Company shall notify
Administrative Agent of any such requirement or any change in any such requirement as soon as
Company becomes aware of it; (ii) Company shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party)
for its own account or (if that liability is imposed on Administrative Agent or such Lender, as the
case may be) on behalf of and in the name of Administrative Agent or such Lender; (iii) the sum
payable by such Credit Party in respect of which the relevant deduction, withholding or payment is
required shall be increased to the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to what it would have received had no such deduction,
withholding or payment been required or made; and (iv) within thirty days after paying any sum from
which it is required by law to make any deduction or withholding, and within thirty days after the
due date of payment of any Tax which it is required by clause (ii) above to pay, Company shall
deliver to Administrative Agent evidence satisfactory to the other affected parties of such
deduction, withholding or payment and of the remittance thereof to the relevant taxing or other
authority; provided, no such additional amount shall be required to be paid to any Lender under
clause (iii) above except to the extent that any change after the date hereof (in the case of each
Lender listed on the signature pages hereof on the Closing Date) or after the effective date of the
Assignment Agreement pursuant to which such Lender became a Lender (in the case of each other
Lender) in any such requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or payment from that in
effect at the date hereof or at the date of such Assignment Agreement, as the case may be, in
respect of payments to such Lender.



          (c) Evidence of Exemption From U.S. Withholding Tax. Each Lender that is not a United
States Person (as such term is defined in Section 7701(a)(30) of the Internal Revenue Code) for
U.S. federal income tax purposes (a “Non-US Lender”) shall deliver to Administrative Agent and
Company (or in the case of an assignee pursuant to a Related Lender



52









 




Assignment that is not delivered to the Administrative Agent in accordance with Section
10.6(c)(i), to the assigning Lender only, and in the case of a participant, to the Lender granting
the participation only), on or prior to the Second Restatement Effective Date (in the case of each
Lender party hereto on the Second Restatement Effective Date) or on or prior to the date of the
Assignment Agreement pursuant to which it becomes a Lender (in the case of each other Lender), and
at such other times as may be necessary in the determination of Company or Administrative Agent
(each in the reasonable exercise of its discretion), (i) two original copies of Internal Revenue
Service Form W-8BEN, W-8IMY or W-8ECI (or any successor forms), properly completed and duly
executed by such Lender, and such other documentation required under the Internal Revenue Code and
reasonably requested by Company to establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to any payments to such Lender of
principal, interest, fees or other amounts payable under any of the Credit Documents, or (ii) if
such Lender is not a “bank” or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver either Internal Revenue Service Form W-8BEN, W-8IMY or W-8ECI pursuant to
clause (i) above, a Certificate re Non-Bank Status together with two original copies of Internal
Revenue Service Form W-8BEN (or any successor form), properly completed and duly executed by such
Lender, and such other documentation required under the Internal Revenue Code and reasonably
requested by Company to establish that such Lender is not subject to deduction or withholding of
United States federal income tax with respect to any payments to such Lender of interest payable
under any of the Credit Documents. Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax withholding matters pursuant to
this Section 2.20(c) hereby agrees, from time to time after the initial delivery by such Lender of
such forms, certificates or other evidence, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence obsolete or inaccurate in any material respect,
that such Lender shall promptly deliver to Administrative Agent and Company (or in the case of an
assignee pursuant to a Related Lender Assignment that is not delivered to the Administrative Agent
in accordance with Section 10.6(c)(i), to the assigning Lender only, and in the case of a
participant, to the Lender granting the participation only) two new original copies of Internal
Revenue Service Form W-8BEN, W-8IMY or W-8ECI, or a Certificate re Non-Bank Status and two original
copies of Internal Revenue Service Form W-8BEN, W-8IMY or W-8ECI (or any successor form), as the
case may be, properly completed and duly executed by such Lender, and such other documentation
required under the Internal Revenue Code and reasonably requested by Company to confirm or
establish that such Lender is not subject to deduction or withholding of United States federal
income tax with respect to payments to such Lender under the Credit Documents, or notify
Administrative Agent and Company, or the assigning Lender, as applicable, of its inability to
deliver any such forms, certificates or other evidence. Company shall not be required to pay any
additional amount to any Non-US Lender under Section 2.20(b)(iii) if such Lender shall have failed
(1) to deliver the forms, certificates or other evidence referred to in the second sentence of this
Section 2.20(c), or (2) to notify Administrative Agent and Company, or the assigning Lender, as
applicable, of its inability to deliver any such forms, certificates or other evidence, as the case
may be; provided, if such Lender shall have satisfied the requirements of the first
sentence of this Section 2.20(c) on the Second Restatement Effective Date or on the date of the
Assignment Agreement pursuant to which it became a Lender, as applicable, nothing in this last
sentence of Section 2.20(c) shall relieve Company of its obligation to pay any additional amounts
pursuant this Section 2.20 in the event that, as a result of any


53









 






 change in any applicable law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described herein.




     2.21 Obligation to Mitigate. Each Lender (which term shall include Issuing Bank for purposes
of this Section 2.21) agrees that, as promptly as practicable after the officer of such Lender
responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of
the occurrence of an event or the existence of a condition that would cause such Lender to become
an Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19
or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any
applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or
maintain its Credit Extensions, including any Affected Loans, through another office of such
Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof
the circumstances which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such Lender pursuant to
Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its
reasonable discretion, the making, issuing, funding or maintaining of such Revolving Commitments,
Loans or Letters of Credit through such other office or in accordance with such other measures, as
the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters
of Credit or the interests of such Lender; provided, such Lender will not be obligated to
utilize such other office pursuant to this Section 2.21 unless Company agrees to pay all
incremental expenses incurred by such Lender as a result of utilizing such other office as
described in clause (i) above. A certificate as to the amount of any such expenses payable by
Company pursuant to this Section 2.21 (setting forth in reasonable detail the basis for requesting
such amount) submitted by such Lender to Company (with a copy to Administrative Agent) shall be
conclusive absent manifest error.



     2.22 Defaulting Lenders. Anything contained herein to the contrary notwithstanding, in the
event that any Lender, other than at the direction or request of any regulatory agency or
authority, defaults (a “Defaulting Lender”) in its
obligation to fund (a “Funding Default”) any
Revolving Loan which it would otherwise be required to fund pursuant to the terms hereof or its
portion of any unreimbursed payment under Section 2.3(b)(iv) or 2.4(e) (in each case, a “Defaulted
Loan”), then (a) during any Default Period with respect to such Defaulting Lender, such Defaulting
Lender shall be deemed not to be a “Lender” for purposes of voting on any matters (including the
granting of any consents or waivers) with respect to any of the Credit Documents; (b) to the extent
permitted by applicable law, until such time as the Default Excess with respect to such Defaulting
Lender shall have been reduced to zero, (i) any voluntary prepayment of the Revolving Loans shall,
if Company so directs at the time of making such voluntary prepayment, be applied to the Revolving
Loans of other Lenders as if such Defaulting Lender had no Revolving Loans outstanding and the
Revolving Exposure of such Defaulting Lender were zero, and (ii) any mandatory prepayment of the
Revolving Loans shall, if Company so directs at the time of making such mandatory prepayment, be
applied to the Revolving Loans of other Lenders (but not to the Revolving Loans of such Defaulting
Lender) as if such Defaulting Lender had funded all Defaulted Loans of such Defaulting Lender, it
being understood and agreed that Company shall be entitled to retain any portion of any mandatory
prepayment of the Revolving Loans that is not paid to such Defaulting Lender solely as a result




54












 




of the operation of the provisions of this clause (b); (c) such Defaulting Lender’s Revolving
Commitment and outstanding Revolving Loans and such Defaulting Lender’s Pro Rata Share of the
Letter of Credit Usage shall be excluded for purposes of calculating the Revolving Commitment fee
payable to Lenders in respect of any day during any Default Period with respect to such Defaulting
Lender, and such Defaulting Lender shall not be entitled to receive any Revolving Commitment fee
pursuant to Section 2.11 with respect to such Defaulting Lender’s Revolving Commitment in respect
of any Default Period with respect to such Defaulting Lender; and (d) the Total Utilization of
Revolving Commitments as at any date of determination shall be calculated as if such Defaulting
Lender had funded all Defaulted Loans of such Defaulting Lender. No Revolving Commitment of any
Lender shall be increased or otherwise affected, and, except as otherwise expressly provided in
this Section 2.22, performance by Company of its obligations hereunder and the other Credit
Documents shall not be excused or otherwise modified as a result of any Funding Default or the
operation of this Section 2.22. The rights and remedies against a Defaulting Lender under this
Section 2.22 are in addition to other rights and remedies which Company may have against such
Defaulting Lender with respect to any Funding Default and which Administrative Agent or any Lender
may have against such Defaulting Lender with respect to any Funding Default.




     2.23 Removal or Replacement of a Lender. Anything contained herein to the contrary
notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give
notice to Company that such Lender is an Affected Lender or that such Lender is entitled to receive
payments under Section 2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to
be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect,
and (iii) such Lender shall fail to withdraw such notice within five Business Days after Company’s
request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) the
Default Period for such Defaulting Lender shall remain in effect, and (iii) such Defaulting Lender
shall fail to cure the default as a result of which it has become a Defaulting Lender within five
Business Days after Company’s request that it cure such default; or (c) in connection with any
proposed amendment, modification, termination, waiver or consent with respect to any of the
provisions hereof as contemplated by Section 10.5(b), the consent of Requisite Lenders shall have
been obtained but the consent of one or more of other Lenders other than the Lender acting as
Administrative Agent (each a “Non-Consenting Lender”) whose consent is required shall not have been
obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or
Non-Consenting Lender (the “Terminated Lender”), Company may, by giving written notice to
Administrative Agent and any Terminated Lender of its election to do so, elect to cause such
Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding
Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a
“Replacement Lender”) in accordance with the provisions of Section 10.6 and Terminated Lender shall
pay any fees payable thereunder in connection with such assignment; provided, (1) on the
date of such assignment, the Replacement Lender shall pay to Terminated Lender an amount equal to
the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding
Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that have been
funded by such Terminated Lender, together with all then unpaid interest with respect thereto at
such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such
Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Company shall pay
any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; or



55









 




otherwise as if it were a prepayment and (3) in the event such Terminated Lender is a
Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to
each matter in respect of which such Terminated Lender was a Non-Consenting Lender;
provided, Company may not make such election with respect to any Terminated Lender that is
also an Issuing Bank unless, prior to the effectiveness of such election, Company shall have caused
each outstanding Letter of Credit issued thereby to be cancelled. Upon the prepayment of all
amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving
Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes
hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall
survive as to such Terminated Lender.




     2.24 Incremental Facility. Subject to pro forma compliance (after giving effect to the New
Term Loans) with a Leverage Ratio which is .25x more restrictive than the then-applicable Leverage
Ratio under Section 6.8(c) at such date of determination, Company may by written notice to the
Administrative Agent elect to request the establishment of new term loan commitments (the “New Term
Loan Commitments”), by an amount not in excess of $25,000,000 in the aggregate. The notice shall
specify (A) the date (the “Increased Amount Date”) on which Company proposes that the New Term Loan
Commitments shall be effective, which shall be a date not less than 10 Business Days after the date
on which such notice is delivered to Administrative Agent and (B) the identity of each Lender or
other Person that is an Eligible Assignee (“New Term Loan Lender”) to whom Company proposes any
portion of such New Term Loan Commitments be allocated and the amounts of such allocations;
provided that any Lender approached to provide all or a portion of the New Term Loan
Commitments may elect or decline, in its sole discretion, to provide a New Term Loan Commitment.
Such New Term Loan Commitments shall become effective, as of the Increased Amount Date; provided
that (1) no Default or Event of Default shall exist on the Increased Amount Date before or after
giving effect to such New Term Loan Commitments; (2) both before and after giving effect to the
making of the New Term Loans, each of the conditions set forth in Section 3.4 shall be satisfied;
(3) Company and its Subsidiaries shall be in pro forma compliance with each of the covenants set
forth in Section 6.8 as of the last day of the most recently ended Fiscal Quarter after giving
effect to such New Term Loan Commitments; (4) the New Term Loan Commitments shall be effected
pursuant to one or more Joinder Agreements executed and delivered by Company, the New Term Loan
Lender and Administrative Agent, and each of which shall be recorded in the Register and each New
Term Loan Lender shall be subject to the requirements set forth in Section 2.20(c); (5) Company
shall make any payments required pursuant to Section 2.18(c) in connection with the New Term Loan
Commitments; and (6) Company shall deliver or cause to be delivered any legal opinions or other
documents reasonably requested by Administrative Agent in connection with such transaction similar
to those delivered as of the date hereof.



          On the Increased Amount Date on which the New Term Loan Commitments are effective, subject to
the satisfaction of the foregoing terms and conditions, (i) each New Term Loan Lender shall make a
Loan to Company (a “New Term Loan”) in an amount equal to its New Term Loan Commitment, and (ii)
each New Term Loan Lender shall become a Lender hereunder with respect to the New Term Loan
Commitment and the New Term Loans made pursuant thereto.




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          Administrative Agent shall notify Lenders promptly upon receipt of Company’s notice of the
Increased Amount Date and in respect thereof the New Term Loan Lenders, subject to the assignments
contemplated by this Section.




          The terms and provisions of the New Term Loans and New Term Loan Commitments shall be, except
as otherwise set forth herein or in the Joinder Agreement, identical to the Tranche C Term Loans.
In any event (i) the weighted average life to maturity of all New Term Loans shall be no shorter
than the weighted average life to maturity of the Tranche C Terms Loans, (ii) the New Term Loan
Maturity Date shall be no later than the final maturity of the Tranche C Term Loans and (iii) the
rate of interest applicable to the New Term Loans shall be determined by Company and the applicable
New Term Loan Lenders and shall be set forth in each applicable Joinder Agreement; provided
however that the interest rate applicable to the New Term Loans shall not be greater than
the highest interest rate that may, under any circumstances, be payable with respect to Tranche C
Term Loans plus 0.50% per annum unless the interest rate with respect to the Tranche C Term Loan is
increased so as to equal the interest rate applicable to the New Term Loans. Each Joinder
Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement
and the other Credit Documents as may be necessary or appropriate, in the opinion of the
Administrative Agent and Company to effect the provision of this Section 2.24.




SECTION 3. CONDITIONS PRECEDENT




     3.1 Closing Date. The obligation of each Lender to make a Credit Extension on the Closing
Date was subject to the satisfaction, or waiver in accordance with Section 10.5, of the conditions
set forth in Section 3.1 of the Initial Credit Agreement.



     3.2 First Restatement Effective Date. The amendments set forth in the Existing Credit
Agreement and the occurrence of the borrowing of the Tranche C Term Loans thereunder were subject
to the satisfaction, or waiver in accordance with Section 10.5, of the conditions set forth in
Section 3.2 of the Existing Credit Agreement.



     3.3 Second Restatement Effective Date. The amendments set forth herein shall be effective as
of the date on which each of the following conditions shall have been satisfied (or waived in
accordance with Section 10.5 of the Existing Credit Agreement):



          (a) Company (or its predecessors-in-interest) shall have made a Voluntary Prepayment on or
prior to the Second Restatement Effective Date (and the Administrative Agent acknowledges that such
Voluntary Prepayment was made on October 21, 2009) to be applied to the Tranche C Term Loans on a
pro rata basis in an aggregate amount not less than $10,000,000.




          (b) The Administrative Agent shall have received copies of executed signature pages to this
Agreement from (i) the Company and (ii) the Administrative Agent on behalf of Requisite Lenders (as
defined in the Existing Credit Agreement), which have executed and delivered Lender Consent
Letters.




          (c) Company shall have delivered to the Collateral Agent a complete and correct executed copy
of the Telvent Pledge Agreement along with stock certificates evidencing



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all certificated shares of Company to be pledged pursuant to the Telvent Pledge Agreement,
accompanied by corresponding stock powers executed in blank.




          (d) Company shall have delivered to Collateral Agent updated schedules to this Agreement and
to the Pledge and Security Agreement.




          (e) Company shall have delivered to Collateral Agent a Collateral Questionnaire completed and
executed by Company reflecting the Corporate Reorganization.




          (f) Company shall have delivered to Collateral Agent a duly executed and notarized mortgage
amendment providing for a fully perfected Lien in favor of the Collateral Agent in all right, title
and interest of Company in the Closing Date Mortgaged Property, together with a date down
endorsement to each Title Policy, issued by an insurer acceptable to the Collateral Agent, insuring
the Collateral Agent’s Lien on such real property and containing such endorsements as the
Collateral Agent may reasonably require (it being understood that the amount of coverage,
exceptions to coverage and status of title set forth in such policy shall be acceptable to the
Collateral Agent);




          (g) Company shall have paid (i) all fees specified in the Fee Letter and (ii) fees, costs and
expenses owing to the Administrative Agent and its counsel invoiced to Company on or before the
Second Restatement Effective Date and reimbursable by Company under the terms of the Existing
Credit Agreement.




          (h) Subject to Section 5.15, Collateral Agent shall have received evidence that Company shall
have taken or caused to be taken any other action, executed and delivered or caused to be executed
and delivered any other agreement, document and instrument (including, without limitation, UCC
financing statements, originals of securities, instruments and chattel paper and any agreements
governing deposit and/or securities accounts as provided therein, in each case, to the extent
reasonably required by the Collateral Agent) and made or caused to be made any other filing and
recording (other than as set forth herein) reasonably required by Collateral Agent.




          (i) Lenders and their respective counsel shall have received originally executed copies of the
favorable written opinions of Kutak Rock LLP and Fredrikson & Byron, P.A., counsel for Credit
Parties, in the form of Exhibit D-1 and Exhibit D-2, respectively and of in-house counsel for
Telvent and Squire, Sanders & Dempsey L.L.P., counsel for Telvent, in the form of Exhibit D-3 and
Exhibit D-4, respectively, and as to such other matters as Administrative Agent may reasonably
request, dated as of the Second Restatement Effective Date and otherwise in form and substance
reasonably satisfactory to Administrative Agent (and each Credit Party hereby instructs such
counsel to deliver such opinions to Agents and Lenders).




          (j) The Administrative Agent shall have received evidence satisfactory to it in its reasonable
discretion that the Corporate Reorganization has been consummated.




          (k) The Administrative Agent shall have received a copy of the resolutions, in form and
substance reasonably satisfactory to the Administrative Agent, of the board of directors or other
governing body, as applicable, of Company (or a duly authorized committee thereof) authorizing (A)
the execution, delivery and performance of this Agreement (and any other



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amendments or agreements relating to this Agreement to which it is a party) and (B) the
extensions of credit contemplated hereunder.




          (l) The Administrative Agent shall have received a copy of the resolutions, in form and
substance reasonably satisfactory to the Administrative Agent, of the board of directors or other
governing body, as applicable, of Telvent (or a duly authorized committee thereof) authorizing the
execution, delivery and performance of the Pledge Agreement (and any other amendments or agreements
relating to the Pledge Agreement to which it is a party).




          (m) The Administrative Agent shall have received true and complete copies of the certificate
of incorporation and by laws (or equivalent organizational documents) of (A) Company and (B)
Telvent as of the Second Restatement Effective Date; provided that, in lieu of delivery of each of
the documents set forth in this Section 3.3(l)(B), Company may deliver a certificate executed by an
Authorized Officer of Company certifying that there have been no material amendments to those
documents previously delivered to the Administrative Agent on the Closing Date pursuant to Section
3.1 of the Initial Credit Agreement.




          (n) On the Second Restatement Effective Date, Administrative Agent shall have received a
Solvency Certificate from the Company, dated the Second Restatement Effective Date and addressed to
Administrative Agent and the Lenders and in form, scope and substance satisfactory to
Administrative Agent, and demonstrating that after giving effect to the transactions contemplated
by this Agreement, the Company is and will be Solvent.




          (o) Company shall have delivered to Administrative Agent an originally executed Effective Date
Certificate, together with all attachments thereto.




     3.4 Conditions to Each Credit Extension.



          (a) Conditions Precedent. The obligation of each Lender to make any Loan, or Issuing
Bank to issue any Letter of Credit, on any Credit Date, are subject to the satisfaction, or waiver
in accordance with Section 10.5, of the following conditions precedent:





          (i) Administrative Agent (and Swing Line Lender in the case of any Swing Line Loan)
shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the
case may be;




          (ii) after making the Credit Extensions requested on such Credit Date, the Total
Utilization of Revolving Commitments shall not exceed the Revolving Commitments then in
effect;




          (iii) as of such Credit Date, the representations and warranties contained herein and
in the other Credit Documents shall be true and correct in all material respects on and as
of that Credit Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier date, in which
case such representations and warranties shall have been true and correct in all material
respects on and as of such earlier date;



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          (iv) as of such Credit Date, no Default or Event of Default shall have occurred and be
continuing or would result from the consummation of the applicable Credit Extension;




          (v) on or before the date of issuance of any Letter of Credit, Administrative Agent
shall have received all other information required by the applicable Issuance Notice, and
such other documents or information as Issuing Bank may reasonably require in connection
with the issuance of such Letter of Credit;




          (vi) the Chief Financial Officer of the Company shall have delivered an Officer’s
Certificate representing and warranting and otherwise demonstrating to the satisfaction of
Agents that, as of such Credit Date, Company reasonably expects, after giving effect to the
proposed borrowing and based upon good faith determinations and projections consistent with
the Financial Plan, to be in compliance with all operating and financial covenants set forth
in this Agreement as of the last day of the current Fiscal Quarter;




          (vii) as of such Credit Date, the Leverage Ratio determined as of such date after
giving effect to the contemplated Credit Extension shall not exceed the maximum Leverage
Ratio permitted as of the last day of the immediately succeeding Fiscal Quarter pursuant to
Section 6.8; and




          (viii) after giving effect to such Credit Extension and the use of proceeds thereof the
aggregate Cash and Cash Equivalents of Company and its Subsidiaries will not exceed
$12,500,000.


Any Agent or Requisite Lenders shall be entitled, but not obligated to, request and receive, prior
to the making of any Credit Extension, additional information reasonably satisfactory to the
requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment
of such Agent or Requisite Lender such request is warranted under the circumstances.




          (b) Notices. Any Notice shall be executed by an Authorized Officer in a writing
delivered to Administrative Agent. In lieu of delivering a Notice, Company may give Administrative
Agent telephonic notice by the required time of any proposed borrowing, conversion/continuation or
issuance of a Letter of Credit, as the case may be; provided each such notice shall be
promptly confirmed in writing by delivery of the applicable Notice to Administrative Agent on or
before the applicable date of borrowing, continuation/conversion or issuance. Neither
Administrative Agent nor any Lender shall incur any liability to Company in acting upon any
telephonic notice referred to above that Administrative Agent believes in good faith to have been
given by a duly authorized officer or other person authorized on behalf of Company or for otherwise
acting in good faith.




SECTION 4. REPRESENTATIONS AND WARRANTIES




          In order to induce Lenders and Issuing Bank to enter into this Agreement and to make each
Credit Extension to be made thereby, each Credit Party represents and warrants to




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each Lender and Issuing Bank, on the Second Restatement Effective Date and on each Credit
Date, that the following statements are true and correct:




     4.1 Organization; Requisite Power and Authority; Qualification. Each of Company and its
Subsidiaries (a) is duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization as identified in Schedule 4.1, (b) has all requisite power and
authority to own and operate its properties, to carry on its business as now conducted and as
proposed to be conducted, to enter into the Credit Documents to which it is a party and to carry
out the transactions contemplated thereby, and (c) is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing
has not had, and could not be reasonably expected to have, a Material Adverse Effect.



     4.2 Capital Stock and Ownership. The Capital Stock of each of the Credit Parties has been
duly authorized and validly issued and is fully paid and non-assessable. Except as set forth on
Schedule 4.2, as of the date hereof, there is no existing option, warrant, call, right, commitment
or other agreement to which any Credit Party is a party requiring, and there is no membership
interest or other Capital Stock of any Credit Party outstanding which upon conversion or exchange
would require, the issuance by any Credit Party of any additional membership interests or other
Capital Stock of any Credit Party or other Securities convertible into, exchangeable for or
evidencing the right to subscribe for or purchase, a membership interest or other Capital Stock of
any Credit Party. Schedule 4.2 correctly sets forth the ownership interest of each Credit Party in
their respective Subsidiaries as of the Second Restatement Effective Date.



     4.3 Due Authorization. The execution, delivery and performance of the Credit Documents have
been duly authorized by all necessary action on the part of each Credit Party that is a party
thereto.



     4.4 No Conflict. The execution, delivery and performance by Credit Parties of the Credit
Documents to which they are parties and the consummation of the transactions contemplated by the
Credit Documents do not and will not (a) violate any provision of any law or any governmental rule
or regulation applicable to any Credit Party, any of the Organizational Documents of any Credit
Party, or any order, judgment or decree of any court or other agency of government binding on any
Credit Party, except to the extent such violation could not be reasonably expected to have a
Material Adverse Effect; (b) conflict with, result in a breach of or constitute (with due notice or
lapse of time or both) a default under any Contractual Obligation of any Credit Party, except to
the extent such conflict, breach or default could not reasonably be expected to have a Material
Adverse Effect; (c) result in or require the creation or imposition of any Lien upon any of the
properties or assets of any Credit Party (other than any Liens created under any of the Credit
Documents in favor of Collateral Agent, on behalf of Secured Parties); or (d) require any approval
of stockholders, members or partners or any approval or consent of any Person under any Contractual
Obligation of any Credit Party, except for such approvals or consents which will be obtained on or
before the Second Restatement Effective Date and disclosed in writing to Lenders and except for any
such approvals or consents the failure of which to obtain will not have a Material Adverse Effect.



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     4.5 Governmental Consents. The execution, delivery and performance by Credit Parties of the
Credit Documents to which they are parties and the consummation of the transactions contemplated by
the Credit Documents do not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Authority except for filings and
recordings with respect to the Collateral to be made, or otherwise delivered to Collateral Agent
for filing and/or recordation, as of the Second Restatement Effective Date and except for any such
registrations, consents, approvals, notices or other actions the failure of which to make will not
have a Material Adverse Effect.



     4.6 Binding Obligation. Each Credit Document has been duly executed and delivered by each
Credit Party that is a party thereto and is the legally valid and binding obligation of such Credit
Party, enforceable against such Credit Party, in accordance with its respective terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or
limiting creditors’ rights generally or by equitable principles relating to enforceability.



     4.7 Historical Financial Statements. The Historical Financial Statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position, on a
consolidated basis, of the Persons described in such financial statements as at the respective
dates thereof and the results of operations and cash flows, on a consolidated basis, of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to changes resulting from audit and normal year-end adjustments.
As of the Second Restatement Effective Date, neither Company nor any of its Subsidiaries has any
contingent liability or liability for taxes, long-term lease or unusual forward or long-term
commitment that is not reflected in the Historical Financial Statements or the notes thereto and
which in any such case is material in relation to the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company and any of its Subsidiaries taken as a
whole. Notwithstanding the foregoing, any representations made pursuant to this Section 4.7 with
respect to the audited financial statements for Fiscal Year 2003 and Fiscal Year 2004 and the
unaudited financial statements for Fiscal Year 2005 shall be made only with respect to the best
knowledge of Company.



     4.8 [Reserved].



     4.9 No Material Adverse Change. Since December 31, 2005, no event, circumstance or change has
occurred that has caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect.



     4.10 No Restricted Junior Payments. Since December 31, 2005, neither Company nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as permitted pursuant to
Section 6.5 and except for the payment of a dividend to the members of DTN Holding Company, LLC in
connection with the Refinancing (as defined in the Initial Credit Agreement).



     4.11 Adverse Proceedings, etc. There are no Adverse Proceedings, individually or in the
aggregate, that could reasonably be expected to have a Material Adverse Effect. Neither



62









 




Company nor any of its Subsidiaries (a) is in violation of any applicable laws (including
Environmental Laws) that, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or (b) is subject to or in default with respect to any final judgments,
writs, injunctions, decrees, rules or regulations of any court or any federal, state, municipal or
other governmental department, commission, board, bureau, agency or instrumentality, domestic or
foreign, that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.




     4.12 Payment of Taxes. Except as otherwise permitted under Section 5.3, all tax returns and
reports of any Credit Party required to be filed by any of them have been timely filed, and all
taxes shown on such tax returns to be due and payable and all assessments, fees and other
governmental charges upon any Credit Party and upon their respective properties, assets, income,
businesses and franchises which are due and payable have been paid when due and payable. Company
knows of no proposed tax assessment against any Credit Party which is not being actively contested
by any Credit Party in good faith and by appropriate proceedings; provided, such reserves
or other appropriate provisions, if any, as shall be required in conformity with GAAP shall have
been made or provided therefor.



     4.13 Properties.



          (a) Title. The Company and/or its Subsidiaries has (i) good, sufficient and legal
title to (in the case of fee interests in real property), (ii) valid leasehold interests in (in the
case of leasehold interests in real or personal property), and (iii) good title to (in the case of
all other personal property), all of the properties and assets reflected in the Historical
Financial Statements referred to in Section 4.7 and in the most recent financial statements
delivered pursuant to Section 5.1, in each case except for assets disposed of since the date of
such financial statements in the ordinary course of business or as otherwise permitted under
Section 6.9. Except as permitted by this Agreement, all such properties and assets are free and
clear of Liens.




          (b) Real Estate. As of the Second Restatement Effective Date, Schedule 4.13 contains
a true, accurate and complete list of (i) all Real Estate Assets, and (ii) all leases, subleases or
assignments of leases (together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Estate Asset of any Credit Party, regardless of
whether such Credit Party is the landlord or tenant (whether directly or as an assignee or
successor in interest) under such lease, sublease or assignment. Each agreement listed in clause
(ii) of the immediately preceding sentence is in full force and effect and Company does not have
knowledge of any default that has occurred and is continuing thereunder, and each such agreement
constitutes the legally valid and binding obligation of each applicable Credit Party, enforceable
against such Credit Party in accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by equitable principles.




     4.14 Environmental Matters. Neither Company nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written order, consent decree or
settlement agreement with any Person relating to any Environmental Law, any Environmental Claim, or
any Hazardous Materials Activity that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. Neither Company nor any of



63









 




its Subsidiaries has received any letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9604) or any
comparable state law. There are and, to each of Company’s and its Subsidiaries’ knowledge, have
been, no conditions, occurrences, or Hazardous Materials Activities which could reasonably be
expected to form the basis of an Environmental Claim against any Credit Party that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse Effect. No Credit Party
nor, to any Credit Party’s knowledge, any predecessor of any Credit Party has filed any notice
under any Environmental Law indicating past or present treatment of Hazardous Materials at any
Facility, and no Credit Party’s operations involves the generation, transportation, treatment,
storage or disposal of hazardous waste, as defined under 40 C.F.R. Parts 260-270 or any state
equivalent. Compliance with all current or reasonably foreseeable future requirements pursuant to
or under Environmental Laws could not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect. No event or condition has occurred or is occurring with
respect to any Credit Party relating to any Environmental Law, any Release of Hazardous Materials,
or any Hazardous Materials Activity which individually or in the aggregate has had, or could
reasonably be expected to have, a Material Adverse Effect.




     4.15 No Defaults. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or conditions contained
in any of its Contractual Obligations, and no condition exists which, with the giving of notice or
the lapse of time or both, could constitute such a default, except in any case, where the
consequences, direct or indirect, of such default or defaults, if any, could not reasonably be
expected to have a Material Adverse Effect.



     4.16 Material Contracts. Schedule 4.16 contains a true, correct and complete list of all the
Material Contracts in effect on the Second Restatement Effective Date, and except as described
thereon, all such Material Contracts are in full force and effect and no defaults currently exist
thereunder which could reasonably be expected to have, a Material Adverse Effect.



     4.17 Governmental Regulation. Neither Company nor any of its Subsidiaries is subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal Power Act or the
Investment Company Act of 1940 or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or which may otherwise render all or any portion of the
Obligations unenforceable. Neither Company nor any of its Subsidiaries is a “registered investment
company” or a company “controlled” by a “registered investment company” or a “principal
underwriter” of a “registered investment company” as such terms are defined in the Investment
Company Act of 1940.



     4.18 Margin Stock. Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the purpose of purchasing
or carrying any Margin Stock. No part of the proceeds of the Loans made to such Credit Party will
be used to purchase or carry any such Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any such Margin Stock or for any purpose that violates, or is inconsistent
with, the provisions of Regulation T, U or X of the Board of Governors.



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     4.19 Employee Matters. Neither Company nor any of its Subsidiaries is engaged in any unfair
labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a)
no unfair labor practice complaint pending against any Credit Party, or to the best knowledge of
Company, threatened against any of them before the National Labor Relations Board and no grievance
or arbitration proceeding arising out of or under any collective bargaining agreement that is so
pending against any Credit Party or to the best knowledge of Company, threatened against any of
them, (b) no strike or work stoppage in existence or threatened involving any Credit Party that
could reasonably be expected to have a Material Adverse Effect, and (c) to the best knowledge of
Company, no union representation question existing with respect to the employees of any Credit
Party and, to the best knowledge of Company, no union organization activity that is taking place,
except (with respect to any matter specified in clause (a), (b) or (c) above, either individually
or in the aggregate) such as is not reasonably likely to have a Material Adverse Effect.



     4.20 Employee Benefit Plans. Company, each of its Subsidiaries and each of their respective
ERISA Affiliates are in compliance with all applicable provisions and requirements of ERISA and the
Internal Revenue Code and the regulations and published interpretations thereunder with respect to
each Employee Benefit Plan, and have performed all their obligations in all material respects under
each Employee Benefit Plan. Each Employee Benefit Plan which is intended to qualify under Section
401(a) of the Internal Revenue Code has received a favorable determination letter or opinion letter
from the Internal Revenue Service indicating that such Employee Benefit Plan is so qualified or the
form of the Employee Benefit Plan has been approved and nothing has occurred subsequent to the
issuance of such determination letter or opinion letter which would cause such Employee Benefit
Plan to lose its qualified status. No liability to the PBGC (other than required premium
payments), the Internal Revenue Service, any Employee Benefit Plan or any trust established under
Title IV of ERISA has been or is expected to be incurred by Company, any of its Subsidiaries or any
of their ERISA Affiliates. No ERISA Event has occurred or is reasonably expected to occur. Except
to the extent required under Section 4980B of the Internal Revenue Code or similar state laws, no
Employee Benefit Plan provides health or welfare benefits (through the purchase of insurance or
otherwise) for any retired or former employee of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates. The present value of the aggregate benefit liabilities under each
Pension Plan, if any, sponsored, maintained or contributed to by Company, any of its Subsidiaries
or any of their ERISA Affiliates, (determined as of the end of the most recent plan year on the
basis of the actuarial assumptions specified for funding purposes in the most recent actuarial
valuation for such Pension Plan), did not exceed the aggregate current value of the assets of such
Pension Plan. As of the most recent valuation date for each Multiemployer Plan, if any, for which
the actuarial report is available, the potential liability of Company, its Subsidiaries and their
respective ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the
meaning of Section 4203 of ERISA), when aggregated with such potential liability for a complete
withdrawal from all Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA is zero. Company, each of its Subsidiaries and each of their ERISA Affiliates have
complied with the requirements of Section 515 of ERISA with respect to each Multiemployer Plan and
are not in material “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments
to a Multiemployer Plan.



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     4.21 Certain Fees. No broker’s or finder’s fee or commission will be payable with respect to
the transactions contemplated hereby except as payable to the Agents and Lenders.



     4.22 Solvency. The Credit Parties are and, upon the incurrence of any Obligation by any
Credit Party on any date on which this representation and warranty is made, will be, Solvent.



     4.23 Compliance with Statutes, etc. Each of Company and its Subsidiaries is in compliance
with all applicable statutes, regulations and orders of, and all applicable restrictions imposed
by, all Governmental Authorities, in respect of the conduct of its business and the ownership of
its property (including compliance with all applicable Environmental Laws with respect to any Real
Estate Asset or governing its business and the requirements of any permits issued under such
Environmental Laws with respect to any such Real Estate Asset or the operations of any Credit
Party), except such non-compliance that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.



     4.24 Disclosure. No representation or warranty of any Credit Party contained in any Credit
Document or in any other documents, certificates or written statements furnished to any Agent or
Lender by or on behalf of any Credit Party for use in connection with the transactions contemplated
hereby contains any untrue statement of a material fact or omits to state a material fact (known to
Company, in the case of any document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in which the same were
made. Any projections and pro forma financial information contained in such materials are based
upon good faith estimates and assumptions believed by Company to be reasonable at the time made, it
being recognized by Lenders that such projections as to future events are not to be viewed as facts
and that actual results during the period or periods covered by any such projections may differ
from the projected results. There are no facts known (or which should upon the reasonable exercise
of diligence be known) to Company (other than matters of a general economic nature) that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect and that have not been disclosed herein or in such other documents, certificates and
statements furnished to Lenders for use in connection with the transactions contemplated hereby.



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



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SECTION 5. AFFIRMATIVE COVENANTS




          Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, each
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 5.




     5.1 Financial Statements and Other Reports. Company will deliver to Administrative Agent and
Lenders:



          (a) Monthly Reports. As soon as available, and in any event within thirty (30) days
after the end of each month ending after the Closing Date, commencing with the month in which the
Closing Date occurs, the consolidated balance sheet of Company and its Subsidiaries as at the end
of such month and the related consolidated statements of income and cash flows of Company and its
Subsidiaries for such month and for the period from the beginning of the then current Fiscal Year
to the end of such month, setting forth in each case in comparative form the corresponding figures
for the corresponding periods of the previous Fiscal Year and the corresponding figures from the
Financial Plan for the current Fiscal Year, to the extent prepared on a monthly basis, all in
reasonable detail, together with a Financial Officer Certification and a Narrative Report with
respect thereto;




          (b) Quarterly Financial Statements. As soon as available, and in any event within
forty-five (45) days after the end of each Fiscal Quarter of each Fiscal Year, commencing with the
Fiscal Quarter in which the Closing Date occurs, the consolidated balance sheets of Company and its
Subsidiaries as at the end of such Fiscal Quarter and the related consolidated statements of
income, and cash flows of Company and its Subsidiaries for such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth
in each case in comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the Financial Plan for the current Fiscal
Year, all in reasonable detail, together with a Financial Officer Certification and a Narrative
Report with respect thereto;




          (c) Annual Financial Statements. As soon as available, and in any event within ninety
(90) days after the end of each Fiscal Year, commencing with the 2005 Fiscal Year, (i) the
consolidated and consolidating balance sheets of Company and its Subsidiaries as at the end of such
Fiscal Year and the related consolidated (and with respect to statements of income, consolidating)
statements of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the corresponding figures for the
previous Fiscal Year and the corresponding figures from the Financial Plan for the Fiscal Year
covered by such financial statements, in reasonable detail, together with a Financial Officer
Certification and a Narrative Report with respect thereto; and (ii) with respect to such
consolidated financial statements a report thereon of Deloitte & Touche LLP or other independent
certified public accountants of recognized national standing selected by Company, and reasonably
satisfactory to Administrative Agent (which report shall be unqualified as to going concern and
scope of audit, and shall state that such consolidated financial statements fairly present, in all
material respects, the consolidated financial position of Company and its Subsidiaries as at the
dates indicated and the results of their operations and




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their cash flows for the periods indicated in conformity with GAAP applied on a basis
consistent with prior years (except as otherwise disclosed in such financial statements) and that
the examination by such accountants in connection with such consolidated financial statements has
been made in accordance with generally accepted auditing standards) together with a written
statement by such independent certified public accountants stating (1) that their audit examination
has included a review of the terms of the Credit Documents, and (2) whether, in connection with
their review of Section 6.8 of this Agreement, any condition or event that constitutes a Default or
an Event of Default with respect to Section 6.8 has come to their attention and, if such a
condition or event has come to their attention, specifying the nature and period of existence
thereof;




          (d) Compliance Certificate. Together with each delivery of financial statements of
Company and its Subsidiaries pursuant to Sections 5.1(b) and 5.1(c), a duly executed and completed
Compliance Certificate;




          (e) Statements of Reconciliation after Change in Accounting Principles. If, as a
result of any change in accounting principles and policies from those used in the preparation of
the Historical Financial Statements, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to Section 5.1(b) or 5.1(c) will differ in any material respect
from the consolidated financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made, then, together
with the first delivery of such financial statements after such change, one or more statements of
reconciliation for all such prior financial statements in form and substance satisfactory to
Administrative Agent;




          (f) Notice of Default. Promptly upon any officer of Company obtaining knowledge (i)
of the occurrence of a Default or an Event of Default or that notice has been given to Company with
respect thereto; (ii) that any Person has given any notice to Company or any of its Subsidiaries or
taken any other action with respect to any event or condition set forth in Section 8.1(b); or (iii)
of the occurrence of any event or change that has caused or evidences, either in any case or in the
aggregate, a Material Adverse Effect, a certificate of one of its Authorized Officers specifying
the nature and period of existence of such condition, event or change, or specifying the notice
given and action taken by any such Person and the nature of such claimed Event of Default, Default,
default, event or condition, and what action Company has taken, is taking and proposes to take with
respect thereto;




          (g) Notice of Litigation. Promptly upon any officer of Company obtaining knowledge of
(i) the institution of, or non-frivolous threat of, any Adverse Proceeding not previously disclosed
in writing by Company to Lenders, or (ii) any material development in any Adverse Proceeding that,
in the case of either clause (i) or (ii), if adversely determined, could be reasonably expected to
have a Material Adverse Effect, or seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions contemplated hereby, written
notice thereof together with such other information as may be reasonably available to Company to
enable Lenders and their counsel to evaluate such matters;




          (h) ERISA. (i) Promptly upon becoming aware of the occurrence of or forthcoming
occurrence of any ERISA Event, a written notice specifying the nature thereof, what




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action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has taken,
is taking or proposes to take with respect thereto and, when known, any action taken or threatened
by the Internal Revenue Service, the Department of Labor or the PBGC with respect thereto; and (ii)
with reasonable promptness, copies of (1) each Schedule B (Actuarial Information) to the annual
report (Form 5500 Series) filed by Company, any of its Subsidiaries or any of their respective
ERISA Affiliates with the Internal Revenue Service with respect to each Pension Plan; (2) all
notices received by Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event; and (3) copies of such other documents
or governmental reports or filings relating to any Employee Benefit Plan as Administrative Agent
shall reasonably request;




          (i) Financial Plan. As soon as practicable and in any event no later than thirty (30)
days after the end of each Fiscal Year, a consolidated plan and financial forecast for the current
Fiscal Year (a “Financial Plan”), including (i) a forecasted consolidated balance sheet and
forecasted consolidated statements of income and cash flows of Company and its Subsidiaries for
such Fiscal Year, together with a pro forma Compliance Certificate for such Fiscal Year and an
explanation of the assumptions on which such forecasts are based, (ii) forecasted consolidated
statements of income and cash flows of Company and its Subsidiaries for each month of such Fiscal
Year, (iii) forecasts demonstrating projected compliance with the requirements of Section 6.8 for
such Fiscal Year and (iv) forecasts demonstrating adequate liquidity for such Fiscal Year without
giving effect to any additional debt or equity offerings not reflected in the Projections,
together, in each case, with an explanation of the assumptions on which such forecasts are based
all in form and substance reasonably satisfactory to Agents. To the extent the Financial Plan for
any Fiscal Year is materially different from the Current Projections for such Fiscal Year, Company
will deliver to Administrative Agent and Lenders updated Current Projections. “Current
Projections” means (a) initially, the Projections and (b) subsequent to any updates pursuant to
this Section 5.1(i), such updated Current Projections for the period from the current Fiscal Year
through and including Fiscal Year 2011.




          (j) Insurance Report. As soon as practicable and in any event by the last day of each
Fiscal Year, a certificate from Company’s insurance broker(s) in form and substance satisfactory to
Administrative Agent outlining all material insurance coverage maintained as of the date of such
certificate by Company and its Subsidiaries and all material insurance coverage planned to be
maintained by Company and its Subsidiaries in the immediately succeeding Fiscal Year;




          (k) Notice of Change in Board of Directors. With reasonable promptness, written
notice of any change in the board of directors (or similar governing body) of Company;




          (l) Notice Regarding Material Contracts. Promptly, and in any event within ten
Business Days (i) after any Material Contract of any Credit Party is terminated or amended in a
manner that is materially adverse to Company or such Subsidiary, as the case may be, or (ii) any
new Material Contract is entered into, a written statement describing such event, with copies of
such material amendments or new contracts, delivered to Administrative Agent (to the extent such
delivery is permitted by the terms of any such Material Contract, provided, no such prohibition on
delivery shall be effective if it were bargained for by Company or its applicable




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Subsidiary with the intent of avoiding compliance with this Section 5.1(l)), and an
explanation of any actions being taken with respect to clause (i);




          (m) [Reserved].




          (n) Information Regarding Collateral. (a) Company will furnish to Collateral Agent
prompt written notice of any change (i) in any Credit Party’s corporate name, (ii) in any Credit
Party’s identity or corporate structure, (iii) in any Credit Party’s jurisdiction of organization
or (iv) in any Credit Party’s Federal Taxpayer Identification Number or state organizational
identification number. Company agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform Commercial Code or otherwise
that are required in order for Collateral Agent to continue at all times following such change to
have a valid, legal and perfected security interest in all the Collateral as contemplated in the
Collateral Documents. Company also agrees promptly to notify Collateral Agent if any material
portion of the Collateral is damaged or destroyed;




          (o) Annual Collateral Verification. Each year, at the time of delivery of annual
financial statements with respect to the preceding Fiscal Year pursuant to Section 5.1(c), Company
shall deliver to Collateral Agent a certificate of its Authorized Officer (i) either confirming
that there has been no change in such information since the date of the Collateral Questionnaire
delivered on the Closing Date or the date of the most recent certificate delivered pursuant to this
Section and/or identifying such changes and (ii) certifying that all Uniform Commercial Code
financing statements (including fixtures filings, as applicable) or other appropriate filings,
recordings or registrations, have been filed of record in each governmental, municipal or other
appropriate office in each jurisdiction identified pursuant to clause (i) above to the extent
necessary to protect and perfect the security interests under the Collateral Documents for a period
of not less than 18 months after the date of such certificate (except as noted therein with respect
to any continuation statements to be filed within such period); and




          (p) Other Information. (A) Promptly upon their becoming available, copies of (i) all
financial statements, reports, notices and proxy statements sent or made available generally by
Company to its security holders acting in such capacity or by any Subsidiary of Company to its
security holders other than Company or another Subsidiary of Company, (ii) all regular and periodic
reports and all registration statements and prospectuses, if any, filed by any Credit Party with
any securities exchange or with the Securities and Exchange Commission or any governmental or
private regulatory authority, (iii) all press releases and other statements made available
generally by any Credit Party to the public concerning material developments in the business of any
Credit Party, and (B) such other information and data with respect to any Credit Party as from time
to time may be reasonably requested by Administrative Agent or any Lender.




     5.2 Existence. Except as otherwise permitted under Section 6.9, each Credit Party will, and
will cause each of its Subsidiaries to, at all times preserve and keep in full force and effect its
(i) existence and (ii) all rights and franchises, licenses and permits material to its business;
provided, no Credit Party (other than Company with respect to existence) or any of its
Subsidiaries shall be required to preserve any such existence, right or franchise, licenses and
permits if such Person’s board of directors (or similar governing body) shall determine that the



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preservation thereof is no longer desirable in the conduct of the business of such Person, and
that the loss thereof is not disadvantageous in any material respect to such Person or to Lenders.




     5.3 Payment of Taxes and Claims. Each Credit Party will, and will cause each of its
Subsidiaries to, pay all Taxes imposed upon it or any of its properties or assets or in respect of
any of its income, businesses or franchises before any penalty or fine accrues thereon, and all
claims (including claims for labor, services, materials and supplies) for sums that have become due
and payable and that by law have or may become a Lien upon any of its properties or assets, prior
to the time when any penalty or fine shall be incurred with respect thereto; provided, no
such Tax or claim need be paid if it is being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted, so long as (a) adequate reserve or other appropriate
provision, as shall be required in conformity with GAAP shall have been made therefor, and (b) in
the case of a Tax or claim which has or may become a Lien against any of the Collateral, such
contest proceedings conclusively operate to stay the sale of any portion of the Collateral to
satisfy such Tax or claim. No Credit Party will, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any Person (other than
Telvent, Company or any of its Subsidiaries).



     5.4 Maintenance of Properties. Each Credit Party will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working order and condition,
ordinary wear and tear excepted, all material properties used or useful in the business of Company
and its Subsidiaries and from time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof.



     5.5 Insurance. Company will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, third party property damage insurance,
business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by Persons of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for such Persons. Without limiting the generality of the
foregoing, Company will maintain or cause to be maintained (a) flood insurance with respect to each
Flood Hazard Property that is located in a community that participates in the National Flood
Insurance Program, in each case in compliance with any applicable regulations of the Board of
Governors of the Federal Reserve System, and (b) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in such amounts, with
such deductibles, and covering such risks as are at all times carried or maintained under similar
circumstances by Persons of established reputation engaged in similar businesses. Each such policy
of insurance shall (i) name Collateral Agent, on behalf of Secured Parties as an additional insured
thereunder as its interests may appear and (ii) in the case of each casualty insurance policy,
contain a loss payable clause or endorsement, satisfactory in form and substance to Collateral
Agent, that names Collateral Agent, on behalf of Lenders as the loss payee thereunder and provides
for at least thirty days’ prior written notice to Collateral Agent of any modification or
cancellation of such policy.



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     5.6 Books and Records; Inspections. Each Credit Party will, and will cause each of its
Subsidiaries to, keep proper books of record and accounts in which full, true and correct entries
in conformity in all material respects with GAAP shall be made of all dealings and transactions in
relation to its business and activities. Each Credit Party will, and will cause each of its
Subsidiaries to, permit any authorized representatives designated by Administrative Agent or any
Lender to visit and inspect any of the properties of any Credit Party and any of its respective
Subsidiaries, to inspect, copy and take extracts from its and their financial and accounting
records, and to discuss its and their affairs, finances and accounts with its and their officers
and independent public accountants, all upon reasonable notice and at such reasonable times during
normal business hours and as often as may reasonably be requested. So long as no Default or Event
of Default shall have occurred or be continuing, the Credit Parties shall only pay the fees and
expenses for two such inspections per Fiscal Year.



     5.7 Lenders Meetings. Company will, upon the request of (i) Administrative Agent or (ii)
Requisite Lenders, participate in a meeting of Administrative Agent and Lenders once during each
Fiscal Year to be held at Company’s corporate offices (or at such other location as may be agreed
to by Company and Administrative Agent) at such time as may be agreed to by Company and
Administrative Agent.



     5.8 Compliance with Laws. Each Credit Party will comply, and shall cause each of its
Subsidiaries and all other Persons, if any, on or occupying any Facilities to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Governmental Authority
(including all Environmental Laws), noncompliance with which could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.



     5.9 Environmental.



          (a) Environmental Disclosure. Company will deliver to Administrative Agent and
Lenders:





          (i) as soon as practicable following receipt thereof, and to the extent permitted by
the terms thereof, copies of all environmental audits, investigations, analyses and reports
of any kind or character, whether prepared by personnel of Company or any of its
Subsidiaries or by independent consultants, governmental authorities or any other Persons,
with respect to significant environmental matters at any Facility or with respect to any
Environmental Claims;




          (ii) promptly following the occurrence thereof, written notice describing in reasonable
detail (1) any Release required to be reported to any federal, state or local governmental
or regulatory agency under any applicable Environmental Laws, (2) any remedial action taken
by Company or any other Person in response to (A) any Hazardous Materials Activities the
existence of which has a reasonable possibility of resulting in one or more Environmental
Claims having, individually or in the aggregate, a Material Adverse Effect, or (B) any
Environmental Claims that, individually or in the aggregate, have a reasonable possibility
of resulting in a Material Adverse Effect, and (3) Company’s discovery of any occurrence or
condition on any real property adjoining or in the vicinity of any Facility that could cause
such Facility or any



72









 







part thereof to be subject to any material restrictions on the ownership, occupancy, transferability or use
thereof under any Environmental Laws;




          (iii) as soon as practicable following the sending or receipt thereof by any Credit
Party, a copy of any and all written communications with respect to (1) any Environmental
Claims that, individually or in the aggregate, have a reasonable possibility of giving rise
to a Material Adverse Effect, (2) any Release required to be reported to any federal, state
or local governmental or regulatory agency, and (3) any request for information from any
governmental agency that suggests such agency is investigating any Credit Party may be
potentially responsible for any Hazardous Materials Activity that would impose liability on
any Credit Party in an amount in excess of $2,000,000;




          (iv) prompt written notice describing in reasonable detail (1) any proposed acquisition
of stock, assets, or property by any Credit Party that could reasonably be expected to (A)
expose any Credit Party to, or result in, Environmental Claims that could reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect or (B) affect
the ability of any Credit Party to maintain in full force and effect all material
Governmental Authorizations required under any Environmental Laws for their respective
operations to the extent failure to have such Governmental Authorizations could reasonably
be expected to have a Material Adverse Effect and (2) any proposed action to be taken by any
Credit Party to modify current operations in a manner that could reasonably be expected to
subject any Credit Party to any additional material obligations or requirements under any
Environmental Laws; and




          (v) with reasonable promptness, such other documents and information as from time to
time may be reasonably requested by Administrative Agent in relation to any matters
disclosed pursuant to this Section 5.9(a).



          (b) Hazardous Materials Activities, Etc. Each Credit Party shall promptly take, and
shall cause each of its Subsidiaries promptly to take, any and all actions necessary to (i) cure
any violation of applicable Environmental Laws by such Credit Party or its Subsidiaries that could
reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and
(ii) make an appropriate response to any Environmental Claim against such Credit Party or any of
its Subsidiaries and discharge any obligations it may have to any Person thereunder where failure
to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.




     5.10 Subsidiaries and Additional Credit Parties. In the event that any Person becomes a
Domestic Subsidiary of Company or becomes a Credit Party hereunder, Company shall (a) promptly
cause such Person to become a Guarantor hereunder and a Grantor under the Pledge and Security
Agreement by executing and delivering to Administrative Agent and Collateral Agent a Counterpart
Agreement and (b) take all such actions and execute and deliver, or cause to be executed and
delivered, all such documents, instruments, agreements, and certificates as are similar to those
described in Sections 3.1(b), 3.1(i), 3.1(j) and 3.1(n) of the Initial Credit Agreement. In the
event that any Person becomes a Foreign Subsidiary of Company, and the ownership interests of such
Foreign Subsidiary are owned by Company or by any Domestic Subsidiary thereof, Company shall, or
shall cause such Domestic Subsidiary to,



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deliver, all such documents, instruments, agreements, and certificates as are similar to those
described in Sections 3.1(b) of the Initial Credit Agreement, and Company shall take, or shall
cause such Domestic Subsidiary to take, all of the actions referred to in Section 3.1(j)(i) of the
Initial Credit Agreement necessary to grant and to perfect a First Priority Lien in favor of
Collateral Agent, for the benefit of Secured Parties, under the Pledge and Security Agreement in
65% of such ownership interests. With respect to each such Subsidiary, Company shall promptly send
to Administrative Agent written notice setting forth with respect to such Person (i) the date on
which such Person became a Subsidiary of Company or on which such Person will become a Credit
Party, and (ii) all of the data required to be set forth in Schedules 4.1 and 4.2 with respect to
all Credit Parties; provided, such written notice shall be deemed to supplement Schedule
4.1 and 4.2 for all purposes hereof.




     5.11 Additional Material Real Estate Assets. In the event that any Credit Party acquires a
Material Real Estate Asset or a Real Estate Asset owned or leased on the Closing Date becomes a
Material Real Estate Asset and such interest has not otherwise been made subject to the Lien of the
Collateral Documents in favor of Collateral Agent, for the benefit of Secured Parties, then such
Credit Party, shall promptly take all reasonable actions and execute and deliver, or cause to be
executed and delivered, all such mortgages, documents, instruments, agreements, opinions and
certificates similar to those described in Sections 3.1(i) and 3.1(j) of the Initial Credit
Agreement with respect to each such Material Real Estate Asset that Collateral Agent shall
reasonably request to create in favor of Collateral Agent, for the benefit of Secured Parties, a
valid and, subject to any filing and/or recording referred to herein, perfected First Priority
security interest in such Material Real Estate Assets. In addition to the foregoing, Company
shall, at the reasonable request of Collateral Agent, deliver, from time to time, to Collateral
Agent such appraisals as are required by law or regulation of Real Estate Assets with respect to
which Collateral Agent has been granted a Lien.



     5.12 Interest Rate Protection. No later than 90 days following the Closing Date and at all
times thereafter, Company shall obtain and cause to be maintained protection against the
fluctuations in interest rates pursuant to one or more Interest Rate Agreements for a term of not
less than three (3) years and otherwise in form and substance reasonably satisfactory to
Administrative Agent in order to ensure that no less than 50% of the aggregate principal amount of
the total Indebtedness of Company and its Subsidiaries outstanding on the Closing Date is either
(i) subject to such Interest Rate Agreements or (ii) Indebtedness that bears interest at a fixed
rate.



     5.13 Further Assurances. At any time or from time to time upon the reasonable request of
Administrative Agent, each Credit Party will, at its expense, promptly execute, acknowledge and
deliver such further documents and do such other acts and things as Administrative Agent or
Collateral Agent may reasonably request in order to effect fully the purposes of the Credit
Documents. In furtherance and not in limitation of the foregoing, each Credit Party shall take
such actions as Administrative Agent or Collateral Agent may reasonably request from time to time
to ensure that the Obligations are guarantied by the Guarantors, if any, and are secured by
substantially all of the assets of Company and its Subsidiaries and all of the outstanding Capital
Stock of Company’s Subsidiaries (subject to limitations contained in the Credit Documents with
respect to Foreign Subsidiaries).



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     5.14 Non-Consolidation. Unless otherwise consented to by Agents or Requisite Lenders, Company
will and will cause each of its Subsidiaries to maintain entity records and books of account
separate from those of any other entity which is an Affiliate of such entity.



SECTION 6. NEGATIVE COVENANTS




          Each Credit Party covenants and agrees that, so long as any Commitment is in effect and until
payment in full of all Obligations and cancellation or expiration of all Letters of Credit, such
Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in
this Section 6.




     6.1 Indebtedness. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become or remain directly
or indirectly liable with respect to any Indebtedness, except:



          (a) the Obligations;




          (b) Indebtedness of any Credit Party to any other Credit Party not to exceed the amount of
such Indebtedness in existence on the Closing Date plus an additional aggregate amount of
$6,500,000 per Fiscal Year; provided, (i) all such Indebtedness shall be evidenced by
promissory notes and all such notes shall be subject to a First Priority Lien pursuant to the
Pledge and Security Agreement, (ii) all such Indebtedness shall be subordinated in right of payment
to the payment in full of the Obligations pursuant to the terms of the applicable promissory notes
or an intercompany subordination agreement that in any such case, is reasonably satisfactory to
Administrative Agent, and (iii) any payment by any such Credit Party under any guaranty of the
Obligations shall result in a pro tanto reduction of the amount of any Indebtedness owed by such
Credit Party to any other Credit Party for whose benefit such payment is made;




          (c) Indebtedness incurred by any Credit Party or any of its Subsidiaries arising from
agreements providing for indemnification, adjustment of purchase price or similar obligations, or
from guaranties or letters of credit, surety bonds or performance bonds securing the performance of
Company or any such Subsidiary pursuant to such agreements, in connection with Permitted
Acquisitions or dispositions permitted in Section 6.9 of any business, assets or Subsidiary of
Company or any of its Subsidiaries;




          (d) Indebtedness which may be deemed to exist pursuant to any guaranties, performance, surety,
statutory, appeal or similar obligations incurred in the ordinary course of business;




          (e) Indebtedness in respect of netting services, overdraft protections and otherwise in
connection with deposit accounts;




          (f) guaranties in the ordinary course of business of the obligations of suppliers, customers,
franchisees and licensees of Company and its Subsidiaries;





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          (g) guaranties by any Credit Party of Indebtedness of any Credit Party with respect, in each
case, to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.1;
provided, that if the Indebtedness that is being guarantied is unsecured and/or
subordinated to the Obligations, the guaranty shall also be unsecured and/or subordinated to the
Obligations;




          (h) Indebtedness described in Schedule 6.1, but not any extensions, renewals or replacements
of such Indebtedness except (i) renewals and extensions expressly provided for in the agreements
evidencing any such Indebtedness as the same are in effect on the date of this Agreement and (ii)
refinancings and extensions of any such Indebtedness if the terms and conditions thereof are not
less favorable to the obligor thereon or to the Lenders than the Indebtedness being refinanced or
extended, and the average life to maturity thereof is greater than or equal to that of the
Indebtedness being refinanced or extended; provided, such Indebtedness permitted under the
immediately preceding clause (i) or (ii) above shall not (A) include Indebtedness of an obligor
that was not an obligor with respect to the Indebtedness being extended, renewed or refinanced, (B)
exceed in a principal amount the Indebtedness being renewed, extended or refinanced or (C) be
incurred, created or assumed if any Default or Event of Default has occurred and is continuing or
would result therefrom;




          (i) Indebtedness with respect to Capital Leases in an aggregate amount not to exceed at any
time $5,000,000;




          (j) purchase money Indebtedness in an aggregate amount not to exceed at any time $5,000,000;
provided, any such Indebtedness (i) shall be secured only by the asset acquired in
connection with the incurrence of such Indebtedness, and (ii) shall constitute not less than 80%
and not more than 100% of the aggregate consideration paid with respect to such asset;




          (k) other unsecured Indebtedness of Company and its Subsidiaries, which is unsecured and
subordinated to the Obligations in a manner satisfactory to Administrative Agent in an aggregate
amount not to exceed at any time $2,000,000; and




          (l) other unsecured Indebtedness of Company and its Subsidiaries, which is subordinated to the
Obligations in a manner satisfactory to Administrative Agent in an aggregate amount not to exceed
at any time $25,000,000; provided that no Default or Event of Default shall have occurred
and be continuing or would result therefrom and the pro forma Senior Leverage Ratio after giving
effect to the incurrence of such Indebtedness is less than 3.00:1.00.




          Indebtedness permitted pursuant to one of the above subsections shall not be included in
determining the limitation contained in any other subsection of this Section 6.1.




     6.2 Liens. No Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, create, incur, assume or permit to exist any Lien on or with respect to any property or
asset of any kind (including any document or instrument in respect of goods or accounts receivable)
of Company or any of its Subsidiaries, whether now owned or hereafter acquired, or any income or
profits therefrom, or file or permit the filing of, or permit to remain in effect, any financing
statement or other similar notice of any Lien with respect to any such property, asset, income or
profits under the UCC of any State or under any similar recording or notice statute, except:



76









 





          (a) Liens in favor of Collateral Agent for the benefit of Secured Parties granted pursuant to
any Credit Document;




          (b) Liens for Taxes if obligations with respect to such Taxes are being contested in good
faith by appropriate proceedings promptly instituted and diligently conducted;




          (c) statutory Liens of landlords, banks (and rights of set-off), of carriers, warehousemen,
mechanics, repairmen, workmen and materialmen, and other Liens imposed by law (other than any such
Lien imposed pursuant to Section 401 (a)(29) or 412(n) of the Internal Revenue Code or by ERISA),
in each case incurred in the ordinary course of business (i) for amounts not yet overdue or (ii)
for amounts that are overdue and that (in the case of any such amounts overdue for a period in
excess of five days) are being contested in good faith by appropriate proceedings, so long as such
reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made
for any such contested amounts;




          (d) Liens incurred in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government
contracts, trade contracts, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money or other Indebtedness), so long as no
foreclosure, sale or similar proceedings have been commenced with respect to any portion of the
Collateral on account thereof that have not been dismissed within 30 days;




          (e) easements, rights-of-way, restrictions, encroachments, and other minor defects or
irregularities in title, in each case which do not and will not interfere in any material respect
with the ordinary conduct of the business of Company or any of its Subsidiaries;




          (f) any interest or title of a lessor or sublessor under any lease of real estate permitted
hereunder;




          (g) Liens solely on any cash earnest money deposits made by Company or any of its Subsidiaries
in connection with any letter of intent or purchase agreement permitted hereunder;




          (h) purported Liens evidenced by the filing of precautionary UCC financing statements relating
solely to operating leases (under GAAP) of personal property entered into in the ordinary course of
business;




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




          (j) any zoning or similar law or right reserved to or vested in any governmental office or
agency to control or regulate the use of any real property;




          (k) licenses of patents, trademarks and other intellectual property rights granted by Company
or any of its Subsidiaries in the ordinary course of business and not interfering in any respect
with the ordinary conduct of the business of Company or such Subsidiary;




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          (l) Liens described in Schedule 6.2 or on a title report delivered pursuant to Section
3.1(i)(iv) of the Initial Credit Agreement;




          (m) [reserved];




          (n) Liens securing Indebtedness permitted pursuant to Sections 6.1(b), 6.1(c), 6.1(j) and
6.1(k); provided, with respect to 6.1(c), 6.1(j) and 6.1(k) any such Lien shall encumber
only the asset acquired with the proceeds of such Indebtedness; and




          (o) other Liens on assets other than the Collateral securing Indebtedness in an aggregate
amount not to exceed $1,000,000 at any time outstanding.




     6.3 Equitable Lien. If any Credit Party shall create or assume any Lien upon any of its
properties or assets, whether now owned or hereafter acquired, other than Permitted Liens, it shall
make or cause to be made effective provisions whereby the Obligations will be secured by such Lien
equally and ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided, notwithstanding the foregoing, this covenant
shall not be construed as a consent by Requisite Lenders to the creation or assumption of any such
Lien not otherwise permitted hereby.



     6.4 No Further Negative Pledges. Except with respect to (a) specific property encumbered to
secure payment of particular Indebtedness or to be sold pursuant to an executed agreement with
respect to a permitted Asset Sale, and (b) restrictions by reason of customary provisions
restricting assignments, subletting or other transfers contained in leases, licenses and similar
agreements entered into in the ordinary course of business (provided that such restrictions are
limited to the property or assets secured by such Liens or the property or assets subject to such
leases, licenses or similar agreements, as the case may be), no Credit Party nor any of its
Subsidiaries shall enter into any agreement prohibiting the creation or assumption of any Lien upon
any of its properties or assets, whether now owned or hereafter acquired, to secure the
Obligations.



     6.5 Restricted Junior Payments. No Credit Party shall, nor shall it permit any of its
Subsidiaries through any manner or means or through any other Person to, directly or indirectly,
declare, order, pay, make or set apart, or agree to declare, order, pay, make or set apart, any sum
for any Restricted Junior Payment except, (a) any Restricted Junior Payment by Company or any
Guarantor to Company or any Guarantor and (b) so long as no Default or Event of Default shall have
occurred and be continuing or shall be caused thereby, any Restricted Junior Payment by any Credit
Party or any Subsidiary of any Credit Party to Telvent or its Affiliates in an aggregate amount not
to exceed $3,000,000 in any Fiscal Year, to the extent necessary to permit Company and/or Telvent
to pay general administrative costs and expenses directly related to the operations of the Company,
so long as Company and/or Telvent applies the amount of any such Restricted Junior Payment for such
purpose.



     6.6 Restrictions on Subsidiary Distributions. Except as provided herein, no Credit Party
shall, nor shall it permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the ability of any
Subsidiary of Company to (a) pay dividends or make any other distributions on any of such



78









 




Subsidiary’s Capital Stock owned by Company or any other Subsidiary of Company, (b) repay or
prepay any Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (c)
make loans or advances to Company or any other Subsidiary of Company, or (d) transfer any of its
property or assets to Company or any other Subsidiary of Company other than restrictions (i) in
agreements evidencing Indebtedness permitted by Sections 6.1(c), 6.1(j) and 6.1(k) that impose
restrictions on the property so acquired, (ii) by reason of customary provisions restricting
assignments, subletting or other transfers contained in leases, licenses, joint venture agreements
and similar agreements entered into in the ordinary course of business, (iii) that are or were
created by virtue of any transfer of, agreement to transfer or option or right with respect to any
property, assets or Capital Stock not otherwise prohibited under this Agreement, or (iv) described
on Schedule 6.6.




     6.7 Investments. No Credit Party shall, nor shall it permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including without limitation any
Joint Venture, except:




     (a) Investments in Cash and Cash Equivalents;




     (b) equity Investments owned as of the Closing Date in any Subsidiary and Investments
made after the Closing Date in any Credit Party, now existing or hereinafter acquired or
formed;




     (c) Investments (i) in any Securities received in satisfaction or partial satisfaction
thereof from financially troubled account debtors and (ii) deposits, prepayments and other
credits to suppliers made in the ordinary course of business consistent with the past
practices of Company and its Subsidiaries;




     (d) intercompany loans to the extent permitted under Section 6.1(b) or 6.1(l);




     (e) Consolidated Capital Expenditures with respect to Company and the Guarantors
permitted by Section 6.8(d);




     (f) loans and advances to employees of Company and its Subsidiaries made in the
ordinary course of business in an aggregate principal amount not to exceed $2,000,000 in the
aggregate;




     (g) Investments made in connection with Permitted Acquisitions permitted pursuant to
Section 6.9;




     (h) Investments described in Schedule 6.7; and




     (i) other Investments in an aggregate amount not to exceed at any time $3,000,000.



          Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which
results in or facilitates in any manner any Restricted Junior Payment not otherwise permitted under
the terms of Section 6.5.




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          Investments permitted pursuant to one of the above subsections shall not be included in
determining the limitation contained in any other subsection of this Section 6.7.




     6.8 Financial Covenants.



          (a) Interest Coverage Ratio. Company shall not permit the Interest Coverage Ratio as
of the last day of any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2009,
to be less than the correlative ratio indicated below:




	 	 	 	 	 
	 	 	Interest
	Fiscal Quarter	 	Coverage Ratio
	September 30, 2009 through December 31, 2009
	 	 	2.25:1.00	 
	 
	 	 	 	 
	March 31, 2010 through December 31, 2010
	 	 	2.50:1.00	 
	 
	 	 	 	 
	March 31, 2011 and thereafter
	 	 	3.00:1.00	 






          (b) [Reserved].




          (c) Leverage Ratio. Company shall not permit the Leverage Ratio as of the last day of
any Fiscal Quarter, beginning with the Fiscal Quarter ending December 31, 2009, to exceed the
correlative ratio indicated below:




	 	 	 	 	 
	 	 	Leverage
	Fiscal Quarter	 	Ratio
	September 30, 2009 through December 31, 2009
	 	 	4.25:1.00	 
	 
	 	 	 	 
	March 31, 2010 through, June 30, 2010
	 	 	3.75:1.00	 
	 
	 	 	 	 
	September 30, 2010 through, December 31, 2010
	 	 	3.50:1.00	 
	 
	 	 	 	 
	March 31, 2011 and thereafter
	 	 	3.25:1.00	 






          (d) Maximum Consolidated Capital Expenditures. Company shall not, and shall not
permit its Subsidiaries to, make or incur Consolidated Capital Expenditures, in any




80









 







Fiscal Year indicated below, in an aggregate amount for Company and its Subsidiaries in excess
of the corresponding amount set forth below opposite such Fiscal Year (the “Maximum Consolidated
Capital Expenditures); provided, the Maximum Consolidated Capital Expenditures for any
Fiscal Year shall be increased by an amount equal to the excess, if any, of the Maximum
Consolidated Capital Expenditures for the previous Fiscal Year (including any Fiscal Year prior to
the Second Restatement Effective Date but without giving any effect to any adjustment in accordance
with this proviso) over the actual amount of Consolidated Capital Expenditures for such previous
Fiscal Year, but in no event more than 50% of the Maximum Consolidated Capital Expenditures for the
previous Fiscal Year:




	 	 	 	 	 
	 	 	Consolidated
	Fiscal Year	 	Capital Expenditures
	2008
	 	$	15,000,000	 
	 
	 	 	 	 
	2009 and thereafter
	 	$	15,000,000	 






          (e) Certain Calculations. With respect to any period during which a Permitted
Acquisition or an Asset Sale has occurred (each, a “Subject Transaction”), for purposes of
determining compliance with the financial covenants set forth in this Section 6.8 (but not for
purposes of determining the Applicable Margin), Consolidated Adjusted EBITDA shall be calculated
with respect to such period on a pro forma basis (including pro forma adjustments arising out of
events which are directly attributable to a specific transaction, are factually supportable and are
expected to have a continuing impact, in each case determined on a basis consistent with GAAP,
which would include cost savings resulting from head count reduction, closure of facilities and
similar restructuring charges, which pro forma adjustments shall be certified by the chief
financial officer of Company) using the historical audited financial statements of any business so
acquired or to be acquired or sold or to be sold (or if no historical audited financial statements
are available, such other historical financial statements that have been prepared in accordance
with GAAP) and the consolidated financial statements of Company and its Subsidiaries which shall be
reformulated as if such Subject Transaction, and any Indebtedness incurred or repaid in connection
therewith, had been consummated or incurred or repaid at the beginning of such period (and assuming
that such Indebtedness bears interest during any portion of the applicable measurement period prior
to the relevant acquisition at the weighted average of the interest rates applicable to outstanding
Loans incurred during such period).




     6.9 Fundamental Changes; Disposition of Assets; Acquisitions. No Credit Party shall, nor
shall it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation,
or liquidate, wind-up or dissolve itself (or suffer any liquidation or dissolution), or convey,
sell, lease or sub-lease (as lessor or sublessor), exchange, transfer or otherwise dispose of, in
one transaction or a series of transactions, all or any part of its business, assets or property of
any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, whether
now owned or hereafter acquired, or acquire by purchase or otherwise (other than purchases or other
acquisitions of inventory, materials and equipment and Consolidated Capital



81









 




Expenditures in the ordinary course of business) the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person or any division or line of business
or other business unit of any Person, except:




          (a) any Credit Party or any Subsidiary of any Credit Party may be merged with or into any
other Credit Party or any Person that becomes a Credit Party in connection therewith, or be
liquidated, wound up or dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to any Credit Party or any Person that becomes a Credit Party in connection
therewith; provided, in the case of such a merger, any Credit Party or any Person that
becomes a Credit Party in connection therewith shall be the continuing or surviving Person or, in
the case of the Company, Company shall be the continuing or surviving Person;




          (b) sales or other dispositions of assets that do not constitute Asset Sales;




          (c) Asset Sales, the proceeds of which (valued at the principal amount thereof in the case of
non-Cash proceeds consisting of notes or other debt Securities and valued at fair market value in
the case of other non-Cash proceeds) (i) are less than $1,000,000 with respect to any single Asset
Sale or series of related Asset Sales and (ii) when aggregated with the proceeds of all other Asset
Sales made within the same Fiscal Year, are less than $2,000,000; provided, notwithstanding
clauses (i) and (ii) above, so long as no Default or Event of Default exists or would occur as a
result of such Asset Sale, Company may request and Administrative Agent may consent (in its sole
discretion), no more than four times during the term of this Agreement, to Asset Sales which are in
excess of the amounts in clauses (i) and (ii) above but less than $5,000,000; provided,
further, (1) the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof (determined in good faith by the board of directors of such
Credit Party (or similar governing body)), (2) no less than 80% thereof shall be paid in Cash, and
(3) the Net Asset Sale Proceeds thereof shall be applied as required by Section 2.14(a);




          (d) disposals of obsolete, worn out or surplus property;




          (e) subject to pro forma compliance with a Leverage Ratio which is .25x more restrictive than
the then-applicable Leverage Ratio under Section 6.8(c) at such date of determination, Permitted
Acquisitions the consideration for which constitutes the sum of (i) an amount in Cash (including
(i) borrowings of Revolving Loans and New Term Loans and (ii) up to $20,000,000 of Consolidated
Excess Cash Flow) not to exceed $30,000,000 in the aggregate in any Fiscal Year; provided,
that the Company shall retain a balance of $5,000,000 of any combination of unencumbered Cash
(other than security interests pursuant to any Credit Document and Permitted Liens) and
availability under the Revolving Commitments, plus (ii) an aggregate amount not to exceed
$30,000,000 per Fiscal Year of the Capital Stock or the net cash proceeds from the issuance of
equity of Company or any of its Subsidiaries; provided, such amount with respect to this
clause (ii) for any Fiscal Year shall be increased by an amount equal to the excess of such amount
for the previous Fiscal Year (including any Fiscal Year prior to the Second Restatement Effective
Date but without giving any effect to any carryover into such previous Fiscal Year pursuant to this
clause (ii)) over the actual amount of Permitted Acquisitions using the Capital Stock or the net
cash proceeds from the issuance of equity of



82









 






Company or any of its Subsidiaries for such previous Fiscal Year, plus (iii) an amount
equal to the excess Maximum Consolidated Capital Expenditures for the previous Fiscal Year
(including any Fiscal Year prior to the Second Restatement Effective Date, including any carryover
amount permitted pursuant to Section 6.8(d), over the Consolidated Capital Expenditures for such
Fiscal Year;




          (f) leases or sub-leases in the ordinary course of business of any Credit Party or any
Subsidiary of any Credit Party;




          (g) Investments made in accordance with Section 6.7; and




          (h) Sale and lease-back transactions permitted pursuant to Section 6.11.




          Transactions permitted pursuant to one of the above subsections shall not be included in
determining the limitation contained in any other subsection of this Section 6.9.




     6.10 Disposal of Subsidiary Interests. Except for (i) any sale of all of its interests in the
Capital Stock of any of its Subsidiaries in compliance with the provisions of Section 6.9, and (ii)
Liens provided under any of the Credit Documents, no Credit Party shall, nor shall it permit any of
its Subsidiaries to, (a) directly or indirectly sell, assign, pledge or otherwise encumber or
dispose of any Capital Stock of any of its Subsidiaries, except to qualify directors if required by
applicable law or to another Credit Party; or (b) permit any of its Subsidiaries directly or
indirectly to sell, assign, pledge or otherwise encumber or dispose of any Capital Stock of any of
its Subsidiaries, except to another Credit Party (subject to the restrictions on such disposition
otherwise imposed hereunder), or to qualify directors if required by applicable law.



     6.11 Sales and Lease-Backs. No Credit Party shall, nor shall it permit any of its
Subsidiaries to, directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease of any property (whether real, personal or mixed), whether
now owned or hereafter acquired, which such Credit Party (a) has sold or transferred or is to sell
or to transfer to any other Person (other than any Credit Party or any of its Subsidiaries), or (b)
intends to use for substantially the same purpose as any other property which has been or is to be
sold or transferred by such Credit Party to any Person (other than any Credit Party or any of its
Subsidiaries) in connection with such lease.



     6.12 Transactions with Shareholders and Affiliates. Except as otherwise permitted in this
Agreement, no Credit Party shall, nor shall it permit any of its Subsidiaries to, directly or
indirectly, enter into or permit to exist any transaction (including the purchase, sale, lease or
exchange of any property or the rendering of any service) with any holder of 5% or more of any
class of Capital Stock of any Credit Party or with any Affiliate of Company, on terms that are less
favorable to Company or that Subsidiary, as the case may be, than those that might be obtained at
the time from a Person who is not such a holder or Affiliate; provided, the foregoing restriction
shall not apply to (a) any transaction between Company and any Guarantor; (b) reasonable and
customary fees paid to members of the board of directors (or similar governing body) of Company and
its Subsidiaries; (c) compensation arrangements for officers and other employees of Company and its
Subsidiaries entered into in the ordinary course of business; and (d) transactions described in
Schedule 6.12.



83









 





     6.13 Conduct of Business. From and after the Closing Date, no Credit Party shall, nor shall
it permit any of its Subsidiaries to, engage in any business other than (i) the businesses engaged
in by such Credit Party on the Closing Date and similar or related businesses and (ii) such other
lines of business as may be consented to by Requisite Lenders.



     6.14 Fiscal Year. No Credit Party shall, nor shall it permit any of its Subsidiaries to
change its Fiscal Year-end from December 31st.



SECTION 7. GUARANTY




     7.1 Guaranty of the Obligations. Subject to the provisions of Section 7.2, Guarantors jointly
and severally hereby irrevocably and unconditionally guaranty to Administrative Agent for the
ratable benefit of the Beneficiaries the due and punctual payment in full of all Obligations when
the same shall become due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise (including amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)) (collectively,
the “Guaranteed Obligations”).



     7.2 Contribution by Guarantors. All Guarantors desire to allocate among themselves
(collectively, the “Contributing Guarantors”), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or distribution is made on any
date by a Guarantor (a “Funding Guarantor”) under this Guaranty such that its Aggregate Payments
exceeds its Fair Share as of such date, such Funding Guarantor shall be entitled to a contribution
from each of the other Contributing Guarantors in an amount sufficient to cause each Contributing
Guarantor’s Aggregate Payments to equal its Fair Share as of such date. “Fair Share” means, with
respect to a Contributing Guarantor as of any date of determination, an amount equal to (a) the
ratio of (i) the Fair Share Contribution Amount with respect to such Contributing Guarantor to (ii)
the aggregate of the Fair Share Contribution Amounts with respect to all Contributing Guarantors
multiplied by (b) the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the obligations Guaranteed. “Fair Share Contribution
Amount” means, with respect to a Contributing Guarantor as of any date of determination, the
maximum aggregate amount of the obligations of such Contributing Guarantor under this Guaranty that
would not render its obligations hereunder or thereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code or any comparable
applicable provisions of state law; provided, solely for purposes of calculating the “Fair Share
Contribution Amount” with respect to any Contributing Guarantor for purposes of this Section 7.2,
any assets or liabilities of such Contributing Guarantor arising by virtue of any rights to
subrogation, reimbursement or indemnification or any rights to or obligations of contribution
hereunder shall not be considered as assets or liabilities of such Contributing Guarantor.
“Aggregate Payments” means, with respect to a Contributing Guarantor as of any date of
determination, an amount equal to (1) the aggregate amount of all payments and distributions made
on or before such date by such Contributing Guarantor in respect of this Guaranty (including,
without limitation, in respect of this Section 7.2), minus (2) the aggregate amount of all payments
received on or before such date by such Contributing Guarantor from the other Contributing
Guarantors as contributions under this Section 7.2. The amounts payable as contributions



84









 




hereunder shall be determined as of the date on which the related payment or distribution is
made by the applicable Funding Guarantor. The allocation among Contributing Guarantors of their
obligations as set forth in this Section 7.2 shall not be construed in any way to limit the
liability of any Contributing Guarantor hereunder. Each Guarantor is a third party beneficiary to
the contribution agreement set forth in this Section 7.2.




     7.3 Payment by Guarantors. Subject to Section 7.2, Guarantors hereby jointly and severally
agree, in furtherance of the foregoing and not in limitation of any other right which any
Beneficiary may have at law or in equity against any Guarantor by virtue hereof, that upon the
failure of Company to pay any of the Guaranteed Obligations when and as the same shall become due,
whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a)), Guarantors will upon demand pay, or cause to
be paid, in Cash, to Administrative Agent for the ratable benefit of Beneficiaries, an amount equal
to the sum of the unpaid principal amount of all Guaranteed Obligations then due as aforesaid,
accrued and unpaid interest on such Guaranteed Obligations (including interest which, but for
Company’s becoming the subject of a case under the Bankruptcy Code, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against Company for such interest in the
related bankruptcy case) and all other Guaranteed Obligations then owed to Beneficiaries as
aforesaid.



     7.4 Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder
are irrevocable, absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than
payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees as follows:



          (a) this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty
is a primary obligation of each Guarantor and not merely a contract of surety;




          (b) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default
notwithstanding the existence of any dispute between Company and any Beneficiary with respect to
the existence of such Event of Default;




          (c) the obligations of each Guarantor hereunder are independent of the obligations of Company
and the obligations of any other guarantor (including any other Guarantor) of the obligations of
Company, and a separate action or actions may be brought and prosecuted against such Guarantor
whether or not any action is brought against Company or any of such other guarantors and whether or
not Company is joined in any such action or actions;




          (d) payment by any Guarantor of a portion, but not all, of the Guaranteed Obligations shall in
no way limit, affect, modify or abridge any Guarantor’s liability for any portion of the Guaranteed
Obligations which has not been paid. Without limiting the generality of the foregoing, if
Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor’s covenant
to pay a portion of the Guaranteed Obligations, such judgment shall not be deemed to release such
Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent



85









 






satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability
hereunder in respect of the Guaranteed Obligations;




          (e) any Beneficiary, upon such terms as it deems appropriate, without notice or demand and
without affecting the validity or enforceability hereof or giving rise to any reduction,
limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time
to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise,
release or discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate
the payment of the same to the payment of any other obligations; (iii) request and accept other
guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or the
Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind,
waive, alter, subordinate or modify, with or without consideration, any security for payment of the
Guaranteed Obligations, any other guaranties of the Guaranteed Obligations, or any other obligation
of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v)
enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in
respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any such security, in
each case as such Beneficiary in its discretion may determine consistent herewith or the applicable
Hedge Agreement and any applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale
is commercially reasonable, and even though such action operates to impair or extinguish any right
of reimbursement or subrogation or other right or remedy of any Guarantor against Company or any
security for the Guaranteed Obligations; and (vi) exercise any other rights available to it under
the Credit Documents or any Hedge Agreements; and




          (f) this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable
and shall not be subject to any reduction, limitation, impairment, discharge or termination for any
reason (other than payment in full of the Guaranteed Obligations), including the occurrence of any
of the following, whether or not any Guarantor shall have had notice or knowledge of any of them:
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce,
or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or
enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit
Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guaranteed
Obligations or any agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or
modification of, or any consent to departure from, any of the terms or provisions (including
provisions relating to events of default) hereof, any of the other Credit Documents, any of the
Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty
or security for the Guaranteed Obligations, in each case whether or not in accordance with the
terms hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other
guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any
time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the other Credit
Documents or any of the Hedge Agreements



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or from the proceeds of any security for the Guaranteed Obligations, except to the extent such
security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the
payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might
have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any
Beneficiary’s consent to the change, reorganization or termination of the corporate structure or
existence of any Credit Party and to any corresponding restructuring of the Guaranteed Obligations;
(vi) any failure to perfect or continue perfection of a security interest in any collateral which
secures any of the Guaranteed Obligations; (vii) any defenses, set offs or counterclaims which
Company may allege or assert against any Beneficiary in respect of the Guaranteed Obligations,
including failure of consideration, breach of warranty, payment, statute of frauds, statute of
limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or
delay to do any other act or thing, which may or might in any manner or to any extent vary the risk
of any Guarantor as an obligor in respect of the Guaranteed Obligations.




     7.5 Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or performance by such
Guarantor, to (i) proceed against Company, Telvent, any other guarantor (including any other
Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any
security held from Company, Telvent, any such other guarantor or any other Person, (iii) proceed
against or have resort to any balance of any Deposit Account or credit on the books of any
Beneficiary in favor of Company or any other Person, or (iv) pursue any other remedy in the power
of any Beneficiary whatsoever; (b) any defense arising by reason of the incapacity, lack of
authority or any disability or other defense of Company or any other Guarantor including any
defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed
Obligations or any agreement or instrument relating thereto or by reason of the cessation of the
liability of Company or any other Guarantor from any cause other than payment in full of the
Guaranteed Obligations; (c) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other respects more burdensome
than that of the principal; (d) any defense based upon any Beneficiary’s errors or omissions in the
administration of the Guaranteed Obligations, except behavior which amounts to bad faith; (e) (i)
any principles or provisions of law, statutory or otherwise, which are or might be in conflict with
the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder,
(ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or
the enforcement hereof, (iii) any rights to set offs, recoupments and counterclaims, and (iv)
promptness, diligence and any requirement that any Beneficiary protect, secure, perfect or insure
any security interest or lien or any property subject thereto; (f) notices, demands, presentments,
protests, notices of protest, notices of dishonor and notices of any action or inaction, including
acceptance hereof, notices of default hereunder, the Hedge Agreements or any agreement or
instrument related thereto, notices of any renewal, extension or modification of the Guaranteed
Obligations or any agreement related thereto, notices of any extension of credit to Company and
notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof;
and (g) any defenses or benefits that may be derived from or afforded by law which limit the
liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.



     7.6 Guarantors’ Rights of Subrogation, Contribution, etc. Until the Guaranteed Obligations
shall have been indefeasibly paid in full and the Revolving Commitments shall have



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terminated and all Letters of Credit shall have expired or been cancelled, each Guarantor
hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against Company, Telvent or any other Guarantor or any of its assets in connection
with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case
whether such claim, right or remedy arises in equity, under contract, by statute, under common law
or otherwise and including without limitation (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against Company or Telvent with
respect to the Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim,
right or remedy that any Beneficiary now has or may hereafter have against Company, and (c) any
benefit of, and any right to participate in, any collateral or security now or hereafter held by
any Beneficiary. In addition, until the Guaranteed Obligations shall have been indefeasibly paid
in full and the Revolving Commitments shall have terminated and all Letters of Credit shall have
expired or been cancelled, each Guarantor shall withhold exercise of any right of contribution such
Guarantor may have against any other guarantor (including any other Guarantor) of the Guaranteed
Obligations, including, without limitation, any such right of contribution as contemplated by
Section 7.2. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold
the exercise of its rights of subrogation, reimbursement, indemnification and contribution as set
forth herein is found by a court of competent jurisdiction to be void or voidable for any reason,
any rights of subrogation, reimbursement or indemnification such Guarantor may have against
Company, Telvent or against any collateral or security, and any rights of contribution such
Guarantor may have against any such other guarantor, shall be junior and subordinate to any rights
any Beneficiary may have against Company, to all right, title and interest any Beneficiary may have
in any such collateral or security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such subrogation,
reimbursement, indemnification or contribution rights at any time when all Guaranteed Obligations
shall not have been finally and indefeasibly paid in full, such amount shall be held in trust for
Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to Administrative
Agent for the benefit of Beneficiaries to be credited and applied against the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms hereof.




     7.7 Subordination of Other Obligations. Any Indebtedness of Company or any Guarantor now or
hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such indebtedness collected or received by the
Obligee Guarantor after an Event of Default has occurred and is continuing shall be held in trust
for Administrative Agent on behalf of Beneficiaries and shall forthwith be paid over to
Administrative Agent for the benefit of Beneficiaries to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of
the Obligee Guarantor under any other provision hereof.



     7.8 Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect
until all of the Guaranteed Obligations shall have been paid in full and the Revolving Commitments
shall have terminated and all Letters of Credit shall have expired or been cancelled. Each
Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions
giving rise to any Guaranteed Obligations.



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     7.9 Authority of Guarantors or Company. It is not necessary for any Beneficiary to inquire
into the capacity or powers of any Guarantor or Company or the officers, directors or any agents
acting or purporting to act on behalf of any of them.



     7.10 Financial Condition of Company. Any Credit Extension may be made to Company or continued
from time to time, and any Hedge Agreements may be entered into from time to time, in each case
without notice to or authorization from any Guarantor regardless of the financial or other
condition of Company at the time of any such grant or continuation or at the time such Hedge
Agreement is entered into, as the case may be. No Beneficiary shall have any obligation to
disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the
financial condition of Company. Each Guarantor has adequate means to obtain information from
Company on a continuing basis concerning the financial condition of Company and its ability to
perform its obligations under the Credit Documents and the Hedge Agreements, and each Guarantor
assumes the responsibility for being and keeping informed of the financial condition of Company and
of all circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations. Each
Guarantor hereby waives and relinquishes any duty on the part of any Beneficiary to disclose any
matter, fact or thing relating to the business, operations or conditions of Company now known or
hereafter known by any Beneficiary.



     7.11 Bankruptcy, etc.



          (a) So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the
prior written consent of Administrative Agent acting pursuant to the instructions of Requisite
Lenders, commence or join with any other Person in commencing (other than filing a proof of claim)
any bankruptcy, reorganization or insolvency case or proceeding of or against Company or any other
Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired,
discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary,
involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of
Company or any other Guarantor or by any defense which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or administrative body resulting from any such
proceeding.




          (b) Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed
Obligations which accrues after the commencement of any case or proceeding referred to in clause
(a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by
operation of law by reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been
commenced) shall be included in the Guaranteed Obligations because it is the intention of
Guarantors and Beneficiaries that the Guaranteed Obligations which are guaranteed by Guarantors
pursuant hereto should be determined without regard to any rule of law or order which may relieve
Company of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of creditors or similar Person
to pay Administrative Agent, or allow the claim of Administrative Agent in respect of, any such
interest accruing after the date on which such case or proceeding is commenced.




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          (c) In the event that all or any portion of the Guaranteed Obligations are paid by Company,
the obligations of Guarantors hereunder shall continue and remain in full force and effect or be
reinstated, as the case may be, in the event that all or any part of such payment(s) are rescinded
or recovered directly or indirectly from any Beneficiary as a preference, fraudulent transfer or
otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.




     7.12 Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any
Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of
(including by merger or consolidation) in accordance with the terms and conditions hereof, the
Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall
automatically be discharged and released without any further action by any Beneficiary or any other
Person effective as of the time of such Asset Sale.



SECTION 8. EVENTS OF DEFAULT




     8.1 Events of Default. If any one or more of the following conditions or events shall occur:



          (a) Failure to Make Payments When Due. Failure by Company to pay (i) when due any
installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of
voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to
Issuing Bank in reimbursement of any drawing under a Letter of Credit; or (iii) any interest on any
Loan or any fee or any other amount due hereunder within five days after the date due; or




          (b) Default in Other Agreements. (i) Failure of any Credit Party to pay when due any
principal of or interest on or any other amount payable in respect of one or more items of
Indebtedness (other than Indebtedness referred to in Section 6.1(a) or (b)) in an individual
principal amount of $2,000,000 or more or with an aggregate principal amount of $4,000,000 or more,
in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by any
Credit Party with respect to any other material term of (1) one or more items of Indebtedness in
the individual or aggregate principal amounts referred to in clause (i) above or (2) any loan
agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each
case beyond the grace period, if any, provided therefor, if the effect of such breach or default is
to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such
holder or holders), to cause, that Indebtedness to become or be declared due and payable (or
redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as
the case may be; or




          (c) Breach of Certain Covenants. Failure of any Credit Party to perform or comply
with any term or condition contained in Section 2.6, Section 5.2(i) or Section 6; or




          (d) Breach of Representations, etc. Any representation, warranty, certification or
other statement made or deemed made by any Credit Party in any Credit Document or in any statement
or certificate at any time given by any Credit Party in writing pursuant hereto or



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thereto or in connection herewith or therewith shall be false in any material respect as of
the date made or deemed made; or




          (e) Other Defaults Under Credit Documents. Any Credit Party shall default in the
performance of or compliance with any term contained herein or any of the other Credit Documents,
other than any such term referred to in any other Section of this Section 8.1, and such default
shall not have been remedied or waived within thirty days after the earlier of (i) an officer of
such Credit Party becoming aware of such default or (ii) receipt by Company of notice from
Administrative Agent or any Lender of such default; or




          (f) Involuntary Bankruptcy; Appointment of Receiver, etc. (i) A court of competent
jurisdiction shall enter a decree or order for relief in respect of any Credit Party or Telvent in
an involuntary case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect, which decree or order is not stayed; or any other
similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary
case shall be commenced against any Credit Party or Telvent under the Bankruptcy Code or under any
other applicable bankruptcy, insolvency or similar law now or hereafter in effect; or a decree or
order of a court having jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over any Credit Party or
Telvent, or over all or a substantial part of its property, shall have been entered; or there shall
have occurred the involuntary appointment of an interim receiver, trustee or other custodian of any
Credit Party or Telvent for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial part of the property of
any Credit Party or Telvent, and any such event described in this clause (ii) shall continue for
ninety days without having been dismissed, bonded or discharged; or




          (g) Voluntary Bankruptcy; Appointment of Receiver, etc. (i) Any Credit Party or
Telvent shall have an order for relief entered with respect to it or shall commence a voluntary
case under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law
now or hereafter in effect, or shall consent to the entry of an order for relief in an involuntary
case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a receiver, trustee or other custodian for
all or a substantial part of its property; or any Credit Party or Telvent shall make any assignment
for the benefit of creditors; or (ii) any Credit Party or Telvent shall be unable, or shall fail
generally, or shall admit in writing its inability, to pay its debts as such debts become due; or
the board of directors (or similar governing body) of any Credit Party or Telvent (or any committee
thereof) shall adopt any resolution or otherwise authorize any action to approve any of the actions
referred to herein or in Section 8.1(f); or




          (h) Judgments and Attachments. Any money judgment, writ or warrant of attachment or
similar process involving (i) in any individual case an amount in excess of $2,000,000 or (ii) in
the aggregate at any time an amount in excess of $4,000,000 (in either case to the extent not
adequately covered by insurance as to which a solvent and unaffiliated insurance company has
acknowledged coverage) shall be entered or filed against any Credit Party or any of their
respective assets and shall remain undischarged, unvacated, unbonded or



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unstayed for a period of sixty days (or in any event later than five days prior to the date of
any proposed sale thereunder); or




          (i) Dissolution. Any order, judgment or decree shall be entered against any Credit
Party decreeing the dissolution or split up of such Credit Party and such order shall remain
undischarged or unstayed for a period in excess of sixty days; or




          (j) Employee Benefit Plans. (i) There shall occur one or more ERISA Events which
individually or in the aggregate results in or might reasonably be expected to result in liability
of any Credit Party or any of their respective ERISA Affiliates in excess of $2,000,000 during the
term hereof; or (ii) there exists any fact or circumstance that reasonably could be expected to
result in the imposition of a Lien or security interest under Section 412(n) of the Internal
Revenue Code or under ERISA.




          (k) Change of Control. A Change of Control shall occur; or




          (l) Guaranties, Collateral Documents and other Credit Documents. At any time after
the execution and delivery thereof, (i) any Guaranty for any reason, other than the satisfaction in
full of all Obligations, shall cease to be in full force and effect (other than in accordance with
its terms) or shall be declared to be null and void or any Guarantor shall repudiate its
obligations thereunder, (ii) this Agreement or any Collateral Document ceases to be in full force
and effect (other than by reason of a release of Collateral in accordance with the terms hereof or
thereof or the satisfaction in full of the Obligations in accordance with the terms hereof) or
shall be declared null and void, or Collateral Agent shall not have or shall cease to have a valid
and perfected Lien in any Collateral purported to be covered by the Collateral Documents with the
priority required by the relevant Collateral Document, in each case for any reason other than the
failure of Collateral Agent or any Secured Party to take any action within its control, (iii) any
Credit Party shall contest the validity or enforceability of any Credit Document in writing or deny
in writing that it has any further liability, including with respect to future advances by Lenders,
under any Credit Document to which it is a party or shall contest the validity or perfection of any
Lien in any Collateral purported to be covered by the Collateral Documents, or (iv) Telvent shall
contest the validity or enforceability of the Telvent Pledge Agreement in writing or deny in
writing that it has any further liability, including with respect to future advances by Lenders,
under the Telvent Pledge Agreement or shall contest the validity or perfection of any Lien in any
Collateral purported to be covered by the Collateral Documents;



THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g),
automatically, and (2) upon the occurrence of any other Event of Default, at the request of (or
with the consent of) Requisite Lenders, upon notice to Company by Administrative Agent, (A) the
Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation
of Issuing Bank to issue any Letter of Credit shall immediately terminate; (B) each of the
following shall immediately become due and payable, in each case without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly waived by each Credit
Party: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal
to the maximum amount that may at any time be drawn under all Letters of Credit then outstanding
(regardless of whether any beneficiary under any such Letter of Credit shall have presented, or
shall be entitled at such time to present, the drafts or other



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documents or certificates required to draw under such Letters of Credit) less amounts paid pursuant to (D), and
(III) all other Obligations; provided, the foregoing shall not affect in any way the
obligations of Lenders under Section 2.3(b)(v) or Section 2.4(e); (C) Administrative Agent may
cause Collateral Agent to enforce any and all Liens and security interests created pursuant to
Collateral Documents; and (D) except to the extent paid pursuant to (B)(II), Administrative Agent
shall direct Company to pay (and Company hereby agrees upon receipt of such notice, or upon the
occurrence of any Event of Default specified in Section 8.1(f) and (g) to pay) to Administrative
Agent such additional amounts of cash as reasonably requested by Issuing Bank, to be held as
security for Company’s reimbursement Obligations in respect of Letters of Credit then outstanding
not to exceed the Letter of Credit Usage at such time.




SECTION 9. AGENTS




     9.1 Appointment of Agents. GECC is hereby appointed Administrative Agent and Collateral Agent
hereunder and under the other Credit Documents and each Lender hereby authorizes GECC to act as
Administrative Agent and Collateral Agent in accordance with the terms hereof and the other Credit
Documents. Each Agent hereby agrees to act in its capacity as such upon the express conditions
contained herein and the other Credit Documents, as applicable. The provisions of this Section 9
are solely for the benefit of Agents and Lenders and no Credit Party shall have any rights as a
third party beneficiary of any of the provisions thereof. In performing its functions and duties
hereunder, each Agent shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust with or for any
Credit Party.



     9.2 Powers and Duties. Each Lender irrevocably authorizes each Agent to take such action on
such Lender’s behalf and to exercise such powers, rights and remedies hereunder and under the other
Credit Documents as are specifically delegated or granted to such Agent by the terms hereof and
thereof, together with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly specified herein and the
other Credit Documents. Each Agent may exercise such powers, rights and remedies and perform such
duties by or through its agents or employees. No Agent shall have, by reason hereof or any of the
other Credit Documents, a fiduciary relationship in respect of any Lender; and nothing herein or
any of the other Credit Documents, expressed or implied, is intended to or shall be so construed as
to impose upon any Agent any obligations in respect hereof or any of the other Credit Documents
except as expressly set forth herein or therein.



     9.3 General Immunity.



          (a) No Responsibility for Certain Matters. No Agent shall be responsible to any
Lender for the execution, effectiveness, genuineness, validity, enforceability, collectability or
sufficiency hereof or any other Credit Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or in any financial or
other statements, instruments, reports or certificates or any other documents furnished or made by
any Agent to Lenders or by or on behalf of any Credit Party, and Lender or any person providing the
Settlement Service to any Agent or any Lender in connection with the Credit Documents and the
transactions contemplated thereby or for the financial condition or



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business affairs of any Credit Party or any other Person liable for the payment of any
Obligations, nor shall any Agent be required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants or agreements contained in any of
the Credit Documents or as to the use of the proceeds of the Loans or as to the existence or
possible existence of any Event of Default or Default or to make any disclosures with respect to
the foregoing. Anything contained herein to the contrary notwithstanding, Administrative Agent
shall not have any liability arising from confirmations of the amount of outstanding Loans or the
Letter of Credit Usage or the component amounts thereof.




          (b) Exculpatory Provisions. No Agent nor any of its officers, partners, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by any Agent under
or in connection with any of the Credit Documents except to the extent caused by such Agent’s gross
negligence or willful misconduct. Each Agent shall be entitled to refrain from any act or the
taking of any action (including the failure to take an action) in connection herewith or any of the
other Credit Documents or from the exercise of any power, discretion or authority vested in it
hereunder or thereunder unless and until such Agent, in the case of any Agent other than Collateral
Agent, shall have received instructions in respect thereof from Requisite Lenders (or such other
Lenders as may be required to give such instructions under Section 10.5) or, in the case of
Collateral Agent, in accordance with the applicable Collateral Document, and, upon receipt of such
instructions from Requisite Lenders (or such other Lenders, as the case may be), or in accordance
with the applicable Collateral Document, as the case may be, such Agent shall be entitled to act or
(where so instructed) refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. In no event shall any Agent be liable for punitive, special,
consequential, incidental, exemplary or other similar damages. Without prejudice to the generality
of the foregoing, (i) each Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed by it to be genuine and correct
and to have been signed or sent by the proper Person or Persons, including any Settlement
Confirmation or other communication issues by any Settlement Service, and shall be entitled to rely
and shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for
Company and its Subsidiaries), accountants, experts and other professional advisors selected by it;
and (ii) no Lender shall have any right of action whatsoever against any Agent as a result of such
Agent acting or (where so instructed) refraining from acting hereunder or under any of the other
Credit Documents in accordance with the instructions of Requisite Lenders (or such other Lenders as
may be required to give such instructions under Section 10.5) or, in the case of Collateral Agent,
in accordance with the applicable Collateral Document.




          (c) Delegation of Duties. Administrative Agent may perform any and all of its duties
and exercise its rights and powers under this Agreement or under any other Credit Document by or
through any one or more sub-agents appointed by Administrative Agent in consultation with the
Company. 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 Affiliates. The exculpatory,
indemnification and other provisions of this Section 9.3 and of Section 9.6 shall apply to any the
Affiliates of Administrative 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. All of the rights, benefits, and privileges (including the exculpatory and
indemnification provisions) of this Section 9.3 and of Section 9.6 shall apply to any such



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sub-agent and to the Affiliates of any such sub-agent, and shall apply to their respective
activities as sub-agent as if such sub-agent and Affiliates were named herein. Notwithstanding
anything herein to the contrary, with respect to each sub-agent appointed by the Administrative
Agent, (i) such sub-agent shall be a third party beneficiary under this Agreement with respect to
all such rights, benefits and privileges (including exculpatory rights and rights to
indemnification) and shall have all of the rights and benefits of a third party beneficiary,
including an independent right of action to enforce such rights, benefits and privileges (including
exculpatory rights and rights to indemnification) directly, without the consent or joinder of any
other Person, against any or all of the Credit Parties and the Lenders, (ii) such rights, benefits
and privileges (including exculpatory rights and rights to indemnification) shall not be modified
or amended without the consent of such sub-agent, and (iii) such sub-agent shall only have
obligations to Administrative Agent and not to any Credit Party, Lender or any other Person and no
Credit Party, Lender or any other Person shall have any rights, directly or indirectly, as a third
party beneficiary or otherwise, against such sub-agent.




     9.4 Agents Entitled to Act as Lender. The agency hereby created shall in no way impair or
affect any of the rights and powers of, or impose any duties or obligations upon, any Agent in its
individual capacity as a Lender hereunder. With respect to its participation in the Loans and the
Letters of Credit, each Agent shall have the same rights and powers hereunder as any other Lender
and may exercise the same as if it were not performing the duties and functions delegated to it
hereunder, and the term “Lender” shall, unless the context clearly otherwise indicates, include
each Agent in its individual capacity. Any Agent and its Affiliates may accept deposits from, lend
money to, own securities of, and generally engage in any kind of banking, trust, financial advisory
or other business with Company or any of its Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from Company for services in
connection herewith and otherwise without having to account for the same to Lenders.



     9.5 Lenders’ Representations and Warranties. Each Lender represents and warrants that it has
made its own independent investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with Credit Extensions hereunder and that it has made and shall continue
to make its own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent shall
have any duty or responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Lenders or to provide any Lender with any credit
or other information with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to Lenders.



     9.6 Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been reimbursed by any Credit
Party, for and against any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including counsel fees and disbursements) or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent
in exercising its powers, rights and remedies or performing its duties hereunder or under the other
Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out
of this Agreement or the other Credit Documents; provided, no




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Lender shall be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s
gross negligence or willful misconduct. If any indemnity furnished to any Agent for any purpose
shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts indemnified against until such
additional indemnity is furnished; provided, in no event shall this sentence require any
Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action,
judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof;
and provided further, this sentence shall not be deemed to require any Lender to
indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment,
suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence.




     9.7 Successor Administrative Agent, Collateral Agent and Swing Line Lender. Administrative
Agent and/or Collateral Agent may resign at any time by giving thirty days’ prior written notice
thereof to Lenders and Company, and Administrative Agent may be removed at any time with or without
cause by an instrument or concurrent instruments in writing delivered to Company and Administrative
Agent and signed by Requisite Lenders. Upon any such notice of resignation or any such removal,
Requisite Lenders shall have the right, upon five Business Days’ notice to Company, to appoint a
successor Administrative Agent and/or Collateral Agent, as applicable, reasonably acceptable to
Company. Upon the acceptance of any appointment as Administrative Agent and/or Collateral Agent,
as applicable, hereunder by a successor Administrative Agent, and/or Collateral Agent, as
applicable, that successor Administrative Agent and/or Collateral Agent, as applicable, shall
thereupon succeed to and become vested with all the rights, powers, privileges and duties of the
retiring or removed Administrative Agent and/or Collateral Agent, as applicable, and the retiring
or removed Administrative Agent and/or Collateral Agent, as applicable, shall promptly (i) transfer
to such successor Administrative Agent and/or Collateral Agent, as applicable, all sums, Securities
and other items of Collateral held under the Collateral Documents, together with all records and
other documents necessary or appropriate in connection with the performance of the duties of the
successor Administrative Agent and/or Collateral Agent, as applicable, under the Credit Documents,
and (ii) execute and deliver to such successor Administrative Agent and/or Collateral Agent, as
applicable, such amendments to financing statements, and take such other actions, as may be
necessary or appropriate in connection with the assignment to such successor Administrative Agent
and/or Collateral Agent, as applicable, of the security interests created under the Collateral
Documents, whereupon such retiring or removed Administrative Agent and/or Collateral Agent, as
applicable, shall be discharged from its duties and obligations hereunder. After any retiring or
removed Administrative Agent’s and/or Collateral Agent’s, as applicable, resignation or removal
hereunder as Administrative Agent and/or Collateral Agent’s, as applicable, the provisions of this
Section 9 shall inure to its benefit as to any actions taken or omitted to be taken by it while it
was Administrative Agent and/or Collateral Agent, as applicable, hereunder. Any resignation or
removal of GECC or its successor as Administrative Agent pursuant to this Section shall also
constitute the resignation or removal of GECC or its successor as Swing Line Lender, and any
successor Administrative Agent, appointed pursuant to this Section shall, upon its acceptance of
such appointment, become the successor Swing Line Lender for all purposes hereunder. In such event
(a) Company shall prepay any outstanding Swing Line Loans made by the retiring or removed
Administrative Agent, in its capacity as Swing Line Lender, (b) upon such prepayment, the retiring
or removed Administrative Agent and Swing Line Lender shall surrender any Swing



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Line Note held by it to Company for cancellation, and (c) Company shall issue, if so requested
by successor Administrative Agent and Swing Line Loan Lender, a new Swing Line Note to the
successor Administrative Agent and Swing Line Lender, in the principal amount of the Swing Line
Loan Sublimit then in effect and with other appropriate insertions.




     9.8 Collateral Documents and Guaranty.



          (a) Agents under Collateral Documents and Guaranty. Each Lender hereby further
authorizes Administrative Agent or Collateral Agent, as applicable, on behalf of and for the
benefit of Secured Parties, to be the agent for and representative of Lenders with respect to any
Guaranty, the Collateral and the Collateral Documents. Subject to Section 10.5, without further
written consent or authorization from Lenders, Administrative Agent or Collateral Agent, as
applicable may execute any documents or instruments necessary to (i) in connection with a sale or
disposition of assets permitted by this Agreement, release any Lien encumbering any item of
Collateral that is the subject of such sale or other disposition of assets or to which Requisite
Lenders (or such other Lenders as may be required to give such consent under Section 10.5) have
otherwise consented or (ii) release any Guarantor from any Guaranty pursuant to Section 7.12 or
with respect to which Requisite Lenders (or such other Lenders as may be required to give such
consent under Section 10.5) have otherwise consented.




          (b) Right to Realize on Collateral and Enforce Guaranty. Anything contained in any of
the Credit Documents to the contrary notwithstanding, Company, Administrative Agent, Collateral
Agent and each Lender hereby agree that (i) no Lender shall have any right individually to realize
upon any of the Collateral or to enforce any Guaranty, it being understood and agreed that all
powers, rights and remedies hereunder may be exercised solely by Administrative Agent, on behalf of
Lenders in accordance with the terms hereof and all powers, rights and remedies under the
Collateral Documents may be exercised solely by Collateral Agent, and (ii) in the event of a
foreclosure by Collateral Agent on any of the Collateral pursuant to a public or private sale,
Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such
sale and Collateral Agent, as agent for and representative of Secured Parties (but not any Lender
or Lenders in its or their respective individual capacities unless Requisite Lenders shall
otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Collateral sold at any such public
sale, to use and apply any of the Obligations as a credit on account of the purchase price for any
collateral payable by Collateral Agent at such sale.



SECTION
10. MISCELLANEOUS




     10.1 Notices.



          (a) Notices Generally. Any notice or other communication herein required or permitted
to be given to a Credit Party, Collateral Agent, Administrative Agent, Swing Line Lender or Issuing
Bank, shall be sent to such Person’s address as set forth on Appendix B or in the other relevant
Credit Document, and in the case of any Lender, the address as indicated on Appendix B or otherwise
indicated to Administrative Agent in writing. Except as otherwise set forth in paragraph (b)
below, each notice hereunder shall be in writing and may be personally




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served, telexed or sent by telefacsimile or United States mail, certified return receipt
requested, or courier service and shall be deemed to have been given when delivered in person or by
courier service and signed for against receipt thereof, upon receipt of telefacsimile or telex, or
three Business Days after depositing it in the United States mail with postage prepaid and properly
addressed; provided, no notice to any Agent shall be effective until received by such Agent;
provided further, any such notice or other communication shall at the request of the Administrative
Agent be provided to any sub-agent appointed pursuant to Section 9.3(c) hereto as designated by the
Administrative Agent from time to time.




          (b) Electronic Communications. Notices and other communications to the Lenders and
the Issuing Bank hereunder may be delivered or furnished by electronic communication (including
e-mail and Internet or intranet websites) pursuant to procedures approved by Administrative Agent,
provided that the foregoing shall not apply to notices to any Lender or the Issuing Bank
pursuant to Section 2 if such Lender or the Issuing Bank, as applicable, has notified
Administrative Agent that it is incapable of receiving notices under such Section by electronic
communication. Administrative Agent or Company 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 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.




     10.2 Expenses. Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (a) all the actual and reasonable costs and expenses of preparation
of the Credit Documents and any consents, amendments, waivers or other modifications thereto; (b)
all the costs of furnishing all opinions by counsel for Company and the other Credit Parties; (c)
the reasonable fees, expenses and disbursements of counsel to each of the Agents in connection with
the negotiation, preparation, execution and administration of the Credit Documents and any
consents, amendments, waivers or other modifications thereto and any other documents or matters
requested by Company; (d) all the actual and reasonable out-of-pocket costs and expenses of
creating and perfecting Liens in favor of Collateral Agent, for the benefit of Lenders pursuant
hereto, including filing and recording fees, expenses and taxes, stamp or documentary taxes, search
fees, title insurance premiums and reasonable fees, expenses and disbursements of counsel to each
Agent and of counsel providing any opinions that any Agent or Requisite Lenders may reasonably
request in respect of the Collateral or the Liens created pursuant to the Collateral Documents; (e)
all the actual and reasonable out-of-pocket costs, fees, expenses and disbursements of any
auditors, accountants, consultants or appraisers retained by Collateral Agent; (f) all the actual
and reasonable out-of-pocket costs and expenses of Collateral Agent (including the reasonable fees,
expenses and disbursements of any appraisers, consultants, advisors and agents employed or retained
by Collateral Agent and its



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counsel) in connection with the custody or preservation of any of the Collateral; (g) all
other actual and reasonable costs and expenses incurred by each Agent in connection with the
syndication of the Loans and Commitments and the negotiation, preparation and execution of the
Credit Documents and any consents, amendments, waivers or other modifications thereto and the
transactions contemplated thereby; and (h) after the occurrence of a Default or an Event of
Default, all reasonably out-of-pocket costs and expenses, including reasonable attorneys’ fees and
costs of settlement, incurred by any Agent and Lenders in enforcing any Obligations of or in
collecting any payments due from any Credit Party hereunder or under the other Credit Documents by
reason of such Default or Event of Default (including in connection with the sale of, collection
from, or other realization upon any of the Collateral or the enforcement of any Guaranty) or in
connection with any refinancing or restructuring of the credit arrangements provided hereunder in
the nature of a “work-out” or pursuant to any insolvency or bankruptcy cases or proceedings.




     10.3 Indemnity.



          (a) In addition to the payment of expenses pursuant to Section 10.2, whether or not the
transactions contemplated hereby shall be consummated, each Credit Party agrees to defend (subject
to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent and Lender and
the officers, partners, members, directors, trustees, employees, agents, sub-agents and Affiliates
of each Agent and each Lender (each, an “Indemnitee”), from and against any and all Indemnified
Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee
hereunder with respect to any Indemnified Liabilities to the extent such Indemnified Liabilities
arise from the gross negligence or willful misconduct of that Indemnitee. To the extent that the
undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be
unenforceable in whole or in part because they are violative of any law or public policy, the
applicable Credit Party shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.




          (b) To the extent permitted by applicable law, no Credit Party shall assert, and each Credit
Party hereby waives, any claim against each Lender, each Agent and their respective Affiliates,
directors, employees, attorneys, agents or sub-agents, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or
not the claim therefor is based on contract, tort or duty imposed by any applicable legal
requirement) arising out of, in connection with, arising out of, as a result of, or in any way
related to, this Agreement or any Credit Document or any agreement or instrument contemplated
hereby or thereby or referred to herein or therein, the transactions contemplated hereby or
thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in
connection therewith, and Company hereby waives, releases and agrees not to sue upon any such claim
or any such damages, whether or not accrued and whether or not known or suspected to exist in its
favor.




     10.4 Set-Off. In addition to any rights now or hereafter granted under applicable law and not
by way of limitation of any such rights, upon the occurrence of any Event of Default each Lender is
hereby authorized by each Credit Party at any time or from time to time subject to the consent of
Administrative Agent (such consent not to be unreasonably withheld or delayed),



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without notice to any Credit Party or to any other Person (other than Administrative Agent),
any such notice being hereby expressly waived, to set off and to appropriate and to apply any and
all deposits (general or special, including Indebtedness evidenced by certificates of deposit,
whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any
time held or owing by such Lender to or for the credit or the account of any Credit Party against
and on account of the obligations and liabilities of any Credit Party to such Lender hereunder, the
Letters of Credit and participations therein and under the other Credit Documents, including all
claims of any nature or description arising out of or connected hereto, the Letters of Credit and
participations therein or with any other Credit Document, irrespective of whether or not (a) such
Lender shall have made any demand hereunder or (b) the principal of or the interest on the Loans or
any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have
become due and payable pursuant to Section 2 and although such obligations and liabilities, or any
of them, may be contingent or unmatured.




     10.5 Amendments and Waivers.



          (a) Requisite Lenders’ Consent. Subject to the additional requirements of Sections
10.5(b) and 10.5(c), no amendment, modification, termination or waiver of any provision of the
Credit Documents, or consent to any departure by any Credit Party therefrom, shall in any event be
effective without the written concurrence of the Requisite Lenders.




          (b) Affected Lenders’ Consent. Without the written consent of each Lender (other
than a Defaulting Lender) that would be affected thereby, no amendment, modification, termination,
or consent shall be effective if the effect thereof would:





          (i) extend the scheduled final maturity of any Loan or Note;




          (ii) waive, reduce or postpone any scheduled repayment (but not prepayment);




          (iii) extend the stated expiration date of any Letter of Credit beyond the Revolving
Commitment Termination Date;




          (iv) reduce the rate of interest on any Loan (other than any waiver of any increase in
the interest rate applicable to any Loan pursuant to Section 2.10) or any fee or premium
payable hereunder;




          (v) extend the time for payment of any such interest or fees;




          (vi) reduce the principal amount of any Loan or any reimbursement obligation in respect
of any Letter of Credit;




          (vii) amend, modify, terminate or waive any provision of Section 2.13(b)(ii), this
Section 10.5(b), or Section 10.5(c) or any other provision of this Agreement that expressly
provides that the consent of all Lenders is required;




          (viii) amend the definition of “Requisite Lenders” or “Pro Rata Share”;
provided, with the consent of Requisite Lenders, additional extensions of credit



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pursuant hereto may be included in the determination of “Requisite Lenders” or “Pro
Rata Share” on substantially the same basis as the Tranche C Term Loans, the Revolving
Commitments and the Revolving Loans are included on the Second Restatement Effective Date;




          (ix) release all or substantially all of the Collateral or all or any material
Guarantor from any Guaranty except as expressly provided in the Credit Documents; or




          (x) consent to the assignment or transfer by any Credit Party of any of its rights and
obligations under any Credit Document.



          (c) Other Consents. No amendment, modification, termination or waiver of any
provision of the Credit Documents, or consent to any departure by any Credit Party therefrom,
shall:





          (i) increase any Commitment of any Lender over the amount thereof then in effect
without the consent of such Lender; provided, no amendment, modification or waiver
of any condition precedent, covenant, Default or Event of Default shall constitute an
increase in any Commitment of any Lender;




          (ii) amend, modify, terminate or waive any provision hereof relating to the Swing Line
Sublimit or the Swing Line Loans without the consent of Swing Line Lender;




          (iii) alter the required application of any repayments or prepayments as between
Classes pursuant to Section 2.15 without the consent of Lenders holding more than 50% of
each Class which is being allocated a lesser repayment or prepayment as a result thereof;
provided, Requisite Lenders may waive, in whole or in part, any prepayment so long
as the application, as between Classes, of any portion of such prepayment which is still
required to be made is not altered;




          (iv) amend, modify, terminate or waive any obligation of Lenders relating to the
purchase of participations in Letters of Credit as provided in Section 2.4(e) without the
written consent of Administrative Agent and of Issuing Bank; or




          (v) amend, modify, terminate or waive any provision of Section 9 as the same applies to
any Agent, or any other provision hereof as the same applies to the rights or obligations of
any Agent, in each case without the consent of such Agent.



          (d) Execution of Amendments, etc. Administrative Agent may, but shall have no
obligation to, with the concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of such Lender. Any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given. No notice to or demand on any Credit
Party in any case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this Section 10.5 shall be binding upon each Lender at the time
outstanding, each future Lender and, if signed by a Credit Party, on such Credit Party.




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     10.6 Successors and Assigns; Participations.



          (a) Generally. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of Lenders. No Credit Party’s rights or obligations hereunder nor any
interest therein may be assigned or delegated by any Credit Party to any Person (other than another
Credit Party) without the prior written consent of all Lenders. 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 and, to the extent expressly contemplated
hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.




          (b) Register. Company, Administrative Agent and Lenders shall deem and treat the
Persons listed as Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and (except for a Related Lender
Assignment) no assignment or transfer of any such Commitment or Loan shall be effective, in each
case, unless and until recorded in the Register following receipt of (x) a written or electronic
confirmation of an assignment issued by a Settlement Service pursuant to Section 10.6(d) (a
“Settlement Confirmation”) or (y) an Assignment Agreement effecting the assignment or transfer
thereof, in each case, as provided in Section 10.6(d). Except in the case of a Related Lender
Assignment, each assignment shall be recorded in the Register on the Business Day the Settlement
Confirmation or Assignment Agreement is received by the Administrative Agent, if received by 12:00
noon New York City time, and on the following Business Day if received after such time, prompt
notice thereof shall be provided to Company and a copy of such Assignment Agreement or Settlement
Confirmation shall be maintained, as applicable. Except in the case of a Related Lender
Assignment, the date of such recordation of a transfer shall be referred to herein as the
“Assignment Effective Date.” Any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is listed in the Register as a Lender
shall be conclusive and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.




          (c) Right to Assign. Each Lender shall have the right at any time to sell, assign or
transfer all or a portion of its rights and obligations under this Agreement, including, without
limitation, all or a portion of its Commitment or Loans owing to it or other Obligation
(provided, however, that, except in the case of a Related Lender Assignment, each
such assignment shall be of a uniform, and not varying, percentage of all rights and obligations
under and in respect of any Loan and any related Commitments):





          (i) to any Person meeting the criteria of clause (i) of the definition of the term of
“Eligible Assignee”; and




          (ii) to any Person meeting the criteria of clause (ii) of the definition of the term of
“Eligible Assignee” upon giving of notice to Company and Administrative Agent and, in the
case of assignments of Revolving Loans or Revolving Commitments to any such Person,
consented to by each of Company and Administrative Agent (such consent not to be (x)
unreasonably withheld or delayed or, (y) in the case of Company, required at any time an
Event of Default shall have occurred and then be continuing);



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provided, further, each such assignment pursuant to this Section
10.6(c)(ii) shall be in an aggregate amount of not less than (A) $1,000,000 (or such lesser
amount as may be agreed to by Company and Administrative Agent or as shall constitute the
aggregate amount of the Revolving Commitments and Revolving Loans of the assigning Lender)
with respect to the assignment of the Revolving Commitments and Revolving Loans and (B)
$500,000 (or such lesser amount as may be agreed to by Company and Administrative Agent or
as shall constitute the aggregate amount of the Term Loan of the assigning Lender) with
respect to the assignment of Term Loans.



          (d) Mechanics. (i) Assignments of Term Loans by Lenders may be made via an electronic
settlement system acceptable to Administrative Agent as designated in writing from time to time to
the Lenders by Administrative Agent (the “Settlement Service”). Each such assignment shall be
effected by the assigning Lender and proposed assignee pursuant to the procedures then in effect
under the Settlement Service, which procedures shall be consistent with the other provisions of
this Section 10.6. Each assignor Lender and proposed assignee shall comply with the requirements
of the Settlement Service in connection with effecting any transfer of Loans pursuant to the
Settlement Service. Administrative Agent’s and Company’s consent shall be deemed to have been
granted pursuant to Section 10.6(c)(ii) with respect to any transfer effected through the
Settlement Service. Subject to the other requirements of this Section 10.6, assignments and
assumptions of Term Loans may also be effected by manual execution and delivery to the
Administrative Agent of an Assignment Agreement. Initially, assignments and assumptions of Term
Loans shall be effected by such manual execution until Administrative Agent notifies Lenders to the
contrary. Assignments and assumptions (other than a Related Lender Assignment) of Revolving Loans
and Revolving Commitments shall only be effected by manual execution and delivery to the
Administrative Agent of an Assignment Agreement. Assignments made pursuant to the foregoing
provision shall be effective as of the Assignment Effective Date. In connection with all
assignments (other than a Related Lender Assignment) there shall be delivered to Administrative
Agent such forms, certificates or other evidence, if any, with respect to United States federal
income tax withholding matters as the assignee under such Assignment Agreement may be required to
deliver pursuant to Section 2.20(c), together with payment to the Administrative Agent of a
registration and processing fee of $3,500 (except that no such registration and processing fee
shall be payable in the case of an assignee which is already a Lender or is an Affiliate or Related
Fund of a Lender or a Person under common management with a Lender). Notwithstanding anything
herein or in any Assignment Agreement to the contrary and (i) unless notice to the contrary is
delivered to the Lenders from the Administrative Agent or (ii) so long as no Default or Event of
Default has occurred and is continuing, payment to the assignor by the assignee in respect of the
settlement of an assignment of any Term Loan (but not any Revolving Loan or Revolving Commitment)
shall include such compensation to the assignor as may be agreed upon by the assignor and the
assignee with respect to all unpaid interest which has accrued on such Term Loan to but excluding
the Assignment Effective Date. On and after the applicable Assignment Effective Date, the
applicable assignee shall be entitled to receive all interest paid or payable with respect to the
assigned Term Loan, whether such interest accrued before or after the applicable Assignment
Effective Date.





          (ii) Notwithstanding anything contained in this Section 10.6 to the contrary, a Lender
may effect a Related Lender Assignment without delivering an



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Assignment Agreement to the Administrative Agent and without delivering to the
Administrative Agent any forms, certificates or other evidence, if any, with respect to
United States federal income tax withholding (provided that should an assignee party to a
Related Lender Assignment that is not a Lender deliver an Assignment Agreement for
recording, such assignee shall also deliver such forms, certificates or other evidence as
may be required by Section 2.20(c)); provided that the Company, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such assigning
Lender until such Assignment Agreement has been delivered to the Administrative Agent and
promptly recorded in the Register in accordance with Section 2.7(b). The failure of such
assigning Lender to deliver to the Administrative Agent an Assignment Agreement with respect
to such Related Lender Assignment shall not affect the legality, validity or binding effect
of such assignment, which shall be effective upon the date specified therein. Subject to
the provisions set forth in the following sentence, the Company agrees that each assignee
party to a Related Lender Assignment shall be entitled to the benefits of Sections 2.18(c),
2.19 and 2.20 to the same extent as if it had consummated such assignment by delivery of an
Assignment Agreement pursuant to this Section. To the extent permitted by law, each
assignee party to a Related Lender Assignment also shall be entitled to the benefits of
Section 10.4 provided that as a Lender such assignee shall be subject to Section 2.17. An
assignee party to a Related Lender Assignment shall not be entitled to receive any greater
payment under Section 2.19 or 2.20 than the applicable assignor Lender would have been
entitled to receive with respect to the Loans assigned in such Related Lender Assignment
until an Assignment Agreement and any forms, certificates or other evidence, if any, with
respect to United States federal income tax withholding has been delivered to the
Administrative Agent and such Assignment Agreement is recorded in the Register in accordance
with Section 2.7(b).



          (e) Representations and Warranties of Assignee. Each Lender, upon execution and
delivery hereof or upon succeeding to an interest in the Commitments and Loans, as the case may be,
represents and warrants as of the Assignment Effective Date that (i) it is an Eligible Assignee;
(ii) it has experience and expertise in the making of or investing in commitments or loans such as
the applicable Commitments or Loans, as the case may be; and (iii) it will make or invest in, as
the case may be, its Commitments or Loans for its own account in the ordinary course and without a
view to distribution of such Commitments or Loans within the meaning of the Securities Act or the
Exchange Act or other federal securities laws (it being understood that, subject to the provisions
of this Section 10.6, the disposition of such Commitments or Loans or any interests therein shall
at all times remain within its exclusive control).




          (f) Effect of Assignment. Subject to the terms and conditions of this Section 10.6
and except in the case of a Related Lender Assignment, as of the “Assignment Effective Date” (i)
the assignee thereunder shall have the rights and obligations of a “Lender” hereunder to the extent
of its interest in the Loans and Commitments as reflected in the Register and shall thereafter be a
party hereto and a “Lender” for all purposes hereof; (ii) the assigning Lender thereunder shall, to
the extent that rights and obligations hereunder have been assigned to the assignee, relinquish its
rights (other than any rights which survive the termination hereof under Section 10.8) and be
released from its obligations hereunder (and, in the case of an assignment covering all or the
remaining portion of an assigning Lender’s rights and obligations hereunder,




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such Lender shall cease to be a party hereto on the Assignment Effective Date;
provided, anything contained in any of the Credit Documents to the contrary
notwithstanding, (y) Issuing Bank shall continue to have all rights and obligations thereof with
respect to such Letters of Credit until the cancellation or expiration of such Letters of Credit
and the reimbursement of any amounts drawn thereunder and (z) such assigning Lender shall continue
to be entitled to the benefit of all indemnities hereunder as specified herein with respect to
matters arising out of the prior involvement of such assigning Lender as a Lender hereunder); (iii)
the Commitments shall be modified to reflect any Commitment of such assignee and any Revolving
Commitment of such assigning Lender, if any; and (iv) if any such assignment occurs after the
issuance of any Note hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its applicable Notes to
Administrative Agent for cancellation, and thereupon Company shall issue and deliver new Notes, if
so requested by the assignee and/or assigning Lender, to such assignee and/or to such assigning
Lender, with appropriate insertions, to reflect the outstanding Loans of the assignee and/or the
assigning Lender. An assignment agreement between the assigning Lender and an Affiliate of such
Lender or a Related Fund of such Lender shall be effective as of the date specified in such
assignment agreement.



          (g) Participations. (i) Each Lender shall have the right at any time to sell one or
more participations to any Person (other than Company, any of its Subsidiaries or any of its
Affiliates) in all or any part of its Commitments, Loans or in any other Obligation. The holder of
any such participation, other than an Affiliate of the Lender granting such participation, shall
not be entitled to require such Lender to take or omit to take any action hereunder except with
respect to any amendment, modification or waiver that would (A) extend the final scheduled maturity
of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the
Revolving Commitment Termination Date) in which such participant is participating, or reduce the
rate or extend the time of payment of interest or fees thereon (except in connection with a waiver
of applicability of any post-default increase in interest rates) or reduce the principal amount
thereof, or increase the amount of the participant’s participation over the amount thereof then in
effect (it being understood that a waiver of any Default or Event of Default or of a mandatory
reduction in the Commitment shall not constitute a change in the terms of such participation, and
that an increase in any Commitment or Loan shall be permitted without the consent of any
participant if the participant’s participation is not increased as a result thereof), (B) consent
to the assignment or transfer by any Credit Party of any of its rights and obligations under this
Agreement or (C) release all or substantially all of the Collateral under the Collateral Documents
(except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such
participant is participating. Company agrees that each participant shall be entitled to the
benefits of Sections 2.18(c), 2.19 and 2.20 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (c) of this Section; provided,
(x) a participant shall not be entitled to receive any greater payment under Section 2.19 or 2.20
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
Company’s prior written consent and (y) except as otherwise permitted in Section 2.20, a
participant that would be a Non-US Lender if it were a Lender shall not be entitled to the benefits
of Section 2.20 unless Company is notified of the participation sold to such participant and such
participant agrees, for the benefit of Company, to comply with Section 2.20 as though it were a
Lender. To the extent permitted by law, each participant also shall be entitled to the




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benefits of Section 10.4 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.17 as though it were a Lender.





          (ii) In the event that any Lender sells participations in a Registered Loan, such
Lender, acting for this purpose as a non-fiduciary agent of the Company, shall maintain a
register on which it enters the name of all participants in the Registered Loans held by it
(the “Participant Register”). A Registered Loan (and the registered note, if any,
evidencing the same) may be participated in whole or in part only by registration of such
participation on the Participant Register (and each registered note shall expressly so
provide). Any participation of such Registered Loan (and the registered note, if any,
evidencing the same) may be effected only by the registration of such participation on the
Participant Register.



          (h) Certain Other Assignments. In addition to any other assignment permitted pursuant
to this Section 10.6, any Lender may assign and/or pledge all or any portion of its Loans, the
other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such
Lender including, without limitation, any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors and any operating circular issued by such Federal Reserve
Bank; provided, no Lender, as between Company and such Lender, shall be relieved of any of
its obligations hereunder as a result of any such assignment and pledge, and provided
further, in no event shall the applicable Federal Reserve Bank, pledgee or trustee be
considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take
any action hereunder.




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



     10.8 Survival of Representations, Warranties and Agreements. All representations, warranties
and agreements made herein shall survive the execution and delivery hereof and the making of any
Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the
agreements of each Credit Party set forth in Sections 2.18(c), 2.19, 2.20, 10.2, 10.3 and 10.4 and
the agreements of Lenders set forth in Sections 2.17, 9.3(b) and 9.6 shall survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the reimbursement of any
amounts drawn thereunder, and the termination hereof.



     10.9 No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any
Lender in the exercise of any power, right or privilege hereunder or under any other Credit
Document shall impair such power, right or privilege or be construed to be a waiver of any default
or acquiescence therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other power, right or privilege.
The rights, powers and remedies given to each Agent and each Lender hereby are cumulative and shall
be in addition to and independent of all rights, powers and remedies existing by virtue of any
statute or rule of law or in any of the other Credit Documents or any of the Hedge Agreements. Any
forbearance or failure to exercise, and any delay in exercising, any



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right, power or remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of any such right,
power or remedy.




     10.10 Marshalling; Payments Set Aside. Neither any Agent nor any Lender shall be under any
obligation to marshal any assets in favor of any Credit Party or any other Person or against or in
payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or
payments to Administrative Agent or Lenders (or to Administrative Agent, on behalf of Lenders), or
any Agent or Lenders enforce any security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law, any other state or
federal law, common law or any equitable cause, then, to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies
therefor or related thereto, shall be revived and continued in full force and effect as if such
payment or payments had not been made or such enforcement or setoff had not occurred.



     10.11 Severability. In case any provision in or obligation hereunder or under any other
Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of such provision or
obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.



     10.12 Obligations Several; Independent Nature of Lenders’ Rights. The obligations of Lenders
hereunder are several and no Lender shall be responsible for the obligations or Commitment of any
other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action
taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The amounts payable at
any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall
be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for
any other Lender to be joined as an additional party in any proceeding for such purpose.



     10.13 Headings. Section headings herein are included herein for convenience of reference only
and shall not constitute a part hereof for any other purpose or be given any substantive effect.



     10.14 APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.



     10.15 CONSENT TO JURISDICTION. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY
ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF
NEW YORK. BY EXECUTING AND DELIVERING THIS



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AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES
THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE
APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES
EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY
CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.




     10.16 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/COMPANY RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS
WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT
AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE
TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND
REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS
RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.



     10.17 Confidentiality. Each Lender and each Agent shall hold all non-public information
regarding Telvent and Company and its Subsidiaries and their businesses obtained by such Lender or
Agent pursuant to the requirements hereof or in connection with the closing,



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syndication, administration or enforcement of the Loans or Commitments in accordance with such
Lender’s or Agent’s customary procedures for handling confidential information of such nature, it
being understood and agreed by Company that, in any event, a Lender or Agent may make (i)
disclosures of such information to Affiliates of such Lender and to their agents and advisors that
need to know such information in connection with this Agreement and are advised of this Section
10.17 (and to other persons authorized by a Lender or Agent to organize, present or disseminate
such information in connection with disclosures otherwise made in accordance with this Section
10.17), (ii) disclosures of such information reasonably required by any bona fide or potential
assignee, transferee or participant in connection with the contemplated assignment, transfer or
participation by such Lender of any Loans or any participations therein or by any direct or
indirect contractual counterparties (or the professional advisors thereto) in Hedge Agreements
(provided, such potential assignees, transferees, counterparties and advisors are advised
of and agree to be bound by the provisions of this Section 10.17), (iii) disclosure to any rating
agency when required by it, provided that, prior to any disclosure, such rating agency
shall undertake in writing to preserve the confidentiality of any confidential information relating
to the Credit Parties received by it from any of the Agents or any Lender, and (iv) disclosures
required or requested by any governmental agency or representative thereof or by the NAIC or
pursuant to legal or judicial process; provided, unless specifically prohibited by
applicable law or court order, each Lender and each Agent shall make reasonable efforts to notify
Company of any request by any governmental agency or representative thereof (other than any such
request in connection with any examination of the financial condition or other routine examination
of such Lender by such governmental agency) for disclosure of any such non-public information prior
to disclosure of such information.




     10.18 Press Releases and Related Matters. Each Credit Party and each Agent executing this
Agreement agrees that neither it nor its Affiliates will in the future issue any press releases or
other public disclosure using the name of any Agent or its affiliates or Telvent or any Credit
Party, respectively, or referring to this Agreement or the other Credit Documents without at least
two (2) Business Days’ prior notice to such other party or its affiliates without the prior written
consent of such other party unless (and only to the extent that) such Credit Party or its Affiliate
or Agent or its Affiliate, as the case may be, is required to do so under law and then, in any
event, such party will consult with the other party before issuing such press release or other
public disclosure. Each Credit Party consents to the publication by the Agents or any Lender of
advertising material relating to the financing transactions contemplated by this Agreement using
Company’s name, product photographs, logo or trademark. The Agents reserve the right to provide to
industry trade organizations information necessary and customary for inclusion in league table
measurements.



     10.19 Usury Savings Clause. Notwithstanding any other provision herein, the aggregate
interest rate charged with respect to any of the Obligations, including all charges or fees in
connection therewith deemed in the nature of interest under applicable law shall not exceed the
Highest Lawful Rate. If the rate of interest (determined without regard to the preceding sentence)
under this Agreement at any time exceeds the Highest Lawful Rate, the outstanding amount of the
Loans made hereunder shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due hereunder if the
stated rates of interest set forth in this Agreement had at all times been in effect. In addition,
if when the Loans made hereunder are repaid in full the total interest due



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hereunder (taking into account the increase provided for above) is less than the total amount
of interest which would have been due hereunder if the stated rates of interest set forth in this
Agreement had at all times been in effect, then to the extent permitted by law, Company shall pay
to Administrative Agent such shortfall. Notwithstanding the foregoing, it is the intention of
Lenders and Company to conform strictly to any applicable usury laws. Accordingly, if any Lender
contracts for, charges, or receives any consideration which constitutes interest in excess of the
Highest Lawful Rate, then any such excess shall be cancelled automatically and, if previously paid,
shall at such Lender’s option be applied to the outstanding amount of the Loans made hereunder or
be refunded to Company.




     10.20 Counterparts. This Agreement may be executed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



     10.21 Effectiveness. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and Administrative Agent of
written or telephonic notification of such execution and authorization of delivery thereof.



     10.22 Patriot Act. Each Lender that is subject to Section 326 of the Patriot Act and
Administrative Agent (for itself and not on behalf of any Lender) hereby notifies Company that
pursuant to the requirements of the Act, it is required to obtain, verify and record information
that identifies Company, which information includes the name and address of Company and other
information that will allow such Lender or Administrative Agent, as applicable, to identify Company
in accordance with the Act.



     10.23 Electronic Execution of Assignment. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment Agreement 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.



     10.24 Amendment and Restatement. It is the intention of each of the parties hereto that the
Existing Credit Agreement be amended and restated so as to preserve the perfection and priority of
all security interests securing indebtedness and obligations under the Existing Credit Agreement
and that all Indebtedness and Obligations of Company and its Subsidiaries hereunder and thereunder
shall be secured by the Collateral Documents. The parties hereto further acknowledge and agree
that this Agreement constitutes an amendment of the Existing Credit Agreement made under and in
accordance with the terms of Section 10.5 of the Existing Credit Agreement. In addition, unless
specifically amended hereby, each of the Credit Documents, the Exhibits and Schedules to the
Existing Credit Agreement shall continue in full force and effect and that, from and after the
Second Restatement Effective Date, all references to the “Credit Agreement” contained therein shall
be deemed to refer to this Agreement. Upon the effectiveness of this Agreement, any Default or
Event of Default under the Existing Credit



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Agreement arising prior to the Second Restatement Effective Date and solely with respect to
the Corporate Reorganization (including, without limitation, under Sections 5.1(n), 5.2, 6.9, 6.14
or 8.1(l) of the Existing Credit Agreement or Section 4.1(b)(iii) of the Pledge and Security
Agreement) is hereby waived.




     10.25 Reaffirmation and Grant of Security Interests.



          (a) Each Credit Party, subject to the terms and limits contained herein and in the Collateral
Documents has (i) guarantied the Obligations and (ii) created Liens in favor of Collateral Agent on
certain Collateral to secure its obligations hereunder, under Section 7 hereof and under each
Collateral Document, respectively (and as applicable). Each Credit Party hereby acknowledges that
it has reviewed the terms and provisions of this Agreement and consents to the amendment and
restatement of the Existing Credit Agreement effected pursuant to this Agreement. Each Credit
Party hereby (i) confirms that each Credit Document to which it is a party or is otherwise bound
and all Collateral encumbered thereby will continue to guarantee or secure, as the case may be, to
the fullest extent possible in accordance with the Credit Documents, the payment and performance of
the Obligations, as the case may be, including without limitation the payment and performance of
all such applicable Obligations that are joint and several obligations of each Grantor now or
hereafter existing, and (ii) grants to the Collateral Agent for the benefit of the Secured Parties
a continuing lien on and security interest in and to such Credit Party’s right, title and interest
in, to and under all Collateral as collateral security for the prompt payment and performance in
full when due of all applicable Obligations subject to the terms and limits contained herein and in
the Collateral Documents (whether at stated maturity, by acceleration or otherwise).




          (b) Each Credit Party acknowledges and agrees that any of the Credit Documents to which it is
a party or otherwise bound shall continue in full force and effect and that all of its obligations
thereunder shall be valid and enforceable and shall not be impaired or limited by the execution or
effectiveness of the amendment and restatement of the Existing Credit Agreement. Each Credit Party
represents and warrants that all representations and warranties contained in the Credit Documents
to which it is a party or otherwise bound are true and correct in all material respects on and as
of the Second Restatement Effective Date to the same extent as though made on and as of that date,
except to the extent such representations and warranties specifically relate to an earlier date, in
which case they were true and correct in all material respects on and as of such earlier date.




[Remainder of page intentionally left blank]





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




	 	 	 	 	 
	 	TELVENT DTN, INC.

 	 
	 	By:  	/s/ John Leiferman
 	 
	 	 	Name:  	John Leiferman 	 
	 	 	Title:  	Chief Financial Officer 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION





as Administrative Agent, Collateral Agent,

Swing Line Lender, Issuing Bank and a Lender

 	 
	 	By:  	/s/ Patricia Weitzman
 	 
	 	 	Name:  	Patricia Weitzman 	 
	 	 	Title:  	Duly Authorized Signatory