Exhibit 10.1





Exhibit 10.1




 




CREDIT AGREEMENT




dated as of




March 26, 2010




among




LORILLARD TOBACCO COMPANY,

as Borrower,




LORILLARD, INC.,

as Parent,




The Lenders Party Hereto

and




JPMORGAN CHASE BANK, N.A.,




as Administrative Agent




 






J.P. MORGAN SECURITIES INC. and WELLS FARGO SECURITIES, LLC,

as Joint Bookrunners and Joint Lead Arrangers




WELLS FARGO BANK, N.A.,

as Syndication Agent




and




BARCLAYS BANK PLC and THE ROYAL BANK OF SCOTLAND PLC,

as Co-Documentation Agents




 



 


 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	ARTICLE I Definitions
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01. Defined Terms
	 	 	1	 
	SECTION 1.02. Classification of Loans and Borrowings
	 	 	16	 
	SECTION 1.03. Terms Generally
	 	 	16	 
	SECTION 1.04. Accounting Terms; GAAP
	 	 	17	 
	 
	 	 	 	 
	ARTICLE II The Credits
	 	 	17	 
	 
	 	 	 	 
	SECTION 2.01. Commitments
	 	 	17	 
	SECTION 2.02. Loans and Borrowings
	 	 	17	 
	SECTION 2.03. Requests for Revolving Borrowings
	 	 	18	 
	SECTION 2.04. Swingline Loans
	 	 	18	 
	SECTION 2.05. Letters of Credit
	 	 	19	 
	SECTION 2.06. Funding of Borrowings
	 	 	23	 
	SECTION 2.07. Interest Elections
	 	 	23	 
	SECTION 2.08. Termination and Reduction of Commitments
	 	 	24	 
	SECTION 2.09. Repayment of Loans; Evidence of Debt
	 	 	25	 
	SECTION 2.10. Prepayment of Loans
	 	 	25	 
	SECTION 2.11. Fees
	 	 	26	 
	SECTION 2.12. Interest
	 	 	26	 
	SECTION 2.13. Alternate Rate of Interest
	 	 	27	 
	SECTION 2.14. Increased Costs
	 	 	28	 
	SECTION 2.15. Break Funding Payments
	 	 	29	 
	SECTION 2.16. Taxes
	 	 	29	 
	SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs
	 	 	31	 
	SECTION 2.18. Mitigation Obligations; Replacement of Lenders
	 	 	32	 
	SECTION 2.19. Defaulting Lenders
	 	 	33	 
	SECTION 2.20. Incremental Commitments
	 	 	34	 
	 
	 	 	 	 
	ARTICLE III Representations and Warranties
	 	 	36	 
	 
	 	 	 	 
	SECTION 3.01. Organization; Powers
	 	 	36	 
	SECTION 3.02. Authorization; Enforceability
	 	 	36	 
	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	36	 
	SECTION 3.04. Financial Condition; No Material Adverse Effect; Solvency
	 	 	36	 
	SECTION 3.05. Properties
	 	 	36	 
	SECTION 3.06. Litigation and Environmental Matters
	 	 	37	 
	SECTION 3.07. Compliance with Laws and Contractual Obligations
	 	 	37	 
	SECTION 3.08. Use of Proceeds; Margin Regulations; Investment Company Status
	 	 	37	 
	SECTION 3.09. Taxes
	 	 	37	 
	SECTION 3.10. ERISA
	 	 	37	 
	SECTION 3.11. Disclosure
	 	 	38	 
	 
	 	 	 	 
	ARTICLE IV Conditions
	 	 	38	 
	 
	 	 	 	 
	SECTION 4.01. Effective Date
	 	 	38	 
	SECTION 4.02. Each Credit Event
	 	 	39	 






 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE V Affirmative Covenants
	 	 	39	 
	 
	 	 	 	 
	SECTION 5.01. Financial Statements; Ratings Change and Other Information
	 	 	39	 
	SECTION 5.02. Notices of Material Events
	 	 	40	 
	SECTION 5.03. Existence; Conduct of Business
	 	 	41	 
	SECTION 5.04. Payment of Obligations
	 	 	41	 
	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	41	 
	SECTION 5.06. Books and Records; Inspection Rights
	 	 	41	 
	SECTION 5.07. Compliance with Laws and Contractual Obligations
	 	 	41	 
	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	41	 
	 
	 	 	 	 
	ARTICLE VI Negative Covenants
	 	 	42	 
	 
	 	 	 	 
	SECTION 6.01. Liens
	 	 	42	 
	SECTION 6.02. Fundamental Changes
	 	 	43	 
	SECTION 6.03. Sale and Leaseback Transactions
	 	 	43	 
	SECTION 6.04. Financial Condition Covenants
	 	 	44	 
	SECTION 6.05. Restrictive Agreements
	 	 	44	 
	SECTION 6.06. Subsidiary Indebtedness
	 	 	45	 
	SECTION 6.07. End of Fiscal Years; Fiscal Quarters
	 	 	45	 
	 
	 	 	 	 
	ARTICLE VII Events of Default
	 	 	45	 
	 
	 	 	 	 
	ARTICLE VIII The Agents
	 	 	47	 
	 
	 	 	 	 
	ARTICLE IX Miscellaneous
	 	 	49	 
	 
	 	 	 	 
	SECTION 9.01. Notices
	 	 	49	 
	SECTION 9.02. Waivers; Amendments
	 	 	50	 
	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	50	 
	SECTION 9.04. Successors and Assigns
	 	 	51	 
	SECTION 9.05. Survival
	 	 	54	 
	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	55	 
	SECTION 9.07. Severability
	 	 	55	 
	SECTION 9.08. Right of Setoff
	 	 	55	 
	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	55	 
	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	56	 
	SECTION 9.11. Headings
	 	 	56	 
	SECTION 9.12. Confidentiality
	 	 	56	 
	SECTION 9.13. Interest Rate Limitation
	 	 	57	 
	SECTION 9.14. USA PATRIOT Act
	 	 	57	 
	SECTION 9.15. No Fiduciary Duty
	 	 	58	 






 


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	 	 	Page	 
	 
	 	 	 	 
	ARTICLE X Parent Guaranty
	 	 	58	 
	 
	 	 	 	 
	SECTION 10.01. The Parent Guaranty
	 	 	58	 
	SECTION 10.02. Bankruptcy
	 	 	58	 
	SECTION 10.03. Nature of Liability
	 	 	59	 
	SECTION 10.04. Independent Obligation
	 	 	59	 
	SECTION 10.05. Authorization
	 	 	59	 
	SECTION 10.06. Reliance
	 	 	60	 
	SECTION 10.07. Subordination
	 	 	60	 
	SECTION 10.08. Waiver
	 	 	60	 
	SECTION 10.09. Payments
	 	 	61	 





 


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SCHEDULES:



	 	 	 	 	 
	Schedule 2.01 — Commitments
	 	 	 	 
	Schedule 3.06 — Disclosed Matters
	 	 	 	 






EXHIBITS:



	 	 	 	 	 
	Exhibit A — Form of Assignment and Assumption
	 	 	 	 
	Exhibit B — Opinion of Cahill Gordon & Reindel llp, counsel to the Loan Parties
	 	 	 	 
	Exhibit C — Form of Subsidiary Guarantee Agreement
	 	 	 	 
	Exhibit D — Form of Section 2.16(e) Certificate
	 	 	 	 





 


4









 





CREDIT AGREEMENT




CREDIT AGREEMENT, dated as of March 26, 2010, among LORILLARD TOBACCO COMPANY (the
“Borrower”), LORILLARD, INC. (the “Parent”), the LENDERS party hereto, and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.




The parties hereto agree as follows:



ARTICLE I




Definitions




SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:



“ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to
the Alternate Base Rate.




“Additional Lender” has the meaning assigned to such term in Section 2.20(a).



“Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/100 of 1%) equal
to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.



“Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as
administrative agent for the Lenders under this Agreement and the other Loan Documents and its
successors in such capacity.



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



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



“Agreement” shall mean this Credit Agreement, as modified, supplemented, amended,
restated (including any amendment and restatement hereof), extended or renewed from time to time.



“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1%, provided
that, for the avoidance of doubt, the Adjusted LIBO Rate for any day shall be based on the rate
appearing on the Reuters Page LIBOR01 (or on any successor or substitute page of such page) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Adjusted LIBO Rate, respectively.


 


 









 





“Applicable Percentage” means, with respect to any Lender, the percentage of the total
Commitments represented by such Lender’s Commitment; provided that in the case of Section
2.19 when a Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the
total Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s
Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to any assignments and
to any Lender’s status as a Defaulting Lender at the time of determination.



“Applicable Rate” means, for any day, with respect to any ABR Loan or Eurodollar
Revolving Loan, or with respect to the facility fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the caption “ABR Spread”, “Eurodollar Spread” or
“Facility Fee Rate”, as the case may be, based upon the ratings by Moody’s and S&P, respectively,
applicable on such date to the Index Debt:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ABR	 	 	Eurodollar	 	 	Facility Fee	 
	Index Debt Ratings:	 	Spread	 	 	Spread	 	 	Rate	 
	Category 1


A- or better or A3 or better
	 	 	0.700	%	 	 	1.700	%	 	 	0.300	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 2


Baa1 or BBB+
	 	 	1.125	%	 	 	2.125	%	 	 	0.375	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 3


Baa2 or BBB
	 	 	1.250	%	 	 	2.250	%	 	 	0.500	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 4


Baa3 or BBB-
	 	 	1.375	%	 	 	2.375	%	 	 	0.625	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 5


Ba1 or BB+
	 	 	1.750	%	 	 	2.750	%	 	 	0.750	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Category 6


Ba2 or lower or BB or lower
	 	 	2.250	%	 	 	3.250	%	 	 	1.000	%







For purposes of the foregoing, (i) if either Moody’s or S&P shall not have in effect a rating
for the Index Debt (other than by reason of the circumstances referred to in the last sentence of
this definition), then such rating agency shall be deemed to have established a rating in Category
6; (ii) if the ratings established or deemed to have been established by Moody’s and S&P for the
Index Debt shall fall within different Categories, the Applicable Rate shall be based on the higher
(the highest category being Category 1) of the two ratings unless one of the two ratings is two or
more Categories lower than the other, in which case the Applicable Rate shall be determined by
reference to the Category next below that of the higher of the two ratings; and (iii) if the
ratings established or deemed to have been established by Moody’s and S&P for the Index Debt shall
be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change
shall be effective as of the date on which it is first announced by the applicable rating agency,
irrespective of when notice of such change shall have been furnished by the Borrower to the
Administrative Agent and the Lenders pursuant to Section 5.01 or otherwise. Each change in the
Applicable Rate shall apply during the period commencing on the effective date of such change and
ending on the date immediately preceding the effective date of the next such change. If the rating
system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the
business of rating corporate debt obligations, the Parent, the Borrower and the Lenders shall
negotiate in good faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.


 


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“Approved Fund” means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.



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



“Availability Period” means the period from and including the Effective Date to but
excluding the earlier of the Maturity Date and any other date of termination of the Commitments.



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



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



“Board of Directors” means the board of directors of the Parent or the Borrower, as
applicable, or any duly authorized committee of that board or any director or directors and/or
officer or officers of the Parent or the Borrower, as applicable, to whom that board or committee
shall have duly delegated its authority.




“Borrower” has the meaning provided in the first paragraph of this Agreement.



“Borrowing” means (a) Revolving Loans of the same Type, made, converted or continued
on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in
effect or (b) a Swingline Loan.



“Borrowing Request” means a request by the Borrower for a Revolving Borrowing in
accordance with Section 2.03.



“Business Day” means any day that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed;
provided that, when used in connection with a Eurodollar Loan, the term “Business
Day” shall also exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.



“Capital Lease Obligations” means, as to any Person, the obligations of such Person to
pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real
or personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations at any time shall be the capitalized amount
thereof at such time determined in accordance with GAAP.


 


3









 





“Change in Control” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities Exchange
Act of 1934 and the rules of the SEC thereunder as in effect on the date hereof), of Equity
Interests representing more than 50% of the aggregate ordinary voting power represented by the
issued and outstanding Equity Interests of the Borrower; (b) the first day on which a majority of
the members of the Borrower’s Board of Directors are not Continuing Directors; or (c) the Parent
shall at any time cease to own directly 100% of the Equity Interests of the Borrower. 



“Change in Law” means (a) the adoption of any law, rule or regulation after the
Effective Date, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Effective Date or (c) compliance by any
Lender or Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of such Lender
or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority made or issued
after the Effective Date.




“Charges” has the meaning assigned to such term in Section 9.13.



“Class”, when used in reference to any Loan or Borrowing, refers to whether such Loan,
or the Loans comprising such Borrowing, are Revolving Loans or Swingline Loans.




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



“Commitment” means, with respect to each Lender, the commitment of such Lender to make
Revolving Loans and to acquire participations in Letters of Credit and Swingline Loans hereunder,
expressed as an amount representing the maximum aggregate amount of such Lender’s Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section
2.08, (b) increased from time to time pursuant to Section 2.20 or (c) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section 9.04. The initial
amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the Assignment and
Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable. The
initial aggregate amount of the Lenders’ Commitments is $185,000,000.




“Commitment Increase” has the meaning assigned to such term in Section 2.20(a).




“Commitment Increase Lender” has the meaning assigned to such term in Section 2.20(a).



“Consolidated Capitalization” means the total of all the assets appearing on the most
recent quarterly or annual consolidated balance sheet of the Parent and its consolidated
Subsidiaries delivered pursuant to Section 5.01(a) or (b), less the following:



(a) current liabilities, including liabilities for indebtedness maturing more than 12 months
from the date of the original creation thereof, but maturing within 12 months from the date of such
consolidated balance sheet; and




(b) deferred income tax liabilities appearing on such consolidated balance sheet.


 


4









 





“Consolidated EBITDA” means, for any period, Consolidated Net Income for such period
plus, without duplication and to the extent reflected as a charge in the statement of such
Consolidated Net Income for such period, the sum of (a) provision for all income taxes, (b)
interest expense, amortization or writeoff of debt discount and debt issuance costs and
commissions, discounts
and other fees and charges associated with Indebtedness (including the Loans), (c)
depreciation and amortization expense, (d) amortization of intangibles (including, but not limited
to, goodwill) and organization costs, (e) any extraordinary losses, (f) any non-cash expenses or
losses and (g) any losses on sales of assets outside of the ordinary course of business (whether or
not otherwise includable as a separate item in the statement of such Consolidated Net Income for
such period), and minus, (a) to the extent included in the statement of such Consolidated Net
Income for such period, the sum of (i) interest income, (ii) any extraordinary gain, (iii) any
non-cash income or gains, and (iv) any gain on sales of assets outside of the ordinary course of
business (whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period), and (b) any cash payments made during such period in
respect of any non-cash items described in clauses (d), (e) or (f) above subsequent to the fiscal
quarter in which the relevant non-cash item was reflected as a charge in the statement of
Consolidated Net Income, all as determined on a consolidated basis. For the purposes of
calculating Consolidated EBITDA for any period of four consecutive fiscal quarters (each, a
“Reference Period”) pursuant to any determination of the Consolidated Leverage Ratio, (i)
if at any time during such Reference Period the Parent or any Subsidiary shall have made any
Material Disposition, the Consolidated EBITDA for such Reference Period shall be reduced by an
amount equal to the Consolidated EBITDA (if positive) attributable to the property that is the
subject of such Material Disposition for such Reference Period or increased by an amount equal to
the Consolidated EBITDA (if negative) attributable thereto for such Reference Period and (ii) if
during such Reference Period the Parent or any Subsidiary shall have made a Material Acquisition,
Consolidated EBITDA for such Reference Period shall be calculated after giving pro forma effect
thereto as if such Material Acquisition occurred on the first day of such Reference Period. As
used in this definition, “Material Acquisition” means any acquisition of property or series
of related acquisitions of property that (a) constitutes assets comprising all or substantially all
of an operating unit of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by the Parent and its Subsidiaries in excess
of $200,000,000; and “Material Disposition” means any Disposition of property or series of
related Dispositions of property that yields gross proceeds to the Parent or any of its
Subsidiaries in excess of $200,000,000.



“Consolidated Interest Coverage Ratio” means, for any period, the ratio of (a)
Consolidated EBITDA for such period to (b) Consolidated Interest Expense for such period.



“Consolidated Interest Expense” means, for any period, total cash interest expense
(including that attributable to Capital Lease Obligations) of the Parent and its Subsidiaries
calculated on a consolidated basis for such period with respect to all outstanding Indebtedness of
the Parent and its Subsidiaries (including all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers’ acceptance financing and net costs under Swap
Agreements in respect of interest rates to the extent such net costs are allocable to such period
in accordance with GAAP).



“Consolidated Leverage Ratio” means, as at the last day of any period, the ratio of
(a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for such period.



“Consolidated Net Income” means, for any period, the consolidated net income (or
loss) of the Parent and its Subsidiaries, determined on a consolidated basis in accordance with
GAAP; provided that there shall be excluded (a) the income (or deficit) of any Person
accrued prior to the date it becomes a Subsidiary of the Parent or is merged into or consolidated
with the Parent or any of its Subsidiaries, subject to the second sentence of the definition of
“Consolidated EBITDA”, (b) the income (or deficit) of any Person (other than a Subsidiary of the
Parent) in which the Parent or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Parent or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any Subsidiary of the
Parent to the extent that the declaration or payment of dividends or similar distributions
by such Subsidiary is not at the time permitted by the terms of any Contractual Obligation or
Requirement of Law applicable to such Subsidiary.


 


5









 





“Consolidated Net Tangible Assets” means the excess over current liabilities of all
assets appearing on the most recent quarterly or annual consolidated balance sheet of the Parent
and its consolidated Subsidiaries delivered pursuant to Section 5.01(a) or (b) less
goodwill and other intangible assets and the minority interests of others in subsidiaries.



“Consolidated Total Debt” means, at any date, the aggregate principal amount of all
Indebtedness of the Parent and its Subsidiaries at such date, determined on a consolidated basis in
accordance with GAAP.



“Continuing Directors” means, as of any date of determination, any member of the
Borrower’s Board of Directors who (1) was a member of such Board of Directors on the Effective Date
or (2) was nominated for election, elected or appointed to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such Board of Directors at
the time of such nomination, election or appointment (either by a specific vote or by approval of
the Borrower’s proxy statement in which such member was named a nominee for election as a director,
without objection to such nomination).



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



“Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.



“Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.



“Defaulting Lender” means any Lender that has (a) failed, within three Business Days
of the date required to be funded or paid, to (i) fund any portion of its Loans or participations
in Letters of Credit or Swingline Loans or (ii) pay over to the Administrative Agent, any Issuing
Bank, the Swingline Lender or any other Lender any other amount required to be paid by it
hereunder, unless, in each case, such Lender notifies the Administrative Agent in writing that
failure is the subject of a good faith dispute and, in the case of any failure to fund under clause
(i), such failure results from such Lender’s good faith determination that (x) the conditions
precedent to funding have not been satisfied or (y) is otherwise the subject of a good faith
dispute; (b) notified the Borrower, the Administrative Agent, any Issuing Bank, the Swingline
Lender or any Lender in writing that it does not intend to comply with any of its funding
obligations under this Agreement or has made a public statement to the effect that it does not
intend to comply with its funding obligations under this Agreement or generally under other
agreements in which it commits to extend credit, (c) failed, within three Business Days after a
good faith request by the Administrative Agent, any Issuing Bank or the Swingline Lender to provide
a certification in writing from such Lender’s chief financial officer that it will comply with the
terms of this Agreement relating to its obligations to fund prospective Loans and participations in
then outstanding Letters of Credit and Swingline Loans; provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agent’s, each
Issuing Lenders’ or the Swingline Lender’s, as the case may be, receipt of such certification, or
(d) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver,
conservator, trustee, administrator, assignee for the benefit of creditors or similar Person
charged with reorganization or liquidation of its business or custodian, appointed for it, or has
taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in
any such proceeding or appointment or has a parent company that has become the subject of a
bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator,
assignee for the benefit of creditors or similar Person charged with reorganization or liquidation
of its business or custodian appointed for it, or has taken any action in furtherance of, or
indicating its consent to, approval of or acquiescence in any such proceeding or appointment;
provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership,
or the acquisition of any ownership, interest in such Lender or a parent company thereof or the
exercise of control over such Lender or parent company thereof by a Governmental Authority or
instrumentality thereof.


 


6









 





“Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.




“dollars” or “$” refers to lawful money of the United States of America.



“Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).



“Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions or binding agreements issued, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation or reclamation of
natural resources, the management, release or threatened release of any Hazardous Material or to
health and safety matters.



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



“Equity Interests” means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity ownership
interests in a Person, and any warrants, options or other rights entitling the holder thereof to
purchase or acquire any such equity interest.



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



“ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Parent or the Borrower, is treated as a single employer under Section 414(b) or
(c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is
treated as a single employer under Section 414 of the Code.



“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Parent, the
Borrower or any of their respective ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Parent, the Borrower or any of their
respective ERISA Affiliates from the PBGC or a plan administrator of any notice relating to an
intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the
incurrence by the Parent, the Borrower or any of their respective ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Parent, the Borrower or any of their respective ERISA Affiliates of any notice,
or the receipt by any Multiemployer Plan from the Parent, the Borrower or any of their respective
ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.


 


7









 





“Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted LIBO Rate.




“Event of Default” has the meaning assigned to such term in Article VII.



“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Parent or the Borrower hereunder, (a) taxes (however denominated) imposed on (or measured by)
its net income, profits, overall gross income or receipts, net worth or capital by the United
States of America (or any political subdivision thereof), or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located, or by any other jurisdiction as a
result of any other present or former connection between such recipient and such jurisdiction
(other than any connection arising solely from the execution, delivery or performance of any Loan
Document), (b) any branch profits taxes imposed by the United States of America or any similar tax
imposed by any jurisdiction described in clause (a) above, (c) in the case of a Foreign Lender
(other than an assignee pursuant to a request by the Borrower under Section 2.18(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender pursuant to a Requirement
of Law in effect on the date such Foreign Lender becomes a party hereto or the date such Foreign
Lender designates a new Lending Office, except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower or the Parent with respect to such withholding tax
pursuant to Section 2.16(a), (d) any Tax that is attributable to a Lender’s failure to comply with
Section 2.16(e) and (e) any United States federal withholding tax that would not have been imposed
but for a failure by such recipient (or any financial institution through which any payment is made
to such recipient) to comply with the applicable requirements of Sections 1471 through 1474 of the
Code and any Treasury regulation promulgated thereunder any such law or published administrative
guidance implementing such Sections.



“Existing Indenture” means the Indenture, dated June 23, 2009, among the Borrower, the
Parent and The Bank of New York Mellon Trust Company, N.A., as trustee, governing the Borrower’s
8.125% Senior Notes due June 23, 2019, as amended, modified and/or supplemented prior to the
Effective Date.



“Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.


 


8









 





“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer or controller of the Borrower or the Parent.



“Foreign Lender” means any Lender that is not a United States person within the
meaning of Section 7701(a)(30) of the Code.




“GAAP” means generally accepted accounting principles in the United States of America.



“Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, administration, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.



“Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity capital or any other
financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or obligation;
provided, that the term Guarantee shall not include endorsements for collection or deposit
in the ordinary course of business.



“Guarantee Agreement” means the Parent Guaranty and, on and after the execution and
delivery thereof, the Subsidiary Guarantee Agreement.



“Guaranteed Creditors” shall mean and include the Administrative Agent, each Lender,
the Swingline Lender, each Issuing Bank and their subsequent permitted assigns.



“Guaranteed Obligations” shall mean the principal of and interest on all Loans
incurred by the Borrower and all reimbursement obligations for LC Disbursements with respect to
Letters of Credit issued for the account of the Borrower, together with all the other obligations
(including obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due) and liabilities (including, without limitation, indemnities and fees
(including any interest accruing after the commencement of any bankruptcy, insolvency, receivership
or similar proceeding at the rate provided in this Agreement, whether or not such interest is an
allowed claim in any such proceeding)) owing by the Borrower to any Guaranteed Creditor, whether
now existing or hereafter incurred under, arising out of or in connection with, this Agreement and
the due performance and compliance by the Borrower with all of the terms, conditions and agreements
contained in this Agreement.




“Guarantors” means the Parent and each Subsidiary Guarantor.



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


 


9









 






“Incremental Amendment” has the meaning assigned to such term in Section 2.20(a).



“Indebtedness” means, of any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money or with respect to deposits or advances of any kind,
(b) all obligations of such Person for the deferred purchase price of property or services (other
than current trade payables incurred in the ordinary course of such Person’s business), (c) all
obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d)
all indebtedness created or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though the rights and remedies of the seller
or lender under such agreement in the event of default are limited to repossession or sale of such
property), (e) all Capital Lease Obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under or in respect of acceptances,
letters of credit or similar arrangements, (g) all Guarantee Obligations of such Person in respect
of obligations of the kind referred to in clauses (a) through (f) above, and (h) all obligations of
the kind referred to in clauses (a) through (g) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the extent the terms of
such Indebtedness expressly provide that such Person is not liable therefor.




“Indemnified Taxes” means Taxes other than Excluded Taxes or Other Taxes.




“Indemnitee” has the meaning assigned to such term in Section 9.03(b).



“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the
Borrower that is not guaranteed by any other Person (other than the Parent) or subject to any other
credit enhancement.




“Information” has the meaning assigned to such term in Section 9.12.



“Information Memorandum” means the Confidential Information Memorandum dated March 3,
2010 relating to the Parent, the Borrower and the Transactions.



“Interest Election Request” means a request by the Borrower to convert or continue a
Revolving Borrowing in accordance with Section 2.07.



“Interest Payment Date” means (a) with respect to any ABR Loan (other than a Swingline
Loan), the last day of each March, June, September and December, (b) with respect to any Eurodollar
Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part
and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’
duration, each day prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period and (c) with respect to any Swingline
Loan, the day that such Loan is required to be repaid.


 


10









 





“Interest Period” means with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the Borrower may elect;
provided, that (i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day unless, in the case of a
Eurodollar Borrowing only, such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the
date on which such Borrowing is made and, in the case of a Revolving Borrowing, thereafter shall be
the effective date of the most recent conversion or continuation of such Borrowing.



“Issuing Bank” means each of JPMorgan Chase Bank, N.A. and Wells Fargo Bank, N.A. in
its capacity as an issuer of Letters of Credit hereunder, and their respective successors in such
capacity as provided in Section 2.05(i). Each Issuing Bank may, in its discretion, arrange for one
or more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which case the term
“Issuing Bank” shall include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.



“LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of
Credit.



“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all
outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements
that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.




“Lead Agents” means the Administrative Agent and the Syndication Agent.



“Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall
have become a party hereto pursuant to an Assignment and Assumption or Section 2.20, other than any
such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. Unless the
context otherwise requires, the term “Lenders” includes the Swingline Lender.




“Letter of Credit” means any letter of credit issued pursuant to this Agreement.



“LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on the Reuters Page LIBOR01 (or on any successor or substitute page of such
page) providing rate quotations comparable to those currently provided on such page of such page,
as determined by the Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00
a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate
for dollar deposits with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the “LIBO Rate” with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.



“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.


 


11









 





“Loan Documents” means this Agreement, any promissory note of the Borrower issued as
described in Section 2.09(e) and, on the execution and delivery thereof, the Subsidiary Guarantee
Agreement.




“Loan Party” means the Parent, the Borrower and each Subsidiary Guarantor.



“Loans” means the loans made by the Lenders to the Borrower pursuant to this
Agreement.




“Margin Stock” has the meaning provided in Regulation U.



“Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, property, or condition (financial or otherwise) or, for purposes of Section 3.06(a),
prospects of the Parent, the Borrower and their respective Subsidiaries taken as a whole, or (b)
the validity or enforceability of this Agreement or any other Loan Document or the rights or
remedies of the Administrative Agent and the Lenders hereunder or thereunder.



“Material Indebtedness” means Indebtedness (other than the Loans and Letters of
Credit), or obligations in respect of one or more Swap Agreements, of any one or more of the Parent
and its Subsidiaries in an aggregate principal amount exceeding $50,000,000. For purposes of
determining Material Indebtedness, the “principal amount” of the obligations of the Parent or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Parent or such Subsidiary would be required to
pay if such Swap Agreement were terminated at such time.



“Material Subsidiary” means (i) the Borrower and (ii) any other Subsidiary of the
Parent now or at any time hereafter meeting any one of the following conditions: (a) the assets of
such Subsidiary exceed 10% of the aggregate assets appearing on the consolidated balance sheet of
the Parent and its consolidated Subsidiaries for the most recently ended fiscal quarter of the
Parent, or (b) the gross revenues of such Subsidiary for the period of four consecutive fiscal
quarters of the Parent most recently ended exceed 10% of the gross revenues of the Parent and its
consolidated Subsidiaries for such period, or (c) such Subsidiary has one or more Subsidiaries and
together therewith would, if considered in the aggregate, constitute a Material Subsidiary within
the terms of clauses (a) and (b) of this definition. Upon the acquisition of a new Subsidiary,
qualification as a “Material Subsidiary” shall be determined on a pro forma basis on the assumption
that such Subsidiary had been acquired at the beginning of the relevant period of four consecutive
fiscal quarters.




“Maturity Date” means March 26, 2013.




“Maximum Rate” has the meaning assigned to such term in Section 9.13.




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



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


 


12









 





“Obligations” shall mean all amounts, direct or indirect, contingent or absolute, of
every type or description, and at any time existing, owing to any Lead Agent, any Issuing Bank, the
Swingline Lender or any Lender pursuant to the terms of this Agreement or any other Loan Document
(including monetary obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such
proceeding).



“Opinion of Counsel” means, a written opinion of independent legal counsel of
recognized standing and, for all other purposes hereof, means a written opinion of counsel
satisfactory to the Administrative Agent, who may be an employee of or counsel to the Borrower or
the Parent, as the case may be.



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




“Parent” has the meaning provided in the first paragraph of this Agreement.



“Parent Guaranty” shall mean the guaranty of the Parent pursuant to Article X of this
Agreement.




“Participant” has the meaning assigned to such term in Section 9.04.




“Participant Register” has the meaning assigned to such term in Section 9.04.




“Patriot Act” has the meaning assigned to such term in Section 9.14.



“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.



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



“Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.



“Prime Rate” means the rate of interest per annum publicly announced from time to time
by JPMorgan Chase Bank, N.A. as its prime rate in effect at its office located at 270 Park Avenue,
New York, New York; each change in the Prime Rate shall be effective from and including the date
such change is publicly announced as being effective.



“Principal Facility” means any facility, together with the land upon which it is
erected and fixtures comprising a part thereof, used primarily for manufacturing, processing or
production and located in the United States, owned or leased pursuant to a capital lease by the
Parent, the Borrower or any of their respective Subsidiaries, that has a gross book value (without
deduction of any depreciation reserve) on the date as of which the determination is being made
exceeding 2% of Consolidated Capitalization.


 


13









 






“Register” has the meaning assigned to such term in Section 9.04.



“Regulation U” means Regulation U of the Board as from time to time in effect and any
successor to all or a portion thereof establishing margin requirements.



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



“Required Lenders” means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time.



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



“Revolving Credit Exposure” means, with respect to any Lender at any time, the sum of
the outstanding principal amount of such Lender’s Revolving Loans and its LC Exposure and Swingline
Exposure at such time.




“Revolving Loan” means a Loan made pursuant to Section 2.03.




“S&P” means Standard & Poor’s.




“Sale and Leaseback Transaction” has the meaning set forth in Section 6.03(a).




“SEC” means the Securities and Exchange Commission and any successor thereto.



“Solvent” means, when used with respect to any Person, that, as of any date of
determination, (a) the amount of the “present fair saleable value” of the assets of such Person
will, as of such date, exceed the amount of all “liabilities of such Person, contingent or
otherwise”, as of such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts become absolute and
matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital
with which to conduct its business, and (d) such Person will be able to pay its debts as they
mature. For purposes of this definition, (i) “debt” means liability on a “claim”, and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (y) right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured or unsecured. The
amount of contingent liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.


 


14









 





“Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate of the
maximum reserve percentage (including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board). Such reserve percentage shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding
and to be subject to such reserve requirements without benefit of or credit for proration,
exemptions or offsets that may be available from time to time to any Lender under such Regulation D
or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.



“subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity the accounts of
which would be consolidated with those of the parent in the parent’s consolidated financial
statements if such financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as
of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by
the parent and one or more subsidiaries of the parent.




“Subsidiary” means any subsidiary of the Parent.



“Subsidiary Guarantor” means each Subsidiary party to a Subsidiary Guarantee
Agreement.



“Subsidiary Guarantee Agreement” means the Subsidiary Guarantee Agreement
substantially in the form of Exhibit C entered into (or to be entered into), at the
election of the Parent, by one or more Subsidiaries.



“Successor Entity” means a corporation in the case of the Parent and a corporation,
limited partnership, limited liability company in the case of the Borrower which succeeds to the
obligations of the Parent or the Borrower, as the case may be, under this Agreement in compliance
with Section 6.02 hereof.



“Swap Agreement” means any agreement with respect to any swap, forward, future or
derivative transaction or option or similar agreement involving, or settled by reference to, one or
more rates, currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk or value or any
similar transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Parent or the Subsidiaries shall be a
Swap Agreement.



“Swingline Exposure” means, at any time, the aggregate principal amount of all
Swingline Loans outstanding at such time. The Swingline Exposure of any Lender at any time shall
be its Applicable Percentage of the total Swingline Exposure at such time.



“Swingline Lender” means JPMorgan Chase Bank, N.A., in its capacity as lender of
Swingline Loans hereunder.




“Swingline Loan” means a Loan made pursuant to Section 2.04.


 


15









 





“Syndication Agent” means Wells Fargo Bank, N.A., in its capacity as syndication agent
for the credit facility evidenced by this Agreement.



“Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority, including any interest
and penalties applicable thereto.



“Transactions” means the execution, delivery and performance by each Loan Party of the
applicable Loan Documents, the borrowing of Loans, the use of the proceeds thereof and the issuance
of Letters of Credit hereunder.



“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Alternate Base Rate.



“Value” means, with respect to a Sale and Leaseback Transaction, as of any particular
time, the amount equal to the greater of (i) the net proceeds of the sale of the property leased
pursuant to such Sale and Leaseback Transaction or (ii) the fair value of such property at the time
of entering into such Sale and Leaseback Transaction, as determined by the Board of Directors of
Parent, in each such case divided first by the number of full years of the term of the lease and
then multiplied by the number of full years of such term remaining at the time of determination,
without regard to any renewal or extension options contained in the lease.



“Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.



SECTION 1.02. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Loan”) or
by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar
Revolving Loan”). Borrowings also may be classified and referred to by Class (e.g., a
“Revolving Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type
(e.g., a “Eurodollar Revolving Borrowing”).



SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.


 


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SECTION 1.04. Accounting Terms; GAAP. (a) Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP,
as in
effect from time to time; provided that, if the Borrower notifies the Administrative
Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application thereof on the operation
of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders
request an amendment to any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application thereof, then such
provision shall be interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.



(b) Notwithstanding any other provision contained herein, all terms of an accounting or
financial nature used herein shall be construed, and all computations of amounts and ratios
referred to herein shall be made, without giving effect to any election under Statement of
Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar
result or effect) to value any Indebtedness or other liabilities of the Parent, the Borrower or any
of their respective Subsidiaries at “fair value”, as defined therein.



ARTICLE II




The Credits




SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein,
each Lender agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in (a) such Lender’s
Revolving Credit Exposure exceeding such Lender’s Commitment or (b) the total Revolving Credit
Exposures exceeding the total Commitments. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.



SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be made as part
of a Borrowing consisting of Revolving Loans made by the Lenders ratably in accordance with their
respective Commitments. The failure of any Lender to make any Loan required to be made by it shall
not relieve any other Lender of its obligations hereunder; provided that the Commitments of
the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make
Loans as required.



(b) Subject to Section 2.13, each Revolving Borrowing shall be comprised entirely of ABR
Loans or Eurodollar Loans as the Borrower may request in accordance herewith. Each Swingline Loan
shall be an ABR Loan. Each Lender at its option may make any Eurodollar Loan by causing any
domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any
exercise of such option shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement.



(c) At the commencement of each Interest Period for any Eurodollar Revolving Borrowing,
such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not
less than $1,000,000. At the time that each ABR Revolving Borrowing is made, such Borrowing shall
be in an aggregate amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in an amount
that is an integral multiple of $100,000 and not less than $500,000. Borrowings of more than one
Type and Class may be
outstanding at the same time; provided that there shall not at any time be more than a
total of 6 Eurodollar Revolving Borrowings outstanding.


 


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(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be
entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period
requested with respect thereto would end after the Maturity Date.



SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone (a) in the case of
a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before
the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Revolving Borrowing to finance the reimbursement of
an LC Disbursement as contemplated by Section 2.05(e) may be given not later than 10:00 a.m., New
York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request
shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent
and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:




(i) the aggregate amount of the requested Borrowing;




(ii) the date of such Borrowing, which shall be a Business Day;




(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;




(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the
term “Interest Period”; and




(v) the location and number of the Borrower’s account to which funds are to be
disbursed, which shall comply with the requirements of Section 2.06.



If no election as to the Type of Revolving Borrowing is specified, then the requested Revolving
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any
requested Eurodollar Revolving Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.



SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions set forth
herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time
during the Availability Period, in an aggregate principal amount at any time outstanding that will
not result in (i) the aggregate principal amount of outstanding Swingline Loans exceeding
$30,000,000 or (ii) the total Revolving Credit Exposures exceeding the total Commitments;
provided that the Swingline Lender shall not be required to make a Swingline Loan to
refinance an outstanding Swingline Loan. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow Swingline Loans.


 


18









 





(b) To request a Swingline Loan, the Borrower shall notify the Administrative Agent of such
request by telephone (confirmed by telecopy), not later than 12:00 noon, New York City time, on
the day of a proposed Swingline Loan. Each such notice shall be irrevocable and shall
specify the requested date (which shall be a Business Day) and amount of the requested Swingline
Loan. The Administrative Agent will promptly advise the Swingline Lender of any such notice
received from the Borrower. The Swingline Lender shall make each Swingline Loan available to the
Borrower by means of a credit to the general deposit account of the Borrower with the Swingline
Lender (or, in the case of a Swingline Loan made to finance the reimbursement of an LC
Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank) by 3:00
p.m., New York City time, on the requested date of such Swingline Loan.



(c) The Swingline Lender may by written notice given to the Administrative Agent not later
than 10:00 a.m., New York City time, on any Business Day require the Lenders to acquire
participations on such Business Day in all or a portion of the Swingline Loans outstanding. Such
notice shall specify the aggregate amount of Swingline Loans in which Lenders will participate.
Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each
Lender, specifying in such notice such Lender’s Applicable Percentage of such Swingline Loan or
Loans. Each Lender hereby absolutely and unconditionally agrees, upon receipt of notice as
provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such
Lender’s Applicable Percentage of such Swingline Loan or Loans. Each Lender acknowledges and
agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph
is absolute and unconditional and shall not be affected by any circumstance whatsoever, including
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with respect to Loans
made by such Lender (and Section 2.06 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly pay to the
Swingline Lender the amounts so received by it from the Lenders. The Administrative Agent shall
notify the Borrower of any participations in any Swingline Loan acquired pursuant to this
paragraph, and thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by the Swingline
Lender from the Borrower (or other party on behalf of the Borrower) in respect of a Swingline Loan
after receipt by the Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the Administrative
Agent shall be promptly remitted by the Administrative Agent to the Lenders that shall have made
their payments pursuant to this paragraph and to the Swingline Lender, as their interests may
appear; provided that any such payment so remitted shall be repaid to the Swingline Lender
or to the Administrative Agent, as applicable, if and to the extent such payment is required to be
refunded to the Borrower for any reason. The purchase of participations in a Swingline Loan
pursuant to this paragraph shall not relieve the Borrower of any default in the payment thereof.



SECTION 2.05. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own
account, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing
Bank, at any time and from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms and conditions of
any form of letter of credit application or other agreement submitted by the Borrower to, or
entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit,
the terms and conditions of this Agreement shall control.


 


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(b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions. To
request the issuance of a Letter of Credit (or the amendment, renewal or extension of an
outstanding Letter of Credit), the Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by the applicable
Issuing Bank) to the applicable
Issuing Bank and the Administrative Agent (reasonably in advance of the requested date of
issuance, amendment, renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of
issuance, amendment, renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this Section 2.05), the
amount of such Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If
requested by an Issuing Bank, the Borrower also shall submit a letter of credit application on
such Issuing Bank’s standard form in connection with any request for a Letter of Credit. A Letter
of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to represent and
warrant that), after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $30,000,000 and (ii) the total Revolving Credit Exposures shall not
exceed the total Commitments.



(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date one year after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, one year after such renewal or
extension) and (ii) the date that is five Business Days prior to the Maturity Date.



(d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) and without any further action on the part of any
Issuing Bank or the Lenders, each Issuing Bank hereby grants to each Lender, and each Lender
hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing Bank,
such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section 2.05, or
of any reimbursement payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph
in respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever.



(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of
a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement not later than 12:00 noon, New York
City time, on the date that such LC Disbursement is made, if the Borrower shall have received
notice of such LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if such
notice has not been received by the Borrower prior to such time on such date, then not later than
12:00 noon, New York City time, on (i) the Business Day that the Borrower receives such notice, if
such notice is received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that the
Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 or 2.04 that such payment be financed with an ABR Revolving Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower’s obligation to make
such payment shall be discharged and replaced by the resulting ABR Revolving Borrowing or
Swingline Loan. If the Borrower fails to make such payment when due, the Administrative Agent
shall notify each Lender of the applicable LC Disbursement, the payment then due


 


20









 





from the Borrower
in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Lender shall pay to the Administrative Agent its
Applicable Percentage of the payment then due from the Borrower, in the same manner as provided in
Section 2.06 with respect to Loans made by such Lender (and Section 2.06 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to such Issuing Bank the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse the applicable Issuing Bank, then to such Lenders and such Issuing Bank as
their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse
a Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.



(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements
as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by any
Issuing Bank under a Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section 2.05, constitute a legal or equitable discharge of, or provide a right of setoff
against, the Borrower’s obligations hereunder. None of the Administrative Agent, the Lenders or
any Issuing Bank, or any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or
failure to make any payment thereunder (irrespective of any of the circumstances referred to in
the preceding sentence), or any error, omission, interruption, loss or delay in transmission or
delivery of any draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of any Issuing Bank;
provided that the foregoing shall not be construed to excuse any Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to consequential
damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by an Issuing Bank’s failure to exercise
care when determining whether drafts and other documents presented under a Letter of Credit comply
with the terms thereof. The parties hereto expressly agree that, in the absence of gross
negligence or willful misconduct on the part of the relevant Issuing Bank (as finally determined
by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in
each such determination. In furtherance of the foregoing and without limiting the generality
thereof, the parties agree that, with respect to documents presented which appear on their face to
be in substantial compliance with the terms of a Letter of Credit, each Issuing Bank may, in its
sole discretion, either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary, or refuse to
accept and make payment upon such documents if such documents are not in strict compliance with
the terms of such Letter of Credit.



(g) Disbursement Procedures. Each Issuing Bank shall, promptly following its
receipt thereof, examine all documents purporting to represent a demand for payment under a Letter
of Credit. Each Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether such Issuing Bank has
made or will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice
shall not relieve the Borrower of its obligation to reimburse such Issuing Bank and the
Lenders with respect to any such LC Disbursement.


 


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(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then,
unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement
is made, the unpaid amount thereof shall bear interest, for each day from and including the date
such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section, then Section 2.12(c) shall apply. Interest accrued pursuant to this paragraph shall be
for the account of the relevant Issuing Bank, except that interest accrued on and after the date
of payment by any Lender pursuant to paragraph (e) of this Section 2.05 to reimburse an Issuing
Bank shall be for the account of such Lender to the extent of such payment.



(i) Replacement of Issuing Bank. Any Issuing Bank may be replaced at any time by
written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank and the
successor Issuing Bank. The Administrative Agent shall notify the Lenders of any such replacement
of any Issuing Bank. At the time any such replacement shall become effective, the Borrower shall
pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section
2.11(b). From and after the effective date of any such replacement, (i) the successor Issuing
Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to
such successor and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement
with respect to Letters of Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.



(j) Cash Collateralization. If any Event of Default shall occur and be continuing,
on the Business Day that the Borrower receives notice from the Administrative Agent or the
Required Lenders demanding the deposit of cash collateral pursuant to this paragraph, the Borrower
shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Lenders, an amount in cash equal to the LC Exposure as of such date
plus any accrued and unpaid interest thereon; provided that the obligation to deposit such
cash collateral shall become effective immediately, and such deposit shall become immediately due
and payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (h) or (i) of Article VII. Such deposit
shall be held by the Administrative Agent as collateral for the payment and performance of the
Obligations. The Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the option and sole discretion of
the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear
interest. Interest or profits, if any, on such investments shall accumulate in such account.
Moneys in such account shall be applied by the Administrative Agent to reimburse each Issuing Bank
for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall
be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure
at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of
the Required Lenders), be applied to satisfy other Obligations. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of an Event of
Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or waived.


 


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SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each Loan to be
made by it hereunder on the proposed date thereof by wire transfer of immediately available funds
by 12:00 noon, New York City time, to the account of the Administrative Agent most recently
designated by it for such purpose by notice to the Lenders; provided that Swingline Loans
shall be made as provided in Section 2.04. The Administrative Agent will make such Loans available
to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and designated by the Borrower
in the applicable Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be remitted by the
Administrative Agent to the relevant Issuing Bank.



(b) Unless the Administrative Agent shall have received notice from a Lender prior to the
proposed date of any Borrowing that such Lender will not make available to the Administrative
Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender
has made such share available on such date in accordance with paragraph (a) of this Section 2.06
and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.
In such event, if a Lender has not in fact made its share of the applicable Borrowing available to
the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the
greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation or (ii) in the case of the
Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender’s Loan included in such
Borrowing.



SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing initially shall be
of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion shall be allocated
ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall not apply to
Swingline Borrowings, which may not be converted or continued.



(b) To make an election pursuant to this Section, the Borrower shall notify the
Administrative Agent of such election by telephone by the time that a Borrowing Request would be
required under Section 2.03 if the Borrower were requesting a Revolving Borrowing of the Type
resulting from such election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form
approved by the Administrative Agent and signed by the Borrower.



(c) Each telephonic and written Interest Election Request shall specify the following
information in compliance with Section 2.02:




(i) the Borrowing to which such Interest Election Request applies and, if different
options are being elected with respect to different portions thereof, the portions thereof
to be allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);


 


23









 






(ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing; and




(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.



If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.



(d) Promptly following receipt of an Interest Election Request, the Administrative Agent
shall advise each Lender of the details thereof and of such Lender’s portion of each resulting
Borrowing.



(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a
Eurodollar Revolving Borrowing prior to the end of the Interest Period applicable thereto, then,
unless such Borrowing is repaid as provided herein, at the end of such Interest Period such
Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request
of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is
continuing (i) no outstanding Revolving Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.



SECTION 2.08. Termination and Reduction of Commitments. (a) Unless previously
terminated, the Commitments shall terminate on the Maturity Date.



(b) The Borrower may at any time terminate, or from time to time reduce, the Commitments;
provided that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $500,000 and not less than $1,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.10, the Revolving Credit Exposures would exceed the total
Commitments.



(c) The Borrower shall notify the Administrative Agent of any election to terminate or
reduce the Commitments under paragraph (b) of this Section 2.08 at least three Business Days prior
to the effective date of such termination or reduction, specifying such election and the effective
date thereof. Promptly following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section
shall be irrevocable; provided that a notice of termination of the Commitments delivered
by the Borrower may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent. Each reduction of
the Commitments shall be made ratably among the Lenders in accordance with their respective
Commitments.


 


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SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Revolving Loan on the Maturity Date and (ii) to the Swingline
Lender
the then unpaid principal amount of each Swingline Loan on the earlier of the Maturity Date
and the first date after such Swingline Loan is made that is the 15th or last day of a calendar
month and is at least two Business Days after such Swingline Loan is made; provided that on
each date that a Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.



(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such
Lender, including the amounts of principal and interest payable and paid to such Lender from time
to time hereunder.



(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder, the Class and Type thereof and the Interest Period applicable
thereto, (ii) the amount of any principal or interest due and payable or to become due and payable
from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.



(d) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this
Section 2.09 shall be prima facie evidence of the existence and amounts of the
obligations recorded therein; provided that the failure of any Lender or the
Administrative Agent to maintain such accounts or any error therein shall not in any manner affect
the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.



(e) Any Lender may request that Loans made by it be evidenced by a promissory note. In such
event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to
such Lender (or, if requested by such Lender, to such Lender and its registered and permitted
assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after assignment pursuant
to Section 9.04) be represented by one or more promissory notes in such form payable to the payee
named therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).



SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the right at any
time and from time to time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section 2.10.



(b) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a
Swingline Loan, the Swingline Lender) by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Revolving Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of prepayment, (ii) in the case of
prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New York City time, one
Business Day before the date of prepayment or (iii) in the case of prepayment of a Swingline Loan,
not later than 12:00 noon, New York City time, on the date of prepayment. Each such notice shall
be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or
portion thereof to be prepaid; provided that, if a notice of prepayment is given in
connection with a conditional notice of termination of the Commitments as contemplated by Section
2.08, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial prepayment of any Revolving Borrowing shall be in an amount that would be permitted
in the case of an advance of a Revolving Borrowing of the same Type as provided in Section 2.02.
Each prepayment of a Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by
Section 2.12.


 


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SECTION 2.11. Fees. (a) The Borrower agrees to pay to the Administrative Agent
for the account of each Lender a facility fee, which shall accrue at the Applicable Rate on the
daily amount of the Commitment of such Lender (whether used or unused) during the period from and
including the Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such
Lender’s Revolving Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure.
Accrued facility fees shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate, commencing on the first
such date to occur after the date hereof; provided that any facility fees accruing after
the date on which the Commitments terminate shall be payable on demand. All facility fees shall be
computed on the basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day).



(b) The Borrower agrees to pay (i) to the Administrative Agent for the account of each
Lender a participation fee with respect to its participations in Letters of Credit, which shall
accrue at the same Applicable Rate used to determine the interest rate applicable to Eurodollar
Revolving Loans on the average daily amount of such Lender’s LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender’s Commitment terminates
and the date on which such Lender ceases to have any LC Exposure, and (ii) to each Issuing Bank a
fronting fee, which shall accrue at the rate or rates per annum separately agreed upon between the
Borrower and such Issuing Bank on the average daily amount of the LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of termination of the
Commitments and the date on which there ceases to be any LC Exposure, as well as each Issuing
Bank’s reasonable and customary fees with respect to the issuance, amendment, renewal or extension
of any Letter of Credit or processing of drawings thereunder. Participation fees and fronting
fees accrued through and including the last day of March, June, September and December of each
year shall be payable on the third Business Day following such last day, commencing on the first
such date to occur after the Effective Date; provided that all such fees shall be payable
on the date on which the Commitments terminate and any such fees accruing after the date on which
the Commitments terminate shall be payable on demand. Any other fees payable to any Issuing Bank
pursuant to this paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the last day).



(c) The Borrower agrees to pay to the Administrative Agent, for its own account, fees
payable in the amounts and at the times separately agreed upon between the Borrower and the
Administrative Agent.



(d) All fees payable hereunder shall be paid on the dates due, in immediately available
funds, to the Administrative Agent (or to any Issuing Bank, in the case of fees payable to it) for
distribution, in the case of facility fees and participation fees, to the Lenders. Fees paid
shall not be refundable under any circumstances.



SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing (including
each Swingline Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.



(b) The Loans comprising each Eurodollar Borrowing shall bear interest at the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate.


 


26









 





(c) Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or
other amount payable by the Borrower hereunder is not paid when due, whether at stated maturity,
upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this
Section or (ii) in the case of any other amount, 2% plus the rate applicable to ABR Loans as
provided in paragraph (a) of this Section 2.12.



(d) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date
for such Loan and upon termination of the Commitments; provided that (i) interest accrued
pursuant to paragraph (c) of this Section 2.12 shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Loan prior to
the end of the Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.



(e) All interest hereunder shall be computed on the basis of a year of 360 days, except that
interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is
based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a
leap year), and in each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or
LIBO Rate shall be determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.



SECTION 2.13. Alternate Rate of Interest. If prior to the commencement of any
Interest Period for a Eurodollar Borrowing:




(a) the Administrative Agent determines (which determination shall be conclusive
absent manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or




(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or
its Loan) included in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Revolving Borrowing
to, or continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be ineffective and
(ii) if any Borrowing Request requests a Eurodollar Revolving Borrowing, such Borrowing shall be
made as an ABR Borrowing; provided that if the circumstances giving rise to such notice
affect only one Type of Borrowings, then the other Type of Borrowings shall be permitted.


 


27









 






SECTION 2.14. Increased Costs. (a) If any Change in Law shall:




(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or any
Issuing Bank; or




(ii) impose on any Lender or any Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of
Credit or participation therein;



and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or such Issuing Bank of participating in, issuing or maintaining
any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or
such Issuing Bank hereunder (whether of principal, interest or otherwise), then the Borrower will
pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.



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



(c) A certificate of a Lender or an Issuing Bank setting forth the amount or amounts
necessary to compensate such Lender or such Issuing Bank or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and
shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing
Bank, as the case may be, the amount shown as due on any such certificate within 10 days after
receipt thereof.



(d) Failure or delay on the part of any Lender or any Issuing Bank to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or such Issuing Bank’s
right to demand such compensation; provided that the Borrower shall not be required to
compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 270 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or
reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 270-day period referred to above shall be extended to include
the period of retroactive effect thereof.




(e) For the avoidance of doubt, this Section 2.14 shall not apply to any Taxes.


 


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SECTION 2.15. Break Funding Payments. In the event of (a) the payment of any
principal of any Eurodollar Loan other than on the last day of an Interest Period applicable
thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan
other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow,
convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section 2.10(b) and is
revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.18, then, in any such event,
the Borrower shall compensate each Lender for the loss, cost and expense attributable to such
event. In the case of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had such event not occurred,
at the Adjusted LIBO Rate that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor (or, in the case of
a failure to borrow, convert or continue, for the period that would have been the Interest Period
for such Loan), over (ii) the amount of interest which would accrue on such principal amount for
such period at the interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other banks in the
eurodollar market. A certificate of any Lender setting forth any amount or amounts that such
Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall
be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.



SECTION 2.16. Taxes. (a) Unless required by applicable Requirements of Law, any
and all payments by or on account of any obligation of the Borrower or the Parent hereunder, under
or with respect to any Loan Document shall be made free and clear of and without deduction for any
Taxes; provided that if the Borrower, the Parent, or the Administrative Agent shall be
required by any applicable Requirement of Law to deduct any Taxes from such payments, then (i) the
Borrower, the Parent, or the Administrative Agent shall, as the case may be, make such deductions,
(ii) the Borrower, the Parent, or the Administrative Agent, as the case may be, shall pay the full
amount deducted to the relevant Governmental Authority in accordance with applicable Requirements
of Law, and (iii) the sum payable by the Borrower shall be increased as necessary so that after all
required deductions for Indemnified Taxes or Other Taxes (including deductions for Indemnified
Taxes or Other Taxes applicable to additional sums payable under this Section 2.16) have been made,
the Administrative Agent, the respective Lender or the respective Issuing Bank (as the case may be)
receives an amount equal to the sum it would have received had no such deductions been made.



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



(c) The Borrower shall indemnify the Administrative Agent, each Lender and each Issuing
Bank, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes
or Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as the case may
be, on or with respect to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) and any reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such payment or
liability (along with an explanation of the Tax matter involved) delivered to the Borrower by a
Lender or an Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or an Issuing Bank, shall be conclusive absent manifest error.



(d) As soon as practicable after any payment of Taxes by the Borrower or the Parent to a
Governmental Authority, the Borrower or the Parent, as the case may be, shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.


 


29









 





(e) Any Lender that is entitled to an exemption from or reduction of withholding Tax
(including backup withholding Tax) under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to the Borrower (and the Administrative Agent), at any time or times
reasonably requested by the Borrower or the Administrative Agent, such properly completed and
executed documentation prescribed by applicable Requirements of Law or as may reasonably be
requested by the Borrower or the Administrative Agent to permit such payments to be made without
such withholding tax or at a reduced rate.



Without limiting the generality of the foregoing, any Foreign Lender shall, to the extent it
is legally entitled to do so, deliver to the Borrower and the Administrative Agent on or prior to
the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter upon the request of the Borrower or the Administrative Agent, but only if such Foreign
Lender is legally entitled to do so), whichever of the following is applicable:




(i) two duly completed copies of Internal Revenue Service Form W-8BEN (or any successor
forms) claiming eligibility for benefits of an income tax treaty to which the United States
is a party,




(ii) two duly completed copies of Internal Revenue Service Form W-8ECI (or any
successor forms),




(iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code, (x) a certificate, in substantially the
form of Exhibit D, or any other form approved by the Administrative Agent, to the
effect that such Foreign Lender is not (A) a “bank” within the meaning of Section
881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in
Section 881(c)(3)(C) of the Code, and that no payments in connection with the Credit
Agreement are effectively connected with such Foreign Lender’s conduct of a U.S. trade or
business and (y) two duly completed copies of Internal Revenue Service Form W-8BEN (or any
successor forms),




(iv) to the extent a Foreign Lender is not the beneficial owner (for example, where the
Foreign Lender is a partnership or participating Lender granting a typical participation),
an Internal Revenue Service Form W-8IMY, accompanied by a Form W-8ECI, W-8BEN, a certificate
in substantially the form of Exhibit D, Form W-9, and/or other certification
documents from each beneficial owner, as applicable; or




(v) any other form prescribed by any applicable Requirement of Law as a basis for
claiming exemption from or a reduction in U.S. federal withholding tax duly completed
together with such supplementary documentation as may be prescribed by any applicable
Requirement of Law to permit the Borrower and the Administrative Agent to determine the
withholding or deduction required to be made.



Each Foreign Lender shall, from time to time after the initial delivery by such Foreign Lender
of the forms described above, whenever a lapse in time or change in such Lender’s circumstances
renders such forms, certificates or other evidence so delivered obsolete or inaccurate, promptly
(1) deliver to the Borrower and the Administrative Agent (in such number of copies as shall be
requested by the recipient) renewals, amendments or additional or successor forms, properly
completed and duly executed by such Foreign Lender, together with any other certificate or
statement of exemption required in order to confirm or establish such Foreign Lender’s status or
that such Foreign Lender is entitled to an exemption
from or reduction in U.S. federal withholding tax or (2) notify Administrative Agent and the
Borrower of its inability to deliver any such forms, certificates or other evidence.


 


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Any Lender that is a United States person within the meaning of Section 7701(a)(30) of the
Code shall deliver to the Borrower and the Administrative Agent on or prior to the date on which
such Lender becomes a Lender under this Agreement (and from time to time thereafter as prescribed
by applicable law or upon the request of the Borrower or the Administrative Agent), two duly
executed and properly completed copies of Internal Revenue Service Form W-9 certifying that it is
not subject to backup withholding.



(f) If the Administrative Agent, a Lender or Issuing Bank determines, in its good faith sole
discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it
has been indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.16, it shall pay over such refund to the Borrower (but only to
the extent of indemnity payments made, or additional amounts paid, by the Borrower under this
Section 2.16 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent, such Lender or such Issuing Bank and
without interest (other than any interest paid by the relevant Governmental Authority with respect
to such refund); provided, that the Borrower, upon the request of the Administrative Agent
or such Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest
or other charges imposed by the relevant Governmental Authority) to the Administrative Agent, such
Lender or such Issuing Bank in the event the Administrative Agent or such Lender is required to
repay such refund to such Governmental Authority. This Section 2.16 shall not be construed to
require the Administrative Agent, any Lender or any Issuing Bank to make available its tax returns
(or any other information relating to its Taxes which it deems reasonably confidential) to the
Borrower or any other Person.



SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Setoffs. (a) The
Borrower shall make each payment required to be made by it hereunder (whether of principal,
interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.14, 2.15
or 2.16, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without setoff or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent, be deemed to have been received on
the next succeeding Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New York, New York,
except payments to be made directly to an Issuing Bank or the Swingline Lender as expressly
provided herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be
made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such
payments received by it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the period of such
extension. All payments hereunder shall be made in dollars.



(b) If at any time insufficient funds are received by and available to the Administrative
Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then
due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then
due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal and unreimbursed LC Disbursements then due to such
parties.


 


31









 





(c) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise,
obtain payment in respect of any principal of or interest on any of its Revolving Loans or
participations in LC Disbursements or Swingline Loans resulting in such Lender receiving payment
of a greater proportion of the aggregate amount of its Revolving Loans and participations in LC
Disbursements and Swingline Loans and accrued interest thereon than the proportion received by any
other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Revolving Loans and participations in LC Disbursements and Swingline
Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be
shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Revolving Loans and participations in LC Disbursements and Swingline
Loans; provided that (i) if any such participations are purchased and all or any portion
of the payment giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and (ii) the provisions
of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Borrower rights of setoff and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Borrower in the amount of
such participation.



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



(e) If any Lender shall fail to make any payment required to be made by it pursuant to
Section 2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), then the Administrative Agent may,
in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts
thereafter received by the Administrative Agent for the account of such Lender and for the benefit
of the Administrative Agent, the Swingline Lender or each Issuing Bank to satisfy such Lender’s
obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii)
hold any such amounts in a segregated account as cash collateral for, and application to, any
future funding obligations of such Lender under such Sections. In the case of each of (i) and
(ii) above, in any order as determined by the Administrative Agent in its discretion.



SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any Lender
requests compensation under Section 2.14, or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, then such Lender shall use reasonable efforts to designate a different lending office
for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such
designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such designation or assignment.


 


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(b) If any Lender requests compensation under Section 2.14, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the account of any
Lender pursuant to Section 2.16, or if any Lender becomes a Defaulting Lender, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent,
require such Lender to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may be another Lender,
if a Lender accepts such assignment); provided that (i) the Borrower shall have received
the prior written consent of the Administrative Agent (and if a Commitment is being assigned, each
Issuing Bank), which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements and Swingline Loans, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the Borrower (in the case of all other amounts) and (iii) in the
case of any such assignment resulting from a claim for compensation under Section 2.14 or payments
required to be made pursuant to Section 2.16, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation cease to apply.




SECTION 2.19. Defaulting Lenders.



Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting
Lender, then the following provisions shall apply for so long as such Lender is a Defaulting
Lender:




(a) fees shall cease to accrue on the unfunded portion of the Commitment of such
Defaulting Lender pursuant to Section 2.11;




(b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not
be included in determining whether all Lenders or the Required Lenders have taken or may
take any action hereunder (including any consent to any amendment or waiver pursuant to
Section 9.02); provided that any waiver, amendment or modification requiring the
consent of all Lenders or each affected Lender shall require the consent of such Defaulting
Lender;




(c) if any Swingline Exposure or LC Exposure exists at the time a Lender becomes a
Defaulting Lender then:




(i) all or any part of such Swingline Exposure and LC Exposure shall be
reallocated among the non-Defaulting Lenders in accordance with their respective
Applicable Percentages but only to the extent (x) the sum of all non-Defaulting
Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Swingline Exposure
and LC Exposure does not exceed the total of all non-Defaulting Lenders’ Commitments
and (y) the conditions set forth in Section 4.02 are satisfied at such time; and




(ii) if the reallocation described in clause (i) above cannot, or can only
partially, be effected, the Borrower shall within one (1) Business Day following
notice by the Administrative Agent (x) first, prepay such Swingline Exposure and (y)
second, cash
collateralize such Defaulting Lender’s LC Exposure (after giving effect to any
partial reallocation pursuant to clause (i) above) in accordance with the procedures
set forth in Section 2.05(j) for so long as such LC Exposure is outstanding;


 


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(iii) if the Borrower cash collateralizes any portion of such Defaulting
Lender’s LC Exposure pursuant to this Section 2.19(c), the Borrower shall not be
required to pay any fees to such Defaulting Lender pursuant to Section 2.11(b) with
respect to such Defaulting Lender’s LC Exposure during the period such Defaulting
Lender’s LC Exposure is cash collateralized;




(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant
to this Section 2.19(c), then the fees payable to the Lenders pursuant to Section
2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable
Percentages; or




(v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor
reallocated pursuant to this Section 2.19(c), then, without prejudice to any rights
or remedies of any Issuing Bank or any Lender hereunder, all facility fees that
otherwise would have been payable to such Defaulting Lender (solely with respect to
the portion of such Defaulting Lender’s Commitment that was utilized by such LC
Exposure) and letter of credit fees payable under Section 2.11(b) with respect to
such Defaulting Lender’s LC Exposure shall be payable to each Issuing Bank until
such LC Exposure is cash collateralized and/or reallocated; and




(d) so long as any Lender is a Defaulting Lender, the Swingline Lender shall not be
required to fund any Swingline Loan and no Issuing Bank shall be required to issue, amend or
increase any Letter of Credit, unless it is satisfied that the related exposure will be 100%
covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be
provided by the Borrower in accordance with Section 2.19(c), and participating interests in
any such newly issued or increased Letter of Credit or newly made Swingline Loan shall be
allocated among non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and
Defaulting Lenders shall not participate therein).



In the event that the Administrative Agent, the Borrower, each Issuing Bank and the Swingline
Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such
Lender to be a Defaulting Lender, then the Swingline Exposure and LC Exposure of the Lenders shall
be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender
shall purchase at par such of the Loans of the other Lenders (other than Swingline Loans) as the
Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans
in accordance with its Applicable Percentage.




SECTION 2.20. Incremental Commitments.



(a) The Borrower may at any time or from time to time after the Effective Date, by notice to
the Administrative Agent, request one or more increases in the amount of the Commitments (each
such increase, a “Commitment Increase”); provided that (i) both at the time of any
such request and upon the effectiveness of any Incremental Amendment referred to below, (x) no
Default shall exist and (y) all representations and warranties in this Agreement or any other Loan
Document shall be true and correct in all material respects and (ii) the aggregate amount of all
Commitment Increases pursuant to this Section 2.20, when added to the initial aggregate amount of
the Lenders’ Commitments on the Effective Date, shall not exceed $300,000,000. Each Commitment
Increase shall be in an aggregate principal amount that is not less than $10,000,000
(provided that such amount may be less than
$10,000,000 if such amount represents all remaining availability under the limit set forth in
the next sentence). Each notice from the Borrower pursuant to this Section 2.20 shall set forth
the requested amount and proposed terms of the relevant Commitment Increase. Commitment Increases
may be provided by any existing Lender or by any other bank or other financial institution (any
such other bank or other financial institution being called an “Additional Lender”);
provided that the



 


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Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Commitment Increases
if such consent would be required under Section 9.04 for an assignment of Revolving Loans or
Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of
Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be
provided by an existing Lender, an increase in such Lender’s Commitment) under this Agreement
pursuant to an amendment (an “Incremental Amendment”) to this Agreement, executed by the
Parent, the Borrower, each Lender agreeing to provide such Commitment Increase, if any, each
Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without
the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or
appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the
provisions of this Section 2.20. The effectiveness of any Incremental Amendment shall be subject
to the satisfaction on the date thereof of each of the conditions set forth in Section 4.02 (it
being understood that all references to “the occasion of any Borrowing” or “issuance, amendment,
renewal or extension of a Letter of Credit” or similar language in such Section 4.02 shall be
deemed to refer to the effective date of such Incremental Amendment) and such other conditions as
the parties thereto shall agree. The Borrower will use the proceeds of the Commitment Increases
for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any
Commitment Increases, unless it so agrees. Upon each increase in the Commitments pursuant to this
Section 2.20, (a) each Lender immediately prior to such increase will automatically and without
further act be deemed to have assigned to each Lender providing a portion of the Commitment
Increase (each, a “Commitment Increase Lender”) in respect of such increase, and each such
Commitment Increase Lender will automatically and without further act be deemed to have assumed, a
portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline
Loans such that, after giving effect to each such deemed assignment and assumption of
participations, the percentage of the aggregate outstanding (i) participations hereunder in
Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender
(including each such Commitment Increase Lender) will equal the percentage of the aggregate
Commitments of all Lenders represented by such Lender’s Commitment and (b) if, on the date of such
increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the
effectiveness of such Commitment Increase be prepaid from the proceeds of additional Revolving
Loans made hereunder (reflecting such increase in Commitments), which prepayment shall be
accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any
Lender in accordance with Section 2.15. The Administrative Agent and the Lenders hereby agree
that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained
elsewhere in this Agreement shall not apply to the transactions effected pursuant to the
immediately preceding sentence.



(b) This Section 2.20 shall supersede any provisions in Section 2.17 or 9.02 to the
contrary.


 


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ARTICLE III




Representations and Warranties




Each of the Parent and the Borrower represents and warrants to the Lenders that:



SECTION 3.01. Organization; Powers. Each of the Parent, the Borrower, each Loan
Party and each of their respective Material Subsidiaries is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the failure to do so,
individually or in the aggregate, would not result in a Material Adverse Effect, is qualified to do
business in, and is in good standing in, every jurisdiction where such qualification is required.



SECTION 3.02. Authorization; Enforceability. The Transactions are within each Loan
Party’s corporate powers and have been duly authorized by all necessary corporate and, if required,
stockholder action. Each Loan Document has been duly executed and delivered by each Loan Party
party thereto, and constitutes a legal, valid and binding obligation of each Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors’ rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.



SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and effect,
(b) will not violate the charter, by-laws or other organizational documents of any Loan Party, (c)
will not violate any material applicable law or regulation or order of any Governmental Authority
in any material respect, (d) will not violate or result in a default under any material agreement
or instrument binding upon the Parent, the Borrower or any of their respective Subsidiaries or
assets, or give rise to a right thereunder to require any payment to be made by the Parent, the
Borrower or any of their respective Subsidiaries, and (e) will not result in the creation or
imposition of any Lien on any asset of Parent, the Borrower or any of their respective
Subsidiaries.



SECTION 3.04. Financial Condition; No Material Adverse Effect; Solvency. (a) The Parent has heretofore furnished to the Administrative Agent (acting on behalf of the Lenders)
its consolidated balance sheet and statements of income, stockholders equity and cash flows as of
and for the fiscal year ended December 31, 2009, reported on by Deloitte & Touche LLP, independent
public accountants. Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of the Parent and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP.



(b) Since December 31, 2009, there has been no event, occurrence or development that,
individually or in the aggregate, has had a Material Adverse Effect.




(c) As of the Effective Date, the Parent, taken together with its Subsidiaries, is Solvent.



SECTION 3.05. Properties. (a) Each of Parent, the Borrower and their respective
Material Subsidiaries has good title to, or valid leasehold interests in, all its real and personal
property material to its business, except for defects in title that would not result in a Material
Adverse Effect.



(b) Each of Parent, the Borrower and their respective Material Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business, and the use thereof by the Parent, the Borrower and their respective
Subsidiaries does not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, would not result in a Material Adverse
Effect.


 


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SECTION 3.06. Litigation and Environmental Matters.



(a) There are (x) no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Parent or the Borrower,
threatened against or affecting the Parent or any of its Subsidiaries or (y) any laws, regulations
or orders enacted or implemented by any Governmental Authority (including those enacted or
implemented but which provide for prospective application after the passage of time) (i) that
would reasonably be expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this Agreement, the other Loan
Documents or the Transactions.



(b) Except for the Disclosed Matters and except with respect to any other matters that,
individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, neither the Parent nor any of its Subsidiaries has (i) failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) any Environmental Liability or (iii) received written
notice of any claim with respect to any Environmental Liability, and neither the Parent nor the
Borrower knows of any reasonable basis for any Environmental Liability.



SECTION 3.07. Compliance with Laws and Contractual Obligations. Each of the Parent
and its Material Subsidiaries is in compliance with all laws, regulations and orders of any
Governmental Authority applicable to it or its property and all Contractual Obligations binding
upon it or its property, except where the failure to do so, individually or in the aggregate, would
not result in a Material Adverse Effect. No Default has occurred and is continuing.



SECTION 3.08. Use of Proceeds; Margin Regulations; Investment Company Status. (a)
All proceeds of the Loans will be utilized for the general corporate and working capital purposes
of the Parent, the Borrower and their respective Subsidiaries.



(b) Neither the making of any Loan hereunder or issuance of any Letter of Credit, nor the
use of the proceeds thereof, will violate or be inconsistent with the provisions of Regulations of
the Board, including Regulations T, U and X, and no part of the proceeds of any Loan or any Letter
of Credit will be used to purchase or carry any Margin Stock or to extend credit for the purpose
of purchasing or carrying any Margin Stock. Not more than 25% of the value of the assets of the
Parent, the Borrower and their respective Subsidiaries is represented by Margin Stock.



(c) None of the Parent, the Borrower or any of their respective Subsidiaries is an
“investment company”, or a company “controlled” by an “investment company”, within the meaning of
the Investment Company Act of 1940, as amended. No Loan Party is subject to regulation under any
Requirement of Law (other than Regulation X of the Board) that limits its ability to incur
Indebtedness.



SECTION 3.09. Taxes. Each of the Parent, the Borrower and their Material
Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been paid by it, except (a)
Taxes that are being contested in good faith by appropriate proceedings and for which the Parent,
the Borrower or such Subsidiary, as applicable, has set aside on its books adequate reserves or (b)
to the extent that the failure to do so would not result in a Material Adverse Effect.



SECTION 3.10. ERISA. No ERISA Event has occurred that, when taken together with all
other such ERISA Events that have occurred, would reasonably be expected to result in a Material
Adverse Effect.


 


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SECTION 3.11. Disclosure. As of the Effective Date, each of the Parent and the
Borrower has disclosed to the Lenders all material agreements, instruments and corporate or other
restrictions to which it or any of its Material Subsidiaries is subject. Neither the
Information Memorandum nor any of the other reports, financial statements, certificates or other
information furnished by or on behalf of the Parent or the Borrower in writing to the
Administrative Agent or any Lender in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so furnished) (in each case,
as taken as a whole) contains any material misstatement of fact or omits to state any material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that, with respect to projected financial information, each
of the Parent and the Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time, it being recognized by the
Administrative Agent and the Lenders that such projected financial information should not be viewed
as facts, and that actual results will differ from such projected financial information and such
differences may be material.



ARTICLE IV




Conditions




SECTION 4.01. Effective Date. The obligations of the Lenders to make Loans and of
each Issuing Bank to issue Letters of Credit hereunder shall not become effective until the date on
which each of the following conditions is satisfied (or waived in accordance with Section 9.02):




(a) The Administrative Agent (or its counsel) shall have received from each party
hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.




(b) The Administrative Agent shall have received the written opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of Cahill Gordon &
Reindel LLP, counsel for the Parent and the Borrower, substantially in the form of
Exhibit B;




(c) The Administrative Agent shall have received such documents and certificates as
the Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing of the Parent and the Borrower, and the authorization of the
Transactions, all in form and substance reasonably satisfactory to the Administrative Agent
and its counsel.




(d) The Administrative Agent shall have received a certificate, dated the Effective
Date and signed by the President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02.




(e) The Administrative Agent shall have received all fees and other amounts due and
payable on or prior to the Effective Date, including, to the extent invoiced a reasonable
time prior to the Effective Date, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.




(f) On or prior to the Effective Date, all material governmental, regulatory and third
party approvals necessary to consummate the financing transactions contemplated by this
Agreement and the other Loan Documents and for the continuing operations of the Parent and
its Subsidiaries (including the Borrower) taken as a whole, shall have been obtained and
remain in full force and effect.


 


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The Administrative Agent shall notify the Parent, the Borrower and the Lenders of the Effective
Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders to make Loans and of each Issuing Bank to issue Letters of Credit
hereunder shall not become effective unless each of the foregoing conditions is satisfied (or
waived pursuant to Section 9.02) at or prior to 5:00 p.m., New York City time, on April 30, 2010
(and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate
at such time).



SECTION 4.02. Each Credit Event. The obligation of each Lender to make a Loan on the
occasion of any Borrowing, and of each Issuing Bank to issue, amend, renew or extend any Letter of
Credit, is subject to the satisfaction of the following conditions:




(a) The representations and warranties made by any Loan Party in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as of the date of
such Borrowing or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable (except to the extent any such representation or warranty speaks only
as of a previous date, in which case it was true and correct in all material respects on and
as of such date).




(b) At the time of and immediately after giving effect to such Borrowing or the
issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no
Default shall have occurred and be continuing.



Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be
deemed to constitute a representation and warranty by the Parent and the Borrower on the date
thereof as to the matters specified in paragraphs (a) and (b) of this Section 4.02.



ARTICLE V




Affirmative Covenants




Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, each of the
Parent and the Borrower covenants and agrees with the Lenders that:



SECTION 5.01. Financial Statements; Ratings Change and Other Information. Each of
the Parent and the Borrower will furnish to the Administrative Agent (acting on behalf of each
Lender):




(a) within 100 days after the end of each fiscal year of the Parent, its audited
consolidated balance sheet and related statements of operations, stockholders’ equity and
cash flows as of the end of and for such year, setting forth in each case in comparative
form the figures for the previous fiscal year, all reported on by Deloitte & Touche LLP or
other independent public accountants of recognized national standing (without a “going
concern” or like qualification or exception and without any qualification or exception as to
the scope of such audit) to the effect that such consolidated financial statements present
fairly in all material respects the financial condition and results of operations of the
Parent and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied;




(b) within 60 days after the end of each of the first three fiscal quarters of each
fiscal year of the Parent, its consolidated balance sheet and related statements of
operations, stockholders’ equity and cash flows as of the end of and for such fiscal quarter
and the then elapsed portion of the fiscal year, setting forth in each case in comparative
form the figures for
the corresponding period or periods of (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and results of operations
of the Parent and its consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;


 


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(c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Parent (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the details thereof and any
action taken or proposed to be taken with respect thereto, (ii) certifying compliance with
Section 6.04 for the applicable period and setting forth reasonably detailed calculations
demonstrating such compliance and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial statements referred
to in Section 3.04 and, if any such change has occurred, specifying the effect of such
change on the financial statements accompanying such certificate;




(d) promptly after the same become publicly available, copies of all periodic and
other reports, proxy statements and other materials filed by the Parent, the Borrower or any
of their respective Subsidiaries with the SEC, or any Governmental Authority succeeding to
any or all of the functions of the SEC, or with any national securities exchange, or
distributed by any of the Parent, the Borrower or any of their respective Subsidiaries to
its shareholders generally, as the case may be;




(e) reasonably promptly after Moody’s or S&P shall have announced a change in the
rating established or deemed to have been established for the Index Debt, written notice of
such rating change; and




(f) reasonably promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the Parent, the
Borrower or any of their respective Subsidiaries, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender (through the Administrative Agent) may
reasonably request.



Notwithstanding the foregoing, to the extent the Parent or the Borrower files the information
and reports referred to in clause (d) above with the SEC and such information is publicly available
on the Internet, the Parent and the Borrower shall be deemed to be in compliance with its
obligations to furnish such information and reports to the Administrative Agent pursuant to clause
(d).



SECTION 5.02. Notices of Material Events. The Parent and the Borrower will furnish
to the Administrative Agent within 5 days of knowledge of an executive officer of the Parent or the
Borrower written notice of the following:




(a) the occurrence of any Default;




(b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Parent or any Subsidiary that
is likely to be determined in a manner adverse to such entity and, if adversely determined,
would reasonably be expected to result in a Material Adverse Effect;




(c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, would reasonably be expected to result in a Material Adverse
Effect; and


 


40









 






(d) any other development that results in, or would reasonably be expected to result
in, a Material Adverse Effect.



Each notice delivered under this Section 5.02 shall be accompanied by a statement of a
Financial Officer or other executive officer of the Borrower or the Parent setting forth the
details of the event or development requiring such notice and any action taken or proposed to be
taken with respect thereto.



SECTION 5.03. Existence; Conduct of Business. Each of the Parent and the Borrower
will, and will cause each of its Material Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises material to the conduct of the business, taken as a
whole; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.



SECTION 5.04. Payment of Obligations. Each of the Parent and the Borrower will, and
will cause each of its Subsidiaries to, pay its obligations, including Tax liabilities, that, if
not paid, would result in a Material Adverse Effect before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (b) the Parent, the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the failure to make payment
pending such contest would not result in a Material Adverse Effect.



SECTION 5.05. Maintenance of Properties; Insurance. Each of the Parent and the
Borrower will, and will cause each of its Material Subsidiaries to, (a) keep and maintain all
property material to the conduct of its business in good working order and condition, ordinary wear
and tear excepted, and (b) maintain insurance in such amounts and against such risks as is
consistent with its past practice.



SECTION 5.06. Books and Records; Inspection Rights. Each of the Parent and the
Borrower will, and will cause each of its Material Subsidiaries to, keep proper books of record and
account in which entries that are full, true and correct in all material respects, taken as a
whole, are made of all dealings and transactions in relation to its business and activities. Each
of the Parent and the Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with the executive officers and independent
accountants of the Parent, all at such reasonable times and intervals and as often as reasonably
requested.



SECTION 5.07. Compliance with Laws and Contractual Obligations. Each of the Parent
and the Borrower will, and will cause each of its Material Subsidiaries to, comply with all laws
(including Environmental Laws), rules, regulations and orders of any Governmental Authority
applicable to it or its property and all Contractual Obligations binding upon it or its property,
except where the failure to do so, individually or in the aggregate, would not result in a Material
Adverse Effect.



SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the Loans will
be used only for general corporate and working capital purposes of the Parent and its Subsidiaries.
No part of the proceeds of any Loan or Letter of Credit will be used, whether directly or
indirectly, for any purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X. After application of the proceeds of any Loan or Letter of
Credit, not more than 25% of the value of the assets of the Parent, the Borrower and their
respective Subsidiaries will be represented by Margin Stock.


 


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ARTICLE VI




Negative Covenants




Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit have expired
or terminated and all LC Disbursements shall have been reimbursed, each of the Parent and the
Borrower covenants and agrees with the Lenders that:



SECTION 6.01. Liens. Each of the Parent and the Borrower will not, and will not
permit any of their respective Subsidiaries to, create, incur, assume or permit to exist any Lien
to secure Indebtedness for borrowed money (i) upon any Equity Interests issued by any of their
respective Subsidiaries that owns any Principal Facility to the extent such shares are owned by the
Parent, the Borrower or one or more of their respective Subsidiaries, or (ii) upon any Principal
Facility, in either case without making effective provision whereby all the Obligations or, in
respect of Liens upon any Principal Facility owned or leased by the Parent, the Guaranteed
Obligations of the Parent under the Parent Guaranty shall be directly secured equally and ratably
with the Indebtedness secured by such Lien, so long as any such Indebtedness shall be so secured,
except:




(a) in the case of a Principal Facility, Liens incurred in connection with the
issuance by a state or political subdivision thereof of any securities the interest on which
is exempt from federal income taxes by virtue of Section 103 of the Code or any other laws
or regulations in effect at the time of such issuance;




(b) any Lien on any property or asset of the Parent or any of its Subsidiaries
existing on the date hereof;




(c) Liens on property or shares of Equity Interests existing when acquired by the
Parent, the Borrower or any Subsidiary (including acquisition through merger, share exchange
or consolidation) or securing the payment of all or part of the purchase price, construction
or improvement thereof incurred prior to, at the time of, or within 180 days after the later
of the acquisition, completion of construction or improvement or commencement of full
operation of such property for the purpose of financing all or a portion of such purchase or
construction or improvement;




(d) Liens for the sole purpose of extending, renewing or replacing in whole or in part
the Indebtedness secured by any Lien referred to in the foregoing clauses (a) through (c) or
in this clause (d); provided, however, that the principal amount of Indebtedness
secured thereby shall not exceed the principal amount of Indebtedness so secured at the time
of such extension, renewal or replacement, and that such extension, renewal or replacement
shall be limited to all or a part of the property which secured the Lien so extended,
renewed or replaced (plus improvements on such property); and




(e) other Liens, provided that the Indebtedness secured thereby, plus
the aggregate Value of the Sale and Leaseback Transactions permitted by the provisions of
Section 6.03(b), does not at the time exceed 15% of Consolidated Net Tangible Assets.


 


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SECTION 6.02. Fundamental Changes.



(a) Neither the Parent nor the Borrower will consolidate with or merge into any other Person
or convey or transfer all or substantially all of the properties and assets of the Parent and its
Subsidiaries substantially as an entirety to any Person unless:




(i) the Successor Entity formed by such consolidation or into which the Borrower or the
Parent, as applicable, is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Parent and its Subsidiaries substantially as an entirety shall
be an entity organized and existing under the laws of the United States of America, any
State thereof or the District of Columbia, and shall expressly assume, by an assignment and
assumption agreement, executed and delivered to the Administrative Agent, in form
satisfactory to the Administrative Agent, the due and punctual payment of all Obligations
(including the principal of (and premium, if any) and interest, if any, on all Loans) and
the performance of every covenant of this Agreement and any Guarantee on the part of the
Borrower or the Parent, as the case may be, to be performed or observed;




(ii) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing; and




(iii) the Borrower or the Parent, as the case may be, has delivered to the
Administrative Agent an officers’ certificate signed by the President, a Vice President or a
Financial Officer of the Borrower or the Parent, as applicable, and an Opinion of Counsel
each stating that such consolidation, merger, conveyance or transfer and such assignment and
assumption agreement comply with this Section 6.02(a) and that all conditions precedent
herein provided for relating to such transaction have been complied with.



(b) Upon any consolidation or merger, or any conveyance or transfer of the properties and
assets of the Parent and its Subsidiaries substantially as an entirety in accordance with Section
6.02(a), the Successor Entity formed by such consolidation or into which the Borrower or the
Parent, as the case may be, is merged or to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Borrower or the Parent,
as the case may be, under this Agreement, with the same effect as if such successor corporation had
been named as the Borrower or the Parent, as the case may be, herein and thereafter the predecessor
entity shall be relieved of all obligations and covenants under this Agreement, and, in the event
of any such consolidation, merger, conveyance or transfer, the Borrower or the Parent, as the case
may be, as the predecessor entity may thereupon or at any time thereafter be dissolved, wound up,
or liquidated.



SECTION 6.03. Sale and Leaseback Transactions. (a) Neither the Parent nor the
Borrower will, nor will permit any Subsidiary to, sell or transfer a Principal Facility now owned
or hereafter acquired with the intention of taking back a lease of such property, except a lease
for a temporary period of less than 3 years, including renewals, with the intent that the use by
the Parent, the Borrower or such Subsidiary will be discontinued on or before the expiration of
such period (any transaction subject to the provisions of this Section 6.03(a) being herein
referred to as a “Sale and Leaseback Transaction”), unless the Borrower shall apply an
amount equal to the value of the property so leased to the retirement (other than any mandatory
retirement), within 180 days of the effective date of any such arrangement, of non-subordinated
Indebtedness for money borrowed by the Borrower which had a stated maturity of more than one year
from the date of its creation.



(b) Notwithstanding the foregoing provisions of Section 6.03(a), the Parent, the Borrower or
any of their respective Subsidiaries may enter into a Sale and Leaseback Transaction which would
otherwise be prohibited by Section 6.03(a); provided that the aggregate Value of all such
Sale and
Leaseback Transactions plus the aggregate Indebtedness permitted to be secured under
the provisions of Section 6.01(e) does not at the time exceed 15% of Consolidated Net Tangible
Assets.


 


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SECTION 6.04. Financial Condition Covenants.



(a) Consolidated Leverage Ratio. The Parent and the Borrower will not permit the
Consolidated Leverage Ratio as at the last day of any period of four consecutive fiscal quarters
of the Parent to exceed 2.25:1.00.



(b) Consolidated Interest Coverage Ratio. The Parent and the Borrower will not
permit the Consolidated Interest Coverage Ratio for any period of four consecutive fiscal quarters
of the Parent to be less than 3.00:1.00.



SECTION 6.05. Restrictive Agreements. The Parent will not permit any of its
Subsidiaries (other than the Borrower and any Subsidiary Guarantor) to, directly or indirectly,
enter into, incur or permit to exist any agreement or other arrangement that prohibits, restricts
or imposes any condition upon the ability of any such Subsidiary (x) to pay dividends or other
distributions with respect to any of its Equity Interests or to make or repay loans or advances to
the Parent, the Borrower or any other Subsidiary Guarantor or to Guarantee Indebtedness of the
Parent, the Borrower or any other Subsidiary Guarantor or (y) transfer any of its properties or
assets to the Parent, the Borrower or any other Subsidiary Guarantor; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or rule, regulation or
order or by this Agreement or any other Loan Document; (ii) the foregoing shall not apply to
restrictions and conditions existing on the date hereof or any extension, renewal, amendment or
modification of any such restriction or condition (in each case, as long as such extension,
renewal, amendment or modification is no more restrictive with respect to such restrictions and
conditions taken as a whole than those contained in the restrictions and conditions prior to such
extension, renewal, amendment or modification); (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of assets (including
Equity Interests) pending such sale, provided such restrictions and conditions apply only to the
assets that are to be sold and such sale is not prohibited hereunder; (iv) the foregoing shall not
apply to any agreement or other instrument of a Person acquired by the Parent or any Subsidiary
that was in existence at the time of such acquisition (but not created in contemplation thereof or
to provide all or any portion of the funds or credit support utilized to consummate such
acquisition), which restriction or condition is not applicable to any Person, or the properties or
assets of any Person, other than the Person or its Subsidiaries, or the property or assets of the
Person or its Subsidiaries so acquired; (v) the foregoing shall not apply to Indebtedness secured
by a Lien not otherwise prohibited hereunder that limits the right of the debtor to dispose of the
assets securing such Indebtedness; (vi) the foregoing shall not apply to customary provisions in
joint venture agreements and other similar agreements relating solely to such joint venture entered
into in the ordinary course of business; (vii) the foregoing shall not apply to customary
provisions contained in leases, licenses and other similar agreements entered into in the ordinary
course of business that impose restrictions of the type described in clause (y) above on the
property subject to such lease; (viii) clause (y) of the foregoing shall not apply to transfer
restrictions in the Existing Indenture or any other indenture or loan agreement, so long as the
transfer restrictions in such other indenture or loan agreement are no more burdensome than those
appearing in the Existing Indenture as in effect on the Effective Date; (ix) clause (y) of the
foregoing shall not apply to customary restrictions contained in any documentation governing any
Sale and Leaseback Transaction not prohibited by this Agreement, so long as such restriction is
applicable only to the assets pledged pursuant to such Sale and Leaseback Transaction; and (x)
clause (y) of the foregoing shall not apply to any agreements governing any purchase money Liens or
Capital Lease Obligations incurred in the ordinary course of business and not otherwise prohibited
hereby (in which case, any prohibition or limitation shall only be effective against the assets
financed thereby).


 


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SECTION 6.06. Subsidiary Indebtedness. The Parent will not permit any of its
Subsidiaries to incur Indebtedness for borrowed money or Guarantee thereof (including any Guarantee
by a Subsidiary of the Parent (other than the Borrower) of Indebtedness of the Parent or the
Borrower) other than (i) Indebtedness of the Borrower, (ii) Indebtedness of a Subsidiary of the
Parent owed to the Parent or another Subsidiary of the Parent, (iii) Indebtedness of any Subsidiary
permitted to be secured by a Lien pursuant to Section 6.01, (iv) Indebtedness of any Subsidiary
arising out of a Sale and Leaseback Transaction permitted pursuant to Section 6.03, and (v)
Indebtedness having an aggregate principal amount not to exceed $100,000,000.



SECTION 6.07. End of Fiscal Years; Fiscal Quarters. The Parent and the Borrower will
not, and will not permit any of their respective Subsidiaries to, cause (i) its or any of its
Subsidiaries’ fiscal years to end on any day other than December 31 of each calendar year and (ii)
its or any of its Subsidiaries’ fiscal quarters to end on any day other than March 31, June 30,
September 30 and December 31 of each calendar year.



ARTICLE VII




Events of Default





If any of the following events (each, an “Event of Default”) shall occur:




(a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other
amount (other than an amount referred to in clause (a) of this Article VII) payable under
this Agreement or any other Loan Document, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of ten Days;




(c) any representation or warranty made or deemed made by any Loan Party in or in
connection with this Agreement or any other Loan Document or any amendment or modification
hereof or waiver hereunder or thereunder, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with this Agreement or any other
Loan Document or any amendment or modification hereof or waiver hereunder or thereunder,
shall prove to have been incorrect in any material respect when made or deemed made;




(d) the Borrower or the Parent shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the Parent’s and
Borrower’s existence only) or 5.08 or in Article VI;




(e) the Borrower or the Parent shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified in clause
(a), (b) or (d) of this Article VII), and such failure shall continue unremedied for a
period of 30 days after written notice thereof from the Administrative Agent or the Required
Lenders to the Parent or the Borrower;




(f) the Parent, the Borrower or any Material Subsidiary shall fail to pay any
principal of or premium or interest in respect of any Material Indebtedness when and as the
same shall become due and payable and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such Material
Indebtedness ;


 


45









 






(g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, the lapse of time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;




(h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Parent, the
Borrower or any Material Subsidiary or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent, the Borrower or any Material
Subsidiary or for a substantial part of its assets, and, in any such case, such proceeding
or petition shall continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;




(i) the Parent, the Borrower or any Material Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other relief
under any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now
or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or petition described in clause (h) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Parent, the Borrower or any Material
Subsidiary or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;




(j) the Parent, the Borrower or any Material Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;




(k) one or more judgments for the payment of money in an aggregate amount in excess of
$50,000,000 shall be rendered against the Parent, the Borrower, any Material Subsidiary or
any combination thereof (excluding any amount paid or covered by independent third-party
insurance as to which the insurer has been notified of such judgment and has not denied
coverage) and the same shall remain undischarged for a period of 60 consecutive days during
which execution shall not be effectively stayed by reason of pending appeal or otherwise, or
any action shall be legally taken by a judgment creditor to attach or levy upon any assets
of the Parent, the Borrower or any Subsidiary to enforce any such judgment;




(l) an ERISA Event shall have occurred that when taken together with all other ERISA
Events that have occurred, would result in a Material Adverse Effect;




(m) a Change in Control shall occur; or




(n) any Guarantee Agreement shall cease to be in full force or effect as to any
Guarantor, or any Guarantor shall deny or disaffirm its obligations under its Guarantee
Agreement, except, in any such case, where such Guarantor has been released from the
applicable Guarantee Agreement in accordance with the terms thereof;


 


46









 





then, and in every such event (other than an event with respect to the Parent or the Borrower
described in clause (h) or (i) of this Article VII), and at any time thereafter during the
continuance of such event, the Administrative Agent may, and at the request of the Required Lenders
shall, by notice to the Parent or the Borrower, take either or both of the following actions, at
the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall
terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole
(or in part, in which case any principal not so declared to be due and payable may thereafter be
declared to be due and payable), and thereupon the principal of the Loans so declared to be due and
payable, together with accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Parent and the Borrower; and in
case of any event with respect to the Parent or the Borrower described in clause (h) or (i) of this
Article VII, the Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Parent and the
Borrower.



ARTICLE VIII




The Agents




Each of the Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms of this Agreement or
any other Loan Document, together with such actions and powers as are reasonably incidental
thereto.



The bank serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Parent, the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.



The Administrative Agent shall not have any duties or obligations except those expressly set
forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary rights and powers
expressly contemplated hereby that the Administrative Agent is required to exercise in writing as
directed by the Required Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable
for the failure to disclose, any information relating to the Parent, the Borrower or any of their
respective Subsidiaries that is communicated to or obtained by the bank serving as Administrative
Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for
any action taken or not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless and until written
notice thereof is given to the Administrative Agent by the Parent, the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with any Loan Document, (ii)
the contents of any certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth in
any Loan Document, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement or any other Loan Document, or (v) the satisfaction of any condition set forth in Article
IV or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.


 


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The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Parent or the Borrower), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.



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



Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, the
Issuing Banks and the Borrower. Upon any such resignation, the Required Lenders shall have the
right, with the consent of the Borrower (not to be unreasonably withheld, delayed or conditioned),
to appoint a successor. If no successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring Administrative Agent gives
notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders and
the Issuing Banks, appoint a successor Administrative Agent, which shall be a bank with an office
in New York, New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The
fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article VIII and Section 9.03
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while it was acting as Administrative Agent.



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



Notwithstanding any other provision of this Agreement, each of the financial institutions
named as “Syndication Agent”, “Joint Bookrunner”, “Joint Lead Arranger” and “Co-Documentation
Agent” on the cover page of this Agreement is named as such for recognition purposes only, and in
its
capacity as such shall have no powers, duties, responsibilities or liabilities with respect to this
Agreement or the transactions contemplated hereby; it being understood and agreed that each such
financial institution in its stated capacity shall be entitled to all indemnification and
reimbursement rights in favor of the Administrative Agent as, and to the extent, provided for under
this Article VIII and Section 9.03. Without limitation of the foregoing, no such financial
institution shall, solely by reason of this Agreement or any other Loan Party, have any fiduciary
relationship in respect of any Lender or any other Person.


 


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ARTICLE IX




Miscellaneous




SECTION 9.01. Notices. (a) Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and
other communications provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:




(i) if to the Borrower or the Parent, to it at 714 Green Valley Road, Greensboro, NC
27408-7018, Attention of General Counsel (Telecopy No. (336) 335-7707);




(ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Investment Bank Loan
Operations, 1111 Fannin Street, 10th Floor, Houston, Texas 77002, Attention of John Ngo
(Telecopy No. (713) 750-2956), with a copy to JPMorgan Chase Bank, N.A., 383 Madison Avenue,
24th Floor, New York, NY 10179, Attention of Lauren Baker (Telecopy No. (212) 270-6637);




(iii) if to JPMorgan Chase Bank, N.A., in its capacity as Issuing Bank, to it at 10420
Highland Manor Drive, Floor 4, Tampa, FL 33610-9128, Attention of Letter of Credit
Department (Telecopy No. (813) 432-5162);




(iv) if to Wells Fargo Bank, N.A., in its capacity as Issuing Bank, to it at Wells
Fargo Bank, N.A., Specialized Loans, 7711 Plantation Road, Roanoke, VA 24019 (Telecopy No.
(704) 715-0099);




(v) if to the Swingline Lender, to JPMorgan Chase Bank, N.A., Investment Bank Loan
Operations, 1111 Fannin Street, 10th Floor, Houston, TX 77002, Attention of John Ngo
(Telecopy No. (713) 750-2956); and




(vi) if to any other Lender, to it at its address (or telecopy number) set forth in its
Administrative Questionnaire.



(b) Notices and other communications to the Lenders hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless
otherwise agreed by the Administrative Agent and the applicable Lender. Each of the
Administrative Agent, the Borrower or the Parent 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.



(c) Any party hereto may change its address or telecopy number for notices and other
communications hereunder by written notice to the other parties hereto. All notices and other
communications given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt.


 


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SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder or
under any other Loan Document are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or consent to any
departure by the Parent or the Borrower therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative Agent, any Lender or
any Issuing Bank may have had notice or knowledge of such Default at the time.



(b) Neither this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except pursuant to an agreement or agreements in writing
entered into by the Parent, the Borrower and the Required Lenders or by the Parent, the Borrower
and the Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender
directly affected thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or LC Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender directly affected thereby, (iv) change
Section 2.17(b) or (c) in a manner that would alter the pro rata sharing of payments required
thereby, without the written consent of each Lender directly affected thereby, or (v) change any
of the provisions of this Section 9.02(b) or the definition of “Required Lenders” or any other
provision hereof specifying the number or percentage of Lenders required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder, without the prior
written consent of each Lender; provided further that no such agreement shall (i)
amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing
Bank or the Swingline Lender hereunder or (ii) waive, amend or modify Section 2.19, without the
prior written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as
the case may be.



SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i)
all reasonable out-of-pocket expenses incurred by each Lead Agent and its Affiliates, including the
reasonable fees, charges and disbursements of one counsel for the Lead Agents (and, if advisable in
the reasonable judgment of the Lead Agents, of one local counsel in any relevant jurisdiction), in
connection with the syndication of the credit facilities provided for herein, the preparation and
administration of this Agreement and the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by each Issuing
Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all reasonable out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender, including the fees, charges and disbursements
of any counsel for the Administrative Agent, any Issuing Bank or any Lender, in connection with the
enforcement or protection of its rights in connection
with this Agreement and the other Loan Documents, including its rights under this Section
9.03, or in connection with the Loans made or Letters of Credit issued hereunder, including all
such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.


 


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(b) The Parent and the Borrower shall jointly and severally indemnify each Lead Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such
Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee (other than the allocated costs of in-house
counsel), incurred by or asserted against any Indemnitee arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement or any other Loan Document, the
performance by the parties hereto of their respective obligations hereunder or the consummation of
the Transactions or any other transactions contemplated hereby, (ii) any Loan or Letter of Credit
or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Parent or any of its Subsidiaries, or
any Environmental Liability related in any way to the Parent or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory and whether or not any Indemnitee
is a party thereto and whether or not such claim, litigation, investigation or proceeding is
brought by or on behalf of any Loan Party; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or a
material breach of any Loan Document by such Indemnitee.



(c) To the extent that the Parent or the Borrower fails to pay any amount required to be
paid by it to a Lead Agent, an Issuing Bank or the Swingline Lender under paragraph (a) or (b) of
this Section, each Lender severally agrees to pay to such Lead Agent, such Issuing Bank or the
Swingline Lender, as the case may be, such Lender’s Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against such Lead
Agent, such Issuing Bank or the Swingline Lender in its capacity as such.



(d) To the extent permitted by applicable law, each of the Parent and the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any other Loan Document,
the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.



(e) All amounts due under this Section 9.03 shall be payable not later than 30 days after
the receipt of a reasonably detailed invoice therefor.




(f) For the avoidance of doubt, this Section 9.03 shall not apply to any Taxes.



SECTION 9.04. Successors and Assigns. (a) The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby (including any Affiliate of any Issuing Bank that issues any Letter of
Credit), except that (i) neither the Parent nor the Borrower may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Parent or the Borrower without such consent shall be null
and void) and (ii) no Lender may assign or
otherwise transfer its rights or obligations hereunder except in accordance with this Section
9.04. 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
(including any Affiliate of any Issuing Bank that issues any Letter of Credit), Participants (to
the extent provided in paragraph (c) of this Section 9.04) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent, the Issuing Banks and
the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.


 


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




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




(B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment of any Commitment to an assignee that is a Lender
with a Commitment immediately prior to giving effect to such assignment;




(C) the Swingline Lender; and




(D) each Issuing Bank.




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




(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lender’s
Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Borrower and the Administrative Agent otherwise consent,
provided that no such consent of the Borrower shall be required if an Event of
Default has occurred and is continuing;




(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender’s rights and obligations under this Agreement;




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




(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more “Credit
Contacts” to whom all syndicate-level information (which may contain material non-public
information about the Borrower, the Parent and their related parties or their respective
securities) will be made available and who may receive such information in accordance with
the assignee’s compliance procedures and applicable laws, including Federal and state
securities laws.


 


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(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section 9.04, from and after the effective date specified in each Assignment and Assumption the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this
Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this Section 9.04 shall be treated
for purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section 9.04.



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



(v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning
Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee
shall already be a Lender hereunder), the processing and recordation fee referred to in this
Section 9.04(b) and any written consent to such assignment required by this Section 9.04(b), the
Administrative Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register; provided that if either the assigning Lender or the
assignee shall have failed to make any payment required to be made by it pursuant to Section
2.04(c), 2.05(d) or (e), 2.06(b), 2.17(d) or 9.03(c), the Administrative Agent shall have no
obligation to accept such Assignment and Assumption and record the information therein in the
Register unless and until such payment shall have been made in full, together with all accrued
interest thereon. No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.



(vi) Notwithstanding anything to the contrary in Section 2.16 or the definitions of Excluded
Taxes, Indemnified Taxes or Other Taxes, to the extent that an assignment of all or any portion of
a Lender’s Commitment or Loans pursuant to this Section 9.04(b) would, at the time of such
assignment, result in any increased costs under Section 2.16 from those being charged by the
respective assigning Lender prior to such assignment, then the Borrower shall not be obligated to
pay such increased costs.



(c) (i) Any Lender may, without the consent of the Parent, the Borrower, the Administrative
Agent, any Issuing Bank or the Swingline Lender, sell participations to one or more banks or other
entities (each, a “Participant”) in all or a portion of such Lender’s rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans owing
to it); provided that (A) such Lender’s obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Parent, the Borrower, the Administrative Agent, each
Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender’s rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a


 


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 Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that requires the affirmative consent of such Lender. Subject to
paragraph (c)(ii) of this Section 9.04, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 2.14, 2.15 and 2.16 (subject to the requirements and
limitations therein, including the obligation to provide documentation pursuant to Section
2.16(e)) to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 9.04. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a Lender,
provided such Participant agrees to be subject to Section 2.17(c) as though it were a
Lender. Each Lender that sells a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address
of each Participant and the principal amount (and related interest amounts) of each Participant’s
interest in the Loans held by it (the “Participant Register”). The entries in the
Participant Register shall be conclusive, and such Lender shall treat each person whose name is
recorded in the Participant Register as the owner of the participation in question for all
purposes of this Agreement, notwithstanding notice to the contrary.



(d) A Participant shall not be entitled to receive any greater payment under Section 2.14 or
2.16 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to such Participant
is made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is
notified of the participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.16(e) as though it were a Lender.



(e) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including without limitation
any pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



SECTION 9.05. Survival. All covenants, agreements, representations and warranties
made by the Parent or the Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the execution and delivery of
this Agreement and the other Loan Documents and the making of any Loans and issuance of any Letters
of Credit, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice
or knowledge of any Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article VIII
shall survive and remain in full force and effect regardless of the consummation of the
transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the
Letters of Credit and the Commitments or the termination of this Agreement or any provision hereof.


 


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SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto on different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Agreement, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been executed by the
Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement
by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.



SECTION 9.07. Severability. Any provision of any Loan Document held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions of such Loan Document; and the invalidity of a
particular provision in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.



SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by such Lender or Affiliate to or for the credit or the account of the Parent or the
Borrower against any of and all the obligations of the Parent or the Borrower, as applicable, now
or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.



SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process. (a)
This Agreement shall be construed in accordance with and governed by the law of the State of New
York.



(b) Each of the Parent and the Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New
York sitting in New York County and of the United States District Court of the Southern District
of New York, and any appellate court from any thereof, in any action or proceeding arising out of
or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of
the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement or any
other Loan Document shall affect any right that the Administrative Agent, any Issuing Bank or any
Lender may otherwise have to bring any action or proceeding relating to this Agreement or any
other Loan Document against the Parent, the Borrower or their respective properties in the courts
of any jurisdiction.



(c) Each of the Parent and the Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this
Section 9.09. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any such court.


 


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(d) Each party to this Agreement irrevocably consents to service of process in the manner
provided for notices in Section 9.01. Nothing in this Agreement or any other Loan Document will
affect the right of any party hereto or thereto to serve process in any other manner permitted by
law.



SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT
OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.10.



SECTION 9.11. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.



SECTION 9.12. Confidentiality. (a) Each of the Administrative Agent, the Issuing
Banks and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (i) to its and its Affiliates’ directors, officers,
employees and agents, including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (ii) to the extent
requested by any regulatory authority, (iii) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (iv) to any other party to this Agreement,
(v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (vi) subject to an agreement containing provisions substantially the same as those of
this Section 9.12, to (A) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (B) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to the
Parent, the Borrower and its obligations, (vii) with the written consent of the Borrower or the
Parent or (viii) to the extent such Information (A) becomes publicly available other than as a
result of a breach of this Section 9.12 or (B) becomes available to the Administrative Agent, any
Issuing Bank or any Lender on a nonconfidential basis from a source other than the Parent or the
Borrower. For the purposes of this Section 9.12, “Information” means all information
received from the Parent, the Borrower or any Subsidiary relating to the Parent, the Borrower or
their business, other than any such information that is available to the Administrative Agent, any
Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Parent or the
Borrower or such Subsidiary. Any Person required to maintain the confidentiality of Information as
provided in this Section 9.12 shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information. Unless specifically
prohibited by applicable law or court order, each of the Lenders and the Administrative Agent
shall, prior to disclosure thereof, make reasonable efforts to notify the Borrower of any request
for disclosure of any such non-public information by any governmental agency or representative
thereof (other than any such
request in connection with an examination of the financial condition of such Lender by such
governmental agency) or pursuant to legal process.


 


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(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE PARENT, THE
BORROWER AND THEIR RESPECTIVE RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT
HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT
IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND
APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.



(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE PARENT,
THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN
MATERIAL NON-PUBLIC INFORMATION ABOUT THE PARENT, THE BORROWER AND THEIR RELATED PARTIES OR THEIR
RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE PARENT, THE BORROWER AND THE
ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT
WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS
COMPLIANCE PROCEDURES AND APPLICABLE LAW.



SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein to the
contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges
and other amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance
with applicable law, the rate of interest payable in respect of such Loan hereunder, together with
all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent
lawful, the interest and Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be increased (but not
above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the
Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.



SECTION 9.14. USA PATRIOT Act. Each Lender that is subject to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the
“Patriot Act”) hereby notifies the Borrower and the Parent that pursuant to the
requirements of the Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower and the Parent, which information includes the name and address of the
Borrower and the Parent and other information that will allow such Lender to identify the Borrower
and the Parent in accordance with the Patriot Act.


 


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SECTION 9.15. No Fiduciary Duty. The Administrative Agent, each Lead Agent, each
Lender and their Affiliates (collectively, solely for purposes of this Section 9.15, the
“Lenders”), may have economic interests that conflict with those of the Borrower, its stockholders
and/or its affiliates. The Borrower agrees that nothing in the Loan Documents or otherwise will be
deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty
between any Lender, on the one hand,
and the Borrower, its stockholders or its affiliates, on the other. The Loan Parties
acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the
exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions
between the Lenders, on the one hand, and the Borrower, on the other, and (ii) in connection
therewith and with the process leading thereto, (x) no Lender has assumed an advisory or fiduciary
responsibility in favor of the Borrower, its stockholders or its affiliates with respect to the
transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or
the process leading thereto (irrespective of whether any Lender has advised, is currently advising
or will advise the Borrower, its stockholders or its affiliates on other matters) or any other
obligation to the Borrower except the obligations expressly set forth in the Loan Documents and (y)
each Lender is acting solely as principal and not as the agent or fiduciary of the Borrower, its
management, stockholders, creditors or any other Person. The Borrower acknowledges and agrees that
the Borrower has consulted its own legal and financial advisors to the extent it deemed appropriate
and that it is responsible for making its own independent judgment with respect to such
transactions and the process leading thereto. The Borrower agrees that it will not claim that any
Lender has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty
to the Borrower, in connection with such transaction or the process leading thereto.



ARTICLE X




Parent Guaranty




SECTION 10.01. The Parent Guaranty. In order to induce the Lenders to enter into
this Agreement and to extend credit hereunder and, in recognition of the direct benefits to be
received by the Parent from the proceeds of the Loans and the issuance of the Letters of Credit,
the Parent hereby agrees as follows: the Parent hereby unconditionally and irrevocably guarantees,
as primary obligor and not merely as surety the full and prompt payment when due, whether upon
maturity, acceleration or otherwise, of any and all of the Guaranteed Obligations to the Guaranteed
Creditors. If any or all of the Guaranteed Obligations to the Guaranteed Creditors becomes due and
payable hereunder, the Parent unconditionally promises to pay such indebtedness to the Guaranteed
Creditors, or order, on demand, together with any and all expenses which may be incurred by the
Guaranteed Creditors in collecting any of the Guaranteed Obligations. This Parent Guaranty is a
guaranty of payment and not of collection. This Parent Guaranty is a continuing one and all
liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed
to have been created in reliance hereon. If claim is ever made upon any Guaranteed Creditor for
repayment or recovery of any amount or amounts received in payment or on account of any of the
Guaranteed Obligations and any of the aforesaid payees repays all or part of said amount by reason
of (i) any judgment, decree or order of any court or administrative body having jurisdiction over
such payee or any of its property or (ii) any settlement or compromise of any such claim effected
by such payee with any such claimant (including the Borrower), then and in such event the Parent
agrees that any such judgment, decree, order, settlement or compromise shall be binding upon the
Parent, notwithstanding any revocation of this Parent Guaranty or any other instrument evidencing
any liability of the Borrower, and the Parent shall be and remain liable to the aforesaid payees
hereunder for the amount so repaid or recovered to the same extent as if such amount had never
originally been received by any such payee.



SECTION 10.02. Bankruptcy. Additionally, the Parent unconditionally and irrevocably
guarantees the payment of any and all of the Guaranteed Obligations to the Guaranteed Creditors
whether or not due or payable by the Borrower upon the occurrence of any of the events specified in
clause (h) or (i) of Article VII, and unconditionally promises to pay such indebtedness to the
Guaranteed Creditors, or order, on demand.


 


58









 





SECTION 10.03. Nature of Liability. The liability of the Parent hereunder is
exclusive and independent of any guaranty of the Guaranteed Obligations whether executed by the
Parent, any other guarantor or by any other party, and the liability of the Parent hereunder is not
affected or impaired by (a) any direction as to application of payment by the Borrower or by any
other party, or (b) any other continuing or other guaranty, undertaking or maximum liability of a
guarantor or of any other party as to the Guaranteed Obligations, or (c) any payment on or in
reduction of any such other guaranty or undertaking, or (d) any dissolution, termination or
increase, decrease or change in personnel by the Borrower, or (e) any payment made to the
Guaranteed Creditors on the Guaranteed Obligations which any such Guaranteed Creditor repays to the
Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and the Parent waives any right to the deferral or modification of
its obligations hereunder by reason of any such proceeding, or (f) any action or inaction of the
type described in Section 10.05, or (g) the lack of validity or enforceability of this Agreement,
any other Loan Document or any other agreement, instrument or document relating hereto.



SECTION 10.04. Independent Obligation. No invalidity, irregularity or
unenforceability of all or any part of the Guaranteed Obligations shall affect, impair or be a
defense to this Parent Guaranty, and this Parent Guaranty shall be primary, absolute and
unconditional notwithstanding the occurrence of any event or the existence of any other
circumstances which might constitute a legal or equitable discharge of a surety or guarantor except
payment in full in cash of the Guaranteed Obligations of the Parent. The obligations of the Parent
hereunder are independent of the obligations of the Borrower, any other guarantor or any other
Person and a separate action or actions may be brought and prosecuted against the Parent whether or
not action is brought against the Borrower, any other guarantor or any other Person and whether or
not the Borrower, any other guarantor or any other Person be joined in any such action or actions.
The Parent waives, to the full extent permitted by law, the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof. Any payment by the Borrower with
respect to any Guaranteed Obligations or other circumstance which operates to toll any statute of
limitations as to the Borrower shall operate to toll the statute of limitations as to the Parent.



SECTION 10.05. Authorization. The Parent authorizes the Guaranteed Creditors without
notice or demand (except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to:



(i) change the manner, place or terms of payment of, and/or change, increase or extend the
time of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations
(including, without limitation, any increase or decrease in the rate of interest thereon or the
principal amount thereof) or any liability incurred directly or indirectly in respect thereof, and
this Parent Guaranty shall apply to the Guaranteed Obligations as so changed, extended, renewed,
increased or altered;



(ii) exercise or refrain from exercising any rights against the Borrower or others or
otherwise act or refrain from acting;



(iii) release or substitute any one or more endorsers, guarantors, the Borrower or other
obligors;



(iv) settle or compromise any of the Guaranteed Obligations or any liability (including any of
those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate
the payment of all or any part thereof to the payment of any liability (whether due or not) of the
Borrower to their respective creditors other than the Guaranteed Creditors;


 


59









 





(v) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of
the Borrower to the Guaranteed Creditors regardless of what liability or liabilities of the
Borrower remain unpaid;



(vi) consent to or waive any breach of, or any act, omission or default under, this Agreement,
any other Loan Document, or any of the agreements, instruments or documents referred to herein, or
otherwise amend, modify or supplement this Agreement, such other Loan Documents or any such
agreements, instruments or documents;



(vii) act or fail to act in any manner which may deprive the Parent of its right to
subrogation against the Borrower to recover full indemnity for any payments made pursuant to this
Parent Guaranty; and/or



(viii) take any other action which would, under otherwise applicable principles of common law,
give rise to a legal or equitable discharge of the Parent from its liabilities under this Parent
Guaranty.



SECTION 10.06. Reliance. It is not necessary for the Guaranteed Creditors to inquire
into the capacity or powers of the Borrower or the officers, directors, partners or agents acting
or purporting to act on its behalf, and any Guaranteed Obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed hereunder by the Parent.



SECTION 10.07. Subordination. Any of the indebtedness of the Borrower now or
hereafter owing to the Parent is hereby subordinated to the Guaranteed Obligations of the Borrower
owing to the Guaranteed Creditors; and if the Administrative Agent so requests at a time when an
Event of Default exists, all such indebtedness of the Borrower to the Parent shall be collected,
enforced and received by the Parent for the benefit of the Guaranteed Creditors and be paid over to
the Administrative Agent on behalf of the Guaranteed Creditors on account of the Guaranteed
Obligations of the Borrower to the Guaranteed Creditors, but without affecting or impairing in any
manner the liability of the Parent under the other provisions of this Parent Guaranty. Prior to
the transfer by the Parent to any Person of any note or negotiable instrument evidencing any of the
indebtedness of the Borrower to the Parent, the Parent shall mark such note or negotiable
instrument with a legend that the same is subject to this subordination. Without limiting the
generality of the foregoing, the Parent hereby agrees with the Guaranteed Creditors that it will
not exercise any right of subrogation which it may at any time otherwise have as a result of this
Parent Guaranty (whether contractual, under Section 509 of the Bankruptcy Code or otherwise) until
all Guaranteed Obligations have been irrevocably paid in full in cash.




SECTION 10.08. Waiver.



(a) The Parent waives any right (except as shall be required by applicable statute and
cannot be waived) to require any Guaranteed Creditor to (i) proceed against the Borrower, any
other guarantor or any other party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party or (iii) pursue any other remedy in any
Guaranteed Creditor’s power whatsoever. The Parent waives any defense based on or arising out of
any defense of the Borrower, any other guarantor or any other party, other than payment in full in
cash of the Guaranteed Obligations, based on or arising out of the disability of the Borrower, any
other guarantor or any other party, or the unenforceability of the Guaranteed Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of the Borrower
other than payment in full in cash of the Guaranteed Obligations. The Guaranteed Creditors may,
at their election, foreclose on any security held by the Administrative Agent or any other
Guaranteed Creditor by one or more judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable (to the extent such sale is permitted by applicable
law), or exercise any other right or remedy the Guaranteed Creditors may have against the
Borrower or any other party, or any security, without affecting or impairing in any way the
liability of the Parent hereunder except to the extent the Guaranteed Obligations have been paid
in full in cash. The Parent waives any defense arising out of any such election by the Guaranteed
Creditors, even though such election operates to impair or extinguish any right of reimbursement
or subrogation or other right or remedy of the Borrower against any Guaranteed Party or any other
party or any security.


 


60









 





(b) The Parent waives all presentments, demands for performance, protests and notices,
including, without limitation, notices of nonperformance, notices of protest, notices of dishonor,
notices of acceptance of this Parent Guaranty, and notices of the existence, creation,
modification or incurring of new or additional Guaranteed Obligations. The Parent assumes all
responsibility for being and keeping itself informed of the Borrower’s financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations and the nature, scope and extent of the risks which the Parent assumes and incurs
hereunder, and agrees that the Guaranteed Creditors shall have no duty to advise the Parent of
information known to it regarding such circumstances or risks.



(c) Until such time as the Guaranteed Obligations have been paid in full in cash, the Parent
hereby waives all rights of subrogation which it may at any time otherwise have as a result of
this Parent Guaranty (whether contractual, under Section 509 of the Bankruptcy Code, or otherwise)
to the claims of the Guaranteed Creditors against any other guarantor of the Guaranteed
Obligations and all contractual, statutory or common law rights of reimbursement, contribution or
indemnity from the Borrower or any other guarantor which it may at any time otherwise have as a
result of this Parent Guaranty.



SECTION 10.09. Payments. All payments made by the Parent pursuant to this Article X
shall be made in dollars. All payments made by the Parent pursuant to this Article X will be made
without setoff, counterclaim or other defense, and shall be subject to the payment provisions
applicable to the Borrower in Sections 2.15 and 2.16.


 


61









 





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



	 	 	 	 	 
	 	LORILLARD TOBACCO COMPANY, as the Borrower

 	 
	 	By:  	/s/ David H. Taylor
 	 
	 	 	Name:  	David H. Taylor 	 
	 	 	Title:  	Executive Vice President, Finance and

Planning and Chief Financial Officer 	 
	 
	 	LORILLARD, INC., as the Guarantor

 	 
	 	By:  	/s/ David H. Taylor
 	 
	 	 	Name:  	David H. Taylor 	 
	 	 	Title:  	Executive Vice President, Finance and

Planning and Chief Financial Officer 	 
	 



 


 









 





	 	 	 	 	 
	 	JPMORGAN CHASE BANK, N.A., individually and as

Administrative Agent

 	 
	 	By:  	/s/ Tny Yung
 	 
	 	 	Name:  	Tny Yung 	 
	 	 	Title:  	Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	WELLS FARGO BANK, N.A., individually, and as

Syndication Agent

 	 
	 	By:  	/s/ Robert M. Wall, II
 	 
	 	 	Name:  	Robert M. Wall, II 	 
	 	 	Title:  	Senior Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	BARCLAYS BANK PLC

 	 
	 	By:  	/s/ David Barton
 	 
	 	 	Name:  	David Barton 	 
	 	 	Title:  	Director 	 



 


 









 





	 	 	 	 	 



	 	 	 	 	 
	 	THE ROYAL BANK OF SCOTLAND PLC

 	 
	 	By:  	/s/ William McGinty
 	 
	 	 	Name:  	William McGinty 	 
	 	 	Title:  	Senior Vice President 	 
	 



 


 









 





	 	 	 	 	 
	 	GOLDMAN SACHS BANK USA

 	 
	 	By:  	/s/ Alexis Maged
 	 
	 	 	Name:  	Alexis Maged 	 
	 	 	Title:  	Authorized Signatory 	 
	 



 


 









 





EXHIBIT A




ASSIGNMENT AND ASSUMPTION




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



For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to
and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the
Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s
rights and obligations in its capacity as a Lender under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including any letters of credit,
guarantees, and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all
other claims at law or in equity related to the rights and obligations sold and assigned pursuant
to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii)
above being referred to herein collectively as the “Assigned Interest”). Such sale and
assignment is without recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.



	 	 	 
	1. Assignor:

	 	                                        
	 
	 	 
	2. Assignee:

	 	                                        

[and is an Affiliate/Approved Fund of [identify Lender]1]
	 
	 	 
	3. Borrower:

	 	Lorillard Tobacco Company
	 
	 	 
	4. Administrative Agent:

	 	JPMorgan Chase Bank, N.A, as the administrative agent under the Credit Agreement
	 
	 	 
	5. Credit Agreement:

	 	The $185,000,000 Credit Agreement, dated as of March 26, 2010, among Lorillard Tobacco Company,
Lorillard Inc., the Lenders parties thereto, JPMorgan Chase Bank, N.A., as Administrative Agent,
and the other agents parties thereto






 







	 	 	 
	1	 	Select as applicable.




 


 









 









6. Assigned Interest:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Aggregate Amount of	 	 	Amount of	 	 	 	 
	 	 	Commitment/Loans for	 	 	Commitment/Loans	 	 	Percentage Assigned of	 
	Facility Assigned	 	all Lenders	 	 	Assigned	 	 	Commitment/Loans2	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 
	 
	 	$	 	 	 	$	 	 	 	 	%	 






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



The Assignee agrees to deliver to the Administrative Agent a completed Administrative Questionnaire
in which the Assignee designates one or more Credit Contacts to whom all syndicate-level
information (which may contain material non-public information about the Parent, the Borrower and
their Related Parties or their respective securities) will be made available and who may receive
such information in accordance with the Assignee’s compliance procedures and applicable laws,
including Federal and state securities laws.



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



	 	 	 	 	 
	 	ASSIGNOR

[NAME OF ASSIGNOR]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 
	 	ASSIGNEE

[NAME OF ASSIGNEE]

 	 
	 	By:  	 	 
	 	 	Title: 	 
	 	 	 	 
	 



 





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




 


2









 









	 	 	 	 	 
	[Consented to and]3 Accepted:

[NAME OF ADMINISTRATIVE AGENT], as	 	 
	Administrative Agent	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Title:
	 	 
	 
	 	 	 	 
	[Consented to:]4

[NAME OF RELEVANT PARTY]	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 





 







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

	 
	4	 	To be added only if the consent of the Borrower and/or
other parties (e.g., the Swingline Lender, each Issuing Bank, etc.) is
required by the terms of Section 9.04 of the Credit Agreement.




 


3









 









ANNEX 1




LORILLARD TOBACCO COMPANY CREDIT AGREEMENT




STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION





1. Representations and Warranties.



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



1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement
that are required to be satisfied by it in order to acquire the Assigned Interest and become a
Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together
with copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as
applicable, and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest on the basis of which it has made such analysis and decision independently and
without reliance on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached to the Assignment and Assumption is any documentation required to be delivered by
it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the
Assignor or any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be performed by it as a
Lender.



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



3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.