Exhibit 10.9


 


 $65,000,000 CREDIT FACILITY


 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


Dated as of March 31, 2010


 


by and among


 


BANCTEC, INC.,


 


as the Borrower,


 


THE OTHER PERSONS PARTY HERETO THAT ARE


DESIGNATED AS CREDIT PARTIES


 


GENERAL ELECTRIC CAPITAL CORPORATION

for itself, as a Lender, as L/C Issuer, Swingline Lender and as the Agent for
all Lenders,


 


THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO


 


as Lenders,


 


and


 


GE CAPITAL MARKETS, INC.,


as Sole Lead Arranger and Bookrunner


 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I. THE CREDITS

  	
   

  	
  6

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Amounts and Terms of Commitments

  	
   

  	
  6

  
	
  1.2

  	
  Notes

  	
   

  	
  13

  
	
  1.3

  	
  Interest

  	
   

  	
  13

  
	
  1.4

  	
  Loan Accounts

  	
   

  	
  14

  
	
  1.5

  	
  Procedure for Revolving Credit Borrowing

  	
   

  	
  15

  
	
  1.6

  	
  Conversion and Continuation Elections

  	
   

  	
  16

  
	
  1.7

  	
  Optional Prepayments

  	
   

  	
  17

  
	
  1.8

  	
  Mandatory Prepayments of Loans

  	
   

  	
  18

  
	
  1.9

  	
  Fees

  	
   

  	
  19

  
	
  1.10

  	
  Payments by the Borrower

  	
   

  	
  21

  
	
  1.11

  	
  Payments by the Lenders to the Agent; Settlement

  	
   

  	
  22

  
	
  1.12

  	
  Increases in Revolving Loan Commitment

  	
   

  	
  24

  
	
  1.13

  	
  Conversion to Dollars and Foreign Currency

  	
   

  	
  25

  
	
  1.14

  	
  Judgment Currency; Contractual Currency

  	
   

  	
  26

  
	
  1.15

  	
  Currency of Account

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  ARTICLE II. CONDITIONS PRECEDENT

  	
   

  	
  27

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Conditions of Loans

  	
   

  	
  27

  
	
  2.2

  	
  Conditions to All Borrowings

  	
   

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE III. REPRESENTATIONS AND
  WARRANTIES

  	
   

  	
  29

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Corporate Existence and Power

  	
   

  	
  29

  
	
  3.2

  	
  Corporate Authorization; No Contravention

  	
   

  	
  29

  
	
  3.3

  	
  Governmental Authorization

  	
   

  	
  30

  
	
  3.4

  	
  Binding Effect

  	
   

  	
  30

  
	
  3.5

  	
  Litigation

  	
   

  	
  30

  
	
  3.6

  	
  No Default

  	
   

  	
  31

  
	
  3.7

  	
  ERISA Compliance

  	
   

  	
  31

  
	
  3.8

  	
  Use of Proceeds; Margin Regulations

  	
   

  	
  31

  
	
  3.9

  	
  Title to Properties

  	
   

  	
  31

  
	
  3.10

  	
  Taxes

  	
   

  	
  32

  
	
  3.11

  	
  Financial Condition

  	
   

  	
  32

  
	
  3.12

  	
  Environmental Matters

  	
   

  	
  33

  
	
  3.13

  	
  Regulated Entities

  	
   

  	
  34

  
	
  3.14

  	
  Solvency

  	
   

  	
  34

  
	
  3.15

  	
  Labor Relations

  	
   

  	
  34

  
	
  3.16

  	
  Intellectual Property

  	
   

  	
  34

  
	
  3.17

  	
  Subsidiaries

  	
   

  	
  35

  
	
  3.18

  	
  Brokers’ Fees; Transaction Fees

  	
   

  	
  35

  
	
  3.19

  	
  Insurance

  	
   

  	
  35

  



 


i

















 


	
  3.20

  	
  Full Disclosure

  	
   

  	
  35

  
	
  3.21

  	
  Foreign Assets Control Regulations and Anti-Money
  Laundering

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV. AFFIRMATIVE COVENANTS

  	
   

  	
  36

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Financial Statements

  	
   

  	
  36

  
	
  4.2

  	
  Certificates; Other Information

  	
   

  	
  37

  
	
  4.3

  	
  Notices

  	
   

  	
  38

  
	
  4.4

  	
  Preservation of Corporate Existence, Etc.

  	
   

  	
  40

  
	
  4.5

  	
  Maintenance of Property

  	
   

  	
  40

  
	
  4.6

  	
  Insurance

  	
   

  	
  41

  
	
  4.7

  	
  Payment of Obligations

  	
   

  	
  42

  
	
  4.8

  	
  Compliance with Laws

  	
   

  	
  42

  
	
  4.9

  	
  Inspection of Property and Books and Records

  	
   

  	
  43

  
	
  4.10

  	
  Use of Proceeds

  	
   

  	
  43

  
	
  4.11

  	
  Cash Management Systems

  	
   

  	
  43

  
	
  4.12

  	
  Landlord Agreements

  	
   

  	
  44

  
	
  4.13

  	
  Further Assurances; Security Interests

  	
   

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE V. NEGATIVE COVENANTS

  	
   

  	
  45

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Limitation on Liens

  	
   

  	
  45

  
	
  5.2

  	
  Disposition of Assets

  	
   

  	
  48

  
	
  5.3

  	
  Consolidations and Mergers

  	
   

  	
  49

  
	
  5.4

  	
  Loans and Investments

  	
   

  	
  50

  
	
  5.5

  	
  Limitation on Indebtedness

  	
   

  	
  51

  
	
  5.6

  	
  Transactions with Affiliates

  	
   

  	
  52

  
	
  5.7

  	
  Management Fees and Compensation

  	
   

  	
  53

  
	
  5.8

  	
  Use of Proceeds

  	
   

  	
  53

  
	
  5.9

  	
  Contingent Obligations

  	
   

  	
  53

  
	
  5.10

  	
  Compliance with ERISA

  	
   

  	
  54

  
	
  5.11

  	
  Restricted Payments

  	
   

  	
  54

  
	
  5.12

  	
  Change in Business

  	
   

  	
  55

  
	
  5.13

  	
  Change in Structure

  	
   

  	
  56

  
	
  5.14

  	
  Accounting Changes

  	
   

  	
  56

  
	
  5.15

  	
  Amendments to Subordinated Indebtedness

  	
   

  	
  56

  
	
  5.16

  	
  No Negative Pledges

  	
   

  	
  56

  
	
  5.17

  	
  OFAC

  	
   

  	
  57

  
	
  5.18

  	
  Press Release and Related Matters

  	
   

  	
  57

  
	
  5.19

  	
  Sale-Leasebacks

  	
   

  	
  57

  
	
  5.20

  	
  Hazardous Materials

  	
   

  	
  57

  
	
  5.21

  	
  Operating Leases

  	
   

  	
  57

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI. FINANCIAL COVENANTS

  	
   

  	
  58

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Capital Expenditures

  	
   

  	
  58

  
	
  6.2

  	
  Senior
  Leverage Ratio

  	
   

  	
  58

  



 


ii

















 


	
  6.3

  	
  Total Leverage Ratio

  	
   

  	
  59

  
	
  6.4

  	
  Fixed Charge Coverage Ratio

  	
   

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII. EVENTS OF DEFAULT

  	
   

  	
  59

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Event of Default

  	
   

  	
  59

  
	
  7.2

  	
  Remedies

  	
   

  	
  62

  
	
  7.3

  	
  Rights Not Exclusive

  	
   

  	
  63

  
	
  7.4

  	
  Cash Collateral for Letters of Credit

  	
   

  	
  63

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII. THE AGENT

  	
   

  	
  63

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Appointment and Duties

  	
   

  	
  63

  
	
  8.2

  	
  Binding Effect

  	
   

  	
  65

  
	
  8.3

  	
  Use of Discretion

  	
   

  	
  65

  
	
  8.4

  	
  Delegation of Rights and Duties

  	
   

  	
  65

  
	
  8.5

  	
  Reliance and Liability

  	
   

  	
  65

  
	
  8.6

  	
  Agent Individually

  	
   

  	
  67

  
	
  8.7

  	
  Lender Credit Decision

  	
   

  	
  67

  
	
  8.8

  	
  Expenses; Indemnities

  	
   

  	
  67

  
	
  8.9

  	
  Resignation of Agent or L/C Issuer

  	
   

  	
  68

  
	
  8.10

  	
  Release of Collateral or Guarantors

  	
   

  	
  69

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX. MISCELLANEOUS

  	
   

  	
  69

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Amendments and Waivers

  	
   

  	
  69

  
	
  9.2

  	
  Notices

  	
   

  	
  71

  
	
  9.3

  	
  Electronic Transmissions

  	
   

  	
  72

  
	
  9.4

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  73

  
	
  9.5

  	
  Costs and Expenses

  	
   

  	
  73

  
	
  9.6

  	
  Indemnity

  	
   

  	
  74

  
	
  9.7

  	
  Marshaling; Payments Set Aside

  	
   

  	
  75

  
	
  9.8

  	
  Successors and Assigns

  	
   

  	
  75

  
	
  9.9

  	
  Assignments and Participations; Binding Effect

  	
   

  	
  75

  
	
  9.10

  	
  Confidentiality

  	
   

  	
  78

  
	
  9.11

  	
  Set-off; Sharing of Payments

  	
   

  	
  78

  
	
  9.12

  	
  Counterparts

  	
   

  	
  80

  
	
  9.13

  	
  Severability; Facsimile Signature

  	
   

  	
  80

  
	
  9.14

  	
  Captions

  	
   

  	
  80

  
	
  9.15

  	
  Independence of Provisions

  	
   

  	
  80

  
	
  9.16

  	
  Interpretation

  	
   

  	
  80

  
	
  9.17

  	
  No Third Parties Benefited

  	
   

  	
  80

  
	
  9.18

  	
  Governing Law and Jurisdiction

  	
   

  	
  80

  
	
  9.19

  	
  Waiver of Jury Trial

  	
   

  	
  81

  
	
  9.20

  	
  Entire Agreement; Release; Survival

  	
   

  	
  81

  
	
  9.21

  	
  Patriot Act

  	
   

  	
  82

  
	
  9.22

  	
  Replacement of Lender

  	
   

  	
  82

  



 


iii

















 


	
  9.23

  	
  Joint and Several

  	
   

  	
  83

  
	
  9.24

  	
  Lender-Debtor Relationship

  	
   

  	
  83

  
	
   

  	
   

  	
   

  
	
  ARTICLE X. TAXES, YIELD PROTECTION
  AND ILLEGALITY

  	
   

  	
  83

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Taxes

  	
   

  	
  83

  
	
  10.2

  	
  Illegality

  	
   

  	
  86

  
	
  10.3

  	
  Increased Costs and Reduction of Return

  	
   

  	
  87

  
	
  10.4

  	
  Funding Losses

  	
   

  	
  88

  
	
  10.5

  	
  Inability to Determine Rates

  	
   

  	
  89

  
	
  10.6

  	
  Reserves on LIBOR Rate Loans

  	
   

  	
  89

  
	
  10.7

  	
  Certificates of Lenders

  	
   

  	
  89

  
	
  10.8

  	
  Survival

  	
   

  	
  89

  
	
  10.9

  	
  Restatement

  	
   

  	
  89

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI. DEFINITIONS

  	
   

  	
  91

  
	
   

  	
   

  	
   

  
	
  11.1

  	
  Defined Terms

  	
   

  	
  91

  
	
  11.2

  	
  Other Interpretive Provisions

  	
   

  	
  114

  
	
  11.3

  	
  Accounting
  Terms and Principles

  	
   

  	
  115

  



 


iv

















 


SCHEDULES


 


	
  Schedule
  1.1(b)

  	
  Revolving
  Loan Commitments

  
	
  Schedule
  3.2

  	
  Capitalization

  
	
  Schedule
  3.5

  	
  Litigation

  
	
  Schedule
  3.7

  	
  ERISA

  
	
  Schedule
  3.12

  	
  Environmental

  
	
  Schedule
  3.15

  	
  Labor
  Relations

  
	
  Schedule
  3.16

  	
  Intellectual
  Property

  
	
  Schedule
  3.18

  	
  Brokers’
  and Transaction Fees

  
	
  Schedule
  5.1

  	
  Liens

  
	
  Schedule
  5.4

  	
  Investments

  
	
  Schedule
  5.5

  	
  Indebtedness

  
	
  Schedule
  5.9

  	
  Contingent
  Obligations

  



 


EXHIBITS


 


	
  Exhibit 1.1(c)

  	
  Form of
  L/C Request

  
	
  Exhibit 1.1(d)

  	
  Form of
  Swing Loan Request

  
	
  Exhibit 1.6

  	
  Form of
  Notice of Conversion/Continuation

  
	
  Exhibit 2.1

  	
  Closing
  Checklist

  
	
  Exhibit 4.2(b)

  	
  Compliance
  Certificate

  
	
  Exhibit 11.1(a)

  	
  Form of
  Assignment

  
	
  Exhibit 11.1(b)

  	
  Form of
  Availability Certificate

  
	
  Exhibit 11.1(c)

  	
  Notice
  of Borrowing

  
	
  Exhibit 11.1(d)

  	
  Revolving
  Loan Note

  
	
  Exhibit 11.1(e)

  	
  Swingline
  Note

  



 


v














 


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


This SECOND AMENDED AND
RESTATED CREDIT AGREEMENT (including all exhibits and schedules hereto, as the
same may be amended, restated, amended and restated, modified and/or
supplemented from time to time, this “Agreement”) is entered into as of March 31,
2010, by and among BancTec, Inc., a Delaware corporation (the “Borrower”),
the other Persons party hereto that are designated as a “Credit Party”,
General Electric Capital Corporation, a Delaware corporation (in its individual
capacity, “GE Capital”), as Agent for the several financial institutions
from time to time party to this Agreement (collectively, the “Lenders”
and individually each a “Lender”) and for itself as a Lender (including
as Swingline Lender), and such Lenders.


 


W I T N E S S E T H:


 


WHEREAS, Borrower and
Heller Financial, Inc., as a “Lender” and as “Agent” entered into that
certain Loan and Security Agreement, dated as of May 30, 2001, (as
amended, the “Original Credit Agreement”);


 


WHEREAS, Heller Financial, Inc.
assigned to GE Capital all right, title and interest of Heller Financial, Inc.
in the Original Credit Agreement and GE Capital was appointed as “Successor
Agent” under the Original Credit Agreement;


 


WHEREAS, Borrower, each
other Credit Party party thereto, GE Capital, as a “Lender” and as “Agent,” and
the other Lenders party thereto entered into that certain Amended and Restated
Credit Agreement dated as of February 7, 2008 (as amended and in effect on
the date hereof immediately prior to giving effect to this Agreement, the “Existing
Credit Agreement”)


 


WHEREAS, the parties
hereto desire to enter into this Agreement to, among other things, (i) amend
and restate the credit facility provided for in the Existing Credit Agreement
on the terms and subject to the conditions contained herein and (ii) accordingly
amend and restate in its entirety the Existing Credit Agreement, without
constituting a novation of the obligations, liabilities and indebtedness of the
Borrower thereunder, all on the terms and subject to the conditions contained
herein;


 


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


 


ARTICLE I.

THE CREDITS


 


1.1           Amounts and Terms of
Commitments.


 


(a)           Intentionally
Omitted


 


(b)           The
Revolving Credit.  Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties of the Credit
Parties contained herein, each Lender severally and not jointly agrees to make
Loans to the Borrower (each such
Loan, a “Revolving Loan”) from time to time on any Business Day during
the


 

















 


period from
the Second Restatement Closing Date to the Revolving Termination Date, in an
aggregate amount not to exceed at any time outstanding the amount set forth
opposite such Lender’s name in Schedule 1.1(b) under the heading “Revolving
Loan Commitment” (such amount as the same may be increased pursuant to Section 1.12
or reduced from time to time pursuant to subsection 1.8(c) or reduced or increased  from time to time as a result of one or more
assignments pursuant to Section 9.9, being referred to herein as
such Lender’s “Revolving Loan Commitment”); provided, however, that,
after giving effect to any Borrowing of Revolving Loans, the aggregate
principal amount of all outstanding Revolving Loans shall not exceed the
Maximum Revolving Loan Balance.  Subject
to the other terms and conditions hereof, amounts borrowed under this
subsection 1.1(b) may be repaid and reborrowed from time to time.  The “Maximum Revolving Loan Balance”
from time to time will be the lesser of:


 


(i)            the
product obtained by multiplying (A) EBITDA for the then most recently
ended twelve month period for which financial statements have been delivered to
Agent, times (B) the Leverage Multiple, or


 


(ii)           the
Aggregate Revolving Loan Commitment then in effect;


 


Immediately prior to the
effectiveness of this Agreement, the outstanding principal balance of “Revolving
Loans” under the Existing Credit Agreement is $36,958,068.64.  Such “Revolving
Loans” under the Existing Credit Agreement shall be deemed to be, and hereby
are converted into, on the Second Restatement Closing Date, outstanding
Revolving Loans hereunder.  Each Lender
with a Revolving Loan Commitment hereunder shall make such payments among
themselves and/or shall fund Revolving Loans requested by the Borrower on the
date hereof as are necessary to ensure that such converted Revolving Loans and
all Revolving Loans requested by the Borrower on the Second Restatement Closing
Date are funded by the Lenders holding Revolving Loan Commitments hereunder pro
rata based on their respective shares of the Aggregate Revolving Loan
Commitment.


 


Notwithstanding anything
contained in this Agreement to the contrary, the Dollar Equivalent of Revolving
Loans advanced in a Foreign Currency shall not at any time exceed the Foreign
Subfacility Limit and the Lenders shall have no obligation to advance Revolving
Loans in a Foreign Currency in an amount which would cause the Dollar
Equivalent of all Revolving Loans advanced in a Foreign Currency to exceed the
Foreign Subfacility Limit.


 


If at any time the then
outstanding principal balance of Revolving Loans exceeds the Maximum Revolving
Loan Balance, then the Borrower shall prepay on the earlier of (i) the
date upon which the Borrower becomes aware of such excess or (ii) the
first Business Day after Borrower receives notice from the Agent of such
excess, the outstanding Revolving Loans in an amount sufficient to eliminate
such excess.


 


7

















 


If at any time the Dollar
Equivalent  of Revolving Loans advanced in a
Foreign Currency exceeds the Foreign Subfacility Limit, then the Borrower shall
prepay on the earlier of (i) the third Business Day after the date upon
which the Borrower becomes aware of such excess or (ii) the third Business
Day after Borrower receives notice from the Agent of such excess, the
outstanding Revolving Loans in an amount sufficient to eliminate such excess.


 


A Revolving Loan may not be
drawn in a Foreign Currency if Agent determines in its sole discretion,
reasonably exercised, at any time prior to 12:00 p.m. (New York time) on
the date of such proposed Revolving Loan that by reason of change in any
Foreign Currency availability, unusual instability in any Foreign Currency
exchange rates or exchange controls, or any other reason affecting the market
in such Foreign Currency generally, it is, or will be, impracticable for such
Revolving Loan to be made in such Foreign Currency.  In such event, the proposed Revolving Loan
shall be made in Dollars.


 


(c)           Letters
of Credit.


 


(i)            Commitment
and Conditions.  On the terms and subject to the conditions
contained herein, each L/C Issuer agrees to Issue, at the request of the
Borrower, in accordance with such L/C Issuer’s usual and customary business
practices, and for the account of the Borrower (or, as long as the Borrower
remains responsible for the payment in full of all amounts drawn thereunder and
related fees, costs and expenses, for the account of any Subsidiary of
Borrower), Letters of Credit (denominated in Dollars)  from
time to time on any Business Day during the period from the Second Restatement
Closing Date through the earlier of the Revolving Termination Date and 5 days
prior to the date specified in clause (a) of the definition of Revolving
Termination Date; provided, however, that such L/C Issuer shall not be under
any obligation to Issue any Letter of Credit upon the occurrence of any of the
following, after giving effect to such Issuance:


 


(A)  (i) the aggregate outstanding principal balance of
Revolving Loans would exceed the Maximum Revolving Loan Balance or (ii) the
Letter of Credit Obligations for all Letters of Credit would exceed $10,000,000
(the “L/C Sublimit”);


 


(B)  the expiration date of such Letter of Credit (i) is not
a Business Day, (ii) is more than one year after the date of issuance
thereof or (iii) is later than 5 days prior to the date specified in
clause (a) of the definition of Revolving Termination Date; provided,
however, that any Letter of Credit with a term not exceeding one year may
provide for its renewal for additional periods not exceeding one year as long
as (x) each of the Borrower and such L/C Issuer have the option to prevent
such renewal before the expiration of such term or any such period and (y) neither
such L/C Issuer nor the Borrower shall permit any such renewal to


 


8

















 


extend such expiration date beyond the date
set forth in clause (iii) above; or


 


(C)  (i) any fee due in connection with, and on or prior to,
such Issuance has not been paid, (ii) such Letter of Credit is requested
to be issued in a form that is not acceptable to such L/C Issuer or (iii) such
L/C Issuer shall not have received, each in form and substance reasonably
acceptable to it and duly executed by the Borrower (and, if such Letter of
Credit is issued for the account of any Subsidiary of Borrower, such Person),
the documents that such L/C Issuer generally uses in the ordinary course of its
business for the Issuance of letters of credit of the type of such Letter of
Credit (collectively, the “L/C Reimbursement Agreement”).


 


For each such Issuance, the
applicable L/C Issuer may, but shall not be required to, determine that, or
take notice whether, the conditions precedent set forth in Section 2.2
have been satisfied or waived in connection with the Issuance of any Letter of
Credit; provided, however, that no Letter of Credit shall be Issued during the
period starting on the first Business Day after the receipt by such L/C Issuer
of notice from the Agent or the Required Lenders that any condition precedent
contained in Section 2.2 is not satisfied and ending on the date
all such conditions are satisfied or duly waived.


 


(ii)           Notice
of Issuance.  The Borrower shall give the relevant L/C
Issuer and the Agent a notice of any requested Issuance of any Letter of
Credit, which shall be effective only if received by such L/C Issuer and the
Agent not later than 1:00 p.m. (New York time) on the third Business Day
prior to the date of such requested Issuance. 
Such notice may be made in a writing substantially the form of Exhibit 1.1(c) duly
completed or in a writing in any other form acceptable to such L/C Issuer (an “L/C
Request”) or by telephone if confirmed promptly, but in any event within
one Business Day and prior to such Issuance, with such an L/C Request.


 


(iii)          Reporting
Obligations of L/C Issuers.  Each L/C Issuer agrees to provide the Agent
(which, after receipt, the Agent shall provide to each Revolving  Lender), in form and substance satisfactory
to the Agent, each of the following on the following dates: (A) (i) on
or prior to any Issuance of any Letter of Credit by such L/C Issuer, (ii) immediately
after any drawing under any such Letter of Credit or (iii) immediately
after any payment (or failure to pay when due) by the Borrower of any related
L/C Reimbursement Obligation, notice thereof, which shall contain a reasonably
detailed description of such Issuance, drawing or payment; (B) upon the
request of the Agent (or any Lender through the Agent), copies of any Letter of
Credit Issued by such L/C Issuer and any related L/C Reimbursement Agreement
and such other documents and information as may reasonably be requested by the
Agent; and (C) on the first Business Day of each calendar week, a schedule
of the Letters of Credit Issued by such L/C Issuer, in form and substance
reasonably satisfactory to the Agent, setting forth the Letter of


 


9

















 


Credit Obligations for such Letters of Credit outstanding on
the last Business Day of the previous calendar week.


 


(iv)          Acquisition
of Participations.  Upon any Issuance of a Letter of Credit in
accordance with the terms of this Agreement resulting in any increase in the
Letter of Credit Obligations, each Lender shall be deemed to have acquired,
without recourse or warranty, an undivided interest and participation in such
Letter of Credit and the related Letter of Credit Obligations in an amount
equal to its Commitment Percentage of such Letter of Credit Obligations.


 


(v)           Reimbursement
Obligations of the Borrower.  The Borrower agrees to pay to the L/C Issuer
of any Letter of Credit each L/C Reimbursement Obligation owing with respect to
such Letter of Credit no later than the first Business Day after the Borrower
receives notice from such L/C Issuer that payment has been made under such
Letter of Credit or that such L/C Reimbursement Obligation is otherwise due
(the “L/C Reimbursement Date”) with interest thereon computed as set
forth in clause (A) below.  In the
event that any L/C Issuer incurs any L/C Reimbursement Obligation not repaid by
the Borrower as provided in this clause (v) (or any such payment by the
Borrower is rescinded or set aside for any reason), such L/C Issuer shall
promptly notify the Agent of such failure (and, upon receipt of such notice,
the Agent shall forward a copy to each Lender) and, irrespective of whether
such notice is given, such L/C Reimbursement Obligation shall be payable on demand
by the Borrower with interest thereon computed (A) from the date on which
such L/C Reimbursement Obligation arose to the L/C Reimbursement Date, at the
interest rate applicable during such period to Revolving Loans that are Base
Rate Loans and (B) thereafter until payment in full, at the interest rate
applicable during such period to past due Revolving Loans that are Base Rate
Loans.


 


(vi)          Reimbursement
Obligations of the Revolving Credit Lenders.  Upon receipt of the notice described in
clause (v) above from the Agent, each Lender shall pay to the Agent for
the account of such L/C Issuer its Commitment Percentage of such L/C
Reimbursement Obligation.  By making such
payment (other than during the continuation of an Event of Default under
subsection 7.1(f) or 7.1(g)), such Lender shall be deemed to have made a
Revolving Loan to the Borrower, which, upon receipt thereof by such L/C Issuer,
the Borrower shall be deemed to have used in whole to repay such L/C
Reimbursement Obligation.  Any such
payment that is not deemed a Revolving Loan shall be deemed a funding by such
Lender of its participation in the applicable Letter of Credit and the related
L/C Obligations.  Such participation
shall not otherwise be required to be funded. 
Upon receipt by any L/C Issuer of any payment from any Lender pursuant
to this clause (vi) with respect to any portion of any L/C Reimbursement
Obligation, such L/C Issuer shall promptly pay over to such Lender all payments
received by such L/C Issuer after such payment by such Lender with respect to
such portion.


 


(vii)         Obligations
Absolute. 
The obligations of the Borrower and the Lenders pursuant to clauses
(iv), (v) and (vi) above shall be absolute, unconditional and
irrevocable and performed strictly in accordance with the terms of this
Agreement irrespective of


 


10

















 


(A) (i) the invalidity or unenforceability of any
term or provision in any Letter of Credit, any document transferring or
purporting to transfer a Letter of Credit, any Loan Document (including the
sufficiency of any such instrument), or any modification to any provision of
any of the foregoing, (ii) any document presented under a Letter of Credit
being forged, fraudulent, invalid, insufficient or inaccurate in any respect or
failing to comply with the terms of such Letter of Credit or (iii) any
loss or delay, including in the transmission of any document, (B) the
existence of any setoff, claim, abatement, recoupment, defense or other right
that any Person (including any Credit Party) may have against the beneficiary
of any Letter of Credit or any other Person, whether in connection with any
Loan Document or any other Contractual Obligation or transaction, or the
existence of any other withholding, abatement or reduction, (C) in the
case of the obligations of any Lender, (i) the failure of any condition
precedent set forth in Section 2.2 to be satisfied (each of which
conditions precedent the Lenders hereby irrevocably waive) or (ii) any
adverse change in the condition (financial or otherwise) of any Credit Party
and (D) any other act or omission to act or delay of any kind of Agent,
any Lender or any other Person or any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this subsection 1.1(c)(vii), constitute a legal or equitable
discharge of any obligation of the Borrower or any Lender hereunder; provided,
in each case, that payment by the L/C Issuer under the applicable Letter of
Credit shall not have constituted gross negligence or willful misconduct (as
determined by a court of competent jurisdiction) of the L/C Issuer under the
circumstances in question.


 


(d)           Swing
Loans. 
(i)  Availability. 
Subject to the terms and conditions of 
this Agreement and in reliance upon the representations and warranties
of the Credit Parties contained herein, the Swingline Lender may, in its good
faith credit judgment, make Loans (each a “Swing Loan”) available to the
Borrower under the Revolving Loan Commitments from time to time on any Business
Day during the period from the Second Restatement Closing Date until the
Revolving Termination Date in an aggregate principal amount at any time
outstanding not to exceed its Swingline Commitment; provided, however, that the
Swingline Lender may not make any Swing Loan (x) to the extent that after
giving effect to such Swing Loan, the aggregate principal amount of all
Revolving Loans would exceed the Maximum Revolving Loan Balance and (y) during
the period commencing on the first Business Day after it receives notice from
the Agent or the Required Lenders that one or more of the conditions precedent
contained in Section 2.2 are not satisfied and ending when such
conditions are satisfied or duly waived. 
In connection with the making of any Swing Loan, the Swingline Lender
may but shall not be required to determine that, or take notice whether, the
conditions precedent set forth in Section 2.2 have been satisfied
or waived.  Each Swing Loan shall be a
Base Rate Loan denominated in Dollars and must be repaid in full on the
earliest of (x) the funding date of any Borrowing of Revolving Loans and (y) the
Revolving Termination Date.  Within the
limits set forth in the first sentence of this clause (i), amounts of Swing
Loans repaid may be reborrowed under this clause (i).


 


11

















 


(ii)           Borrowing Procedures.  In order to request a Swing Loan, the
Borrower shall give to the Agent a notice to be received not later than 1:00 p.m.
(New York time) on the day of the proposed Borrowing, which may be made in a
writing substantially in the form of Exhibit 1.1(d) duly completed (a
“Swingline Request”) or by telephone if confirmed promptly but, in any
event, prior to such Borrowing, with such a Swingline Request.  In addition, if any Notice of Borrowing of
Revolving Loans requests a Borrowing of Base Rate Loans (other than a Borrowing
to refinance outstanding Swing Loans), the Swingline Lender may,
notwithstanding anything else to the contrary herein, make a Swing Loan
available to the Borrower in an aggregate amount not to exceed such proposed
Borrowing, and the aggregate amount of the corresponding proposed Borrowing
shall be reduced accordingly by the principal amount of such Swing Loan.  The Agent shall promptly notify the Swingline
Lender of the details of the requested Swing Loan.  Upon receipt of such notice and subject to
the terms of this Agreement, the Swingline Lender may make a Swing Loan
available to the Borrower by making the proceeds thereof available to the Agent
and, in turn, the Agent shall make such proceeds available to the Borrower on
the date set forth in the relevant Swingline Request or Notice of Borrowing.


 


(iii)          Refinancing Swing Loans.  The Swingline Lender, at any time and from time
to time no less frequently than weekly, may forward a demand to the Agent
(which the Agent shall, upon receipt, forward to each Lender) that each Lender
pay to the Agent, for the account of the Swingline Lender, such Lender’s
Commitment Percentage of all or a portion of the outstanding Swing Loans.  Each Lender shall pay such Commitment
Percentage to the Agent for the account of the Swingline Lender if the notice
or demand therefor was received by such Lender prior to 12:00 p.m. (New
York time) on any Business Day, on such Business Day and otherwise, on the
Business Day following such receipt. 
Payments received by the Administrative Agent after 12:00 p.m. (New
York time) shall be deemed to be received on the next Business Day.  Upon receipt by the Agent of such payment
(other than during the continuation of any Event of Default under subsection
7.1(f) or 7.1(g)), such Lender shall be deemed to have made a Revolving
Loan to the Borrower, which, upon receipt of such payment by the Swingline
Lender from the Agent, the Borrower shall be deemed to have used in whole to
refinance such Swing Loan.  In addition,
regardless of whether any such demand is made, upon the occurrence of any Event
of Default under subsection 7.1(f) or 7.1(g), each Lender shall be deemed
to have acquired, without recourse or warranty, an undivided interest and
participation in each Swing Loan in an amount equal to such Lender’s Commitment
Percentage of such Swing Loan.  If any
payment made by any Lender as a result of any such demand is not deemed a
Revolving Loan, such payment shall be deemed a funding by such Lender of such
participation.  Such participation shall
not be otherwise required to be funded. 
Upon receipt by the Swingline Lender of any payment from any Lender
pursuant to this clause (iii) with respect to any portion of any Swing
Loan, the Swingline Lender shall promptly pay over to such Lender all payments
of principal (to the extent received after such payment by such Lender) and
interest (to the extent accrued with respect to periods after such payment)
received by the Swingline Lender with respect to such portion.


 


12

















 


(iv)          Obligation to Fund Absolute.  Each Lender’s obligations pursuant to clause (iii) above
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, including (A) the existence of any setoff,
claim, abatement, recoupment, defense or other right that such Lender, any
Affiliate thereof or any other Person may have against the Swingline Lender,
the Agent, any other Lender or L/C Issuer or any other Person, (B) the
failure of any condition precedent set forth in Section 2.2 to be
satisfied or the failure of the Borrower to deliver a Notice of Borrowing (each
of which requirements the Lenders hereby irrevocably waive) and (C) any
adverse change in the condition (financial or otherwise) of any Credit Party.


 


1.2           Notes.


 


(a)           The
Revolving Loans made by each Lender shall be evidenced by this Agreement and,
if requested by such Lender, a Revolving Note payable to the order of such
Lender in an amount equal to such Lender’s Revolving Loan Commitment.


 


(b)           Swing
Loans made by the Swingline Lender shall be evidenced by this Agreement and, if
requested by such Lender, a Swingline Note in an amount equal to the Swingline
Commitment.


 


(c)           All
promissory notes issued under the Existing Credit Agreement shall be deemed
replaced as of the Second Restatement Closing Date with the promissory notes
issued pursuant to this Agreement (without effecting a novation with respect to
any “Obligations” as defined in the Existing Credit Agreement).


 


1.3           Interest.


 


(a)           Subject
to subsections 1.3(c) and 1.3(d), (i) each Loan denominated in
Dollars shall bear interest on the outstanding principal amount thereof from
the date when made at a rate per annum equal to Dollar LIBOR or the Dollar Base
Rate, as the case may be, plus the Applicable Margin, (ii) each
Loan denominated in Sterling shall bear interest on the outstanding principal
amount thereof  from the date when made at a rate
per annum equal to Sterling LIBOR or the Sterling Base Rate, as the case may
be, plus the Applicable Margin, and (iii) each Loan denominated in
Euros shall bear interest on the outstanding principal amount thereof  from the date when made at a rate per annum equal to
EURIBOR, plus the Applicable Margin. 
Notwithstanding the foregoing, Swing Loans may not be (i) denominated
in any Foreign Currency or (ii) LIBOR Rate Loans.  Each determination of an interest rate by the
Agent shall be conclusive and binding on the Borrower and the Lenders in the
absence of demonstrable error.  All
computations of fees and interest payable under this Agreement shall be made on
the basis of a 360-day year and actual days elapsed.  Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof.


 


13

















 


(b)           Interest
on each Loan shall be paid in arrears on each Interest Payment Date.  Interest shall also be paid on the date of
any payment or prepayment of Loans in full.


 


(c)           At
the election of the Agent or the Required Lenders while any Event of Default
exists (or automatically while any Event of Default under subsection 7.1(f) or
7.1(g) exists), the Borrower shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on the Obligations
under the Loan Documents from and after the date of occurrence of such Event of
Default, at a rate per annum which is determined by adding two percent (2.0%)
per annum to the Applicable Margin then in effect for such Loans (plus the
Dollar LIBOR, Sterling LIBOR, EURIBOR, Dollar Base Rate or Sterling Base Rate,
as the case may be) and, in the case of Obligations under the Loan Documents
not subject to an Applicable Margin (other than the fees described in
subsection 1.9(c)), at a rate per annum equal to the rate per annum applicable
to Revolving Loans which are Base Rate Loans (including the Applicable Margin
with respect thereto) plus two percent (2.0%). 
All such interest shall be payable on demand of the Agent or the
Required Lenders.


 


(d)           Anything
herein to the contrary notwithstanding, the obligations of the Borrower
hereunder shall be subject to the limitation that payments of interest shall
not be required, for any period for which interest is computed hereunder, to
the extent (but only to the extent) that contracting for or receiving such
payment by the respective Lender would be contrary to the provisions of any law
applicable to such Lender limiting the highest rate of interest which may be
lawfully contracted for, charged or received by such Lender, and in such event
the Borrower shall pay such Lender interest at the highest rate permitted by
applicable law (“Maximum Lawful Rate”); provided, however,
that if at any time thereafter the rate of interest payable hereunder is less
than the Maximum Lawful Rate, Borrower shall continue to pay interest hereunder
at the Maximum Lawful Rate until such time as the total interest received by
Agent, on behalf of Lenders, is equal to the total interest that would have
been received had the interest payable hereunder been (but for the operation of
this paragraph) the interest rate payable since the Second Restatement Closing
Date as otherwise provided in this Agreement.


 


1.4           Loan Accounts.


 


(a)           The
Agent, on behalf of the Lenders, shall record on its books and records the
amount of each Loan made, the interest rate applicable, all payments of
principal and interest thereon and the principal balance thereof from time to
time outstanding.  The Agent shall
deliver to the Borrower on a monthly basis a loan statement setting forth such
record for the immediately preceding month. 
Such record shall, absent manifest error, be conclusive evidence of the
amount of the Loans made by the Lenders to the Borrower and the interest and
payments thereon.  Any failure to so
record or any error in doing so, or any failure to deliver such loan statement
shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder (and under any Note) to pay any amount owing with respect to the
Loans or provide the basis for any claim against the Agent.


 


14

















 


(b)           The
Agent, acting as agent of the Borrower solely for tax purposes and solely with
respect to the actions described in this subsection 1.4(b), shall establish and
maintain at its address referred to in Section 9.2 (or at such
other address as the Agent may notify the Borrower) (A) a record of
ownership (the “Register”) in which the Agent agrees to register by book
entry the interests (including any rights to receive payment hereunder) of the
Agent, each Lender and each L/C Issuer in the Revolving Loans, Swing Loans and
Letter of Credit Obligations, each of their obligations under this Agreement to
participate in each Loan, Letter of Credit and L/C Reimbursement Obligations,
and any assignment of any such interest, obligation or right and (B) accounts
in the Register in accordance with its usual practice in which it shall record (1) the
names and addresses of the Lenders and the L/C Issuers (and each change thereto
pursuant to Sections 9.9 and 9.22), (2) the Revolving Loan
Commitments of each Lender, (3) the amount of each Loan and each funding
of any participation described in clause (A) above, for LIBOR Rate Loans,
the Interest Period applicable thereto, (4) the amount of any principal or
interest due and payable or paid, (5) the amount of the L/C Reimbursement
Obligations due and payable or paid in respect of Letters of Credit and (6) any
other payment received by the Agent from the Borrower and its application to
the Obligations.


 


(c)           Notwithstanding
anything to the contrary contained in this Agreement, the Loans (including any
Notes evidencing such Loans and, in the case of Revolving Loans, the
corresponding obligations to participate in Letter of Credit Obligations and
Swing Loans) and the L/C Reimbursement Obligations are registered obligations,
the right, title and interest of the Lenders and the L/C Issuers and their
assignees in and to such Loans or L/C Reimbursement Obligations, as the case
may be, shall be transferable only upon notation of such transfer in the
Register and no assignment thereof shall be effective until recorded
therein.  This Section 1.4
and Section 9.9 shall be construed so that the Loans and L/C
Reimbursement Obligations are at all times maintained in “registered form”
within the meaning of Sections 163(f), 871(h)(2) and 881(c)(2) of the
Code.


 


(d)           The
Credit Parties, the Agent, the Lenders and the L/C Issuers shall treat each
Person whose name is recorded in the Register as a Lender or L/C Issuer, as
applicable, for all purposes of this Agreement. 
Information contained in the Register with respect to any Lender or any
L/C Issuer shall be available for access by the Borrower, the Agent, such
Lender or such L/C Issuer at any reasonable time and from time to time
upon reasonable prior notice.  No Lender
or L/C Issuer shall, in such capacity, have access to or be otherwise permitted
to review any information in the Register other than information with respect
to such Lender or L/C Issuer unless otherwise agreed by the  Agent.


 


1.5           Procedure for Revolving
Credit Borrowing.


 


(a)           Each
Borrowing of a Revolving Loan shall be made upon the Borrower’s irrevocable
(subject to Section 10.5 hereof) written notice delivered to the
Agent in the form of a Notice of Borrowing, which notice must be received by
the Agent prior to 1:00 p.m. (New York time) (i) on the requested
Borrowing date in the case of each Base Rate Loan


 


15














 


denominated
in Dollars equal to or less than $25,000,000, (ii) on the date which is
one (1) Business Day prior to the requested Borrowing date in the case of
each Base Rate Loan denominated in Dollars in excess of $25,000,000, (iii) on
the date which is one (1) Business Day prior to the requested Borrowing
Date in the case of each Base Rate Loan denominated in any Foreign Currency,
and (iv) on the date which is three (3) Business Days prior to the
requested Borrowing date in the case of each LIBOR Rate Loan.  Such Notice of Borrowing shall specify:


 


(i)            the
amount of the Borrowing, which (a) with respect to Borrowings in Dollars,
such Borrowing shall be in an aggregate minimum principal amount of $100,000
and multiples of $50,000 in excess thereof, (b) with respect to Borrowings
in Sterling, such Borrowing shall be in an aggregate minimum principal amount
of £100,000 and multiples of
£50,000 in excess thereof and (c) with respect to Borrowings in Euros, such
Borrowing shall be in an aggregate minimum principal amount of €100,000 and multiples of €50,000 in excess thereof;


 


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


 


(iii)          whether
the Borrowing will be in Dollars, Euros or Sterling;


 


(iv)          whether
the Borrowing is to be comprised of LIBOR Rate Loans or Base Rate Loans; and


 


(v)           if
the Borrowing is to be LIBOR Rate Loans, the Interest Period applicable to such
Loans.


 


(b)           Upon
receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of
such Notice of Borrowing and of the amount of such Lender’s Commitment
Percentage of the Borrowing.


 


(c)           Unless
the Agent is otherwise directed in writing by the Borrower, the proceeds of
each requested Borrowing after the Second Restatement Closing Date will be made
available to the Borrower by the Agent by wire transfer of such amount to the
Borrower pursuant to the wire transfer instructions specified on the signature page hereto.


 


1.6           Conversion and Continuation
Elections.


 


(a)           Borrower
shall have the option to (i) request that any Revolving Loan be made as a
LIBOR Rate Loan, (ii) convert at any time all or any part of outstanding
Loans (other than Swing Loans) from Base Rate Loans to LIBOR Rate Loans, (iii) convert
any LIBOR Rate Loan to a Base Rate Loan, subject to Section 10.4 if
such conversion is made prior to the expiration of the Interest Period
applicable thereto, or (iv) continue all or any portion of any Loan as a
LIBOR Rate Loan upon the expiration of the applicable Interest Period.  Any Loan or


 


16

















 


group of
Loans having the same proposed Interest Period to be made or continued as, or
converted into, a LIBOR Rate Loan must be (a) if denominated in Dollars, a
minimum amount of $1,000,000 (b) if denominated in Sterling, a minimum
amount of £1,000,000,
or (c) if denominated in Euros, a minimum amount of €1,000,000.  Any such election must be made by 1:00 p.m.
(New York time) on the 3rd Business Day prior to (1) the date of any
proposed Revolving Loan which is to bear interest at LIBOR, (2) the end of
each Interest Period with respect to any LIBOR Rate Loans to be continued as
such, or (3) the date on which Borrower wishes to convert any Base Rate
Loan to a LIBOR Rate Loan for a Interest Period designated by Borrower in such
election.  If no election is received
with respect to a LIBOR Rate Loan by 1:00 p.m. (New York time)  on the 3rd Business Day prior to the end of the Interest
Period with respect thereto, that LIBOR Rate Loan shall be converted to a Base
Rate Loan at the end of its Interest Period. 
Borrower must make such election by notice to Agent in writing, by fax
or overnight courier (or by telephone, to be confirmed in writing on such
day).  In the case of any conversion or
continuation, such election must be made pursuant to a written notice (a “Notice
of Conversion/Continuation”) in the form of Exhibit 1.6.  No Loan shall be made, converted into or
continued as a LIBOR Rate Loan, if an Event of Default has occurred and is
continuing and Agent or Required Lenders have determined not to make or
continue any Loan as a LIBOR Rate Loan as a result thereof.


 


(b)           Upon
receipt of a Notice of Conversion/Continuation, the Agent will promptly notify
each Lender thereof.  In addition, the
Agent will, with reasonable promptness, notify the Borrower and the Lenders of
each determination of LIBOR; provided that any failure to do so shall
not relieve the Borrower of any liability hereunder or provide the basis for
any claim against the Agent.  All
conversions and continuations shall be made pro rata according to the
respective outstanding principal amounts of the Loans held by each Lender with
respect to which the notice was given.


 


(c)           Notwithstanding
any other provision contained in this Agreement, after giving effect to any
Borrowing, or to any continuation or conversion of any Loans, there shall not
be more than seven (7) different Interest Periods in effect.


 


1.7           Optional Prepayments.


 


(a)           The
Borrower may prepay the Loans in whole or in part provided that (i) if the
Loans are denominated in Dollars, such amount must be greater than or equal to
$100,000, (ii) if the Loans are denominated in Sterling, such amount must
be greater than or equal to £100,000
and (iii) if the Loans are denominated in Euros, such amount must be greater
than or equal to €100,000, in each instance, without penalty
or premium except as provided in Section 1.9(d) and  Section 10.4.  Notwithstanding the foregoing, (i) Borrower
must provide at least one (1) Business Days’ prior written notice to Agent
prior to the prepayment of Loans denominated in any Foreign Currency and (ii) no
minimum amount shall apply with respect to Swing Loans.


 


17

















 


(b)           The
notice of any prepayment shall not thereafter be revocable, except to the
extent such prepayment is conditioned upon the effectiveness of other credit
facilities, by the Borrower and the Agent will promptly notify each Lender
thereof and of such Lender’s Commitment Percentage of such prepayment.  The payment amount specified in such notice
shall be due and payable on the date specified therein.  Together with each prepayment under this Section 1.7,
the Borrower shall pay any amounts required pursuant to Section 1.9(d) and  Section 10.4.


 


1.8           Mandatory Prepayments of
Loans.


 


(a)           Intentionally
Omitted


 


(b)           Revolving
Loan. 
The Borrower shall repay to the Lenders in full on the date specified in
clause (a) of the definition of “Revolving Termination Date” the aggregate
principal amount of the Revolving Loans and Swing Loans outstanding on the Revolving
Termination Date.


 


(c)           Asset
Dispositions.  If the Borrower or any of its Subsidiaries
shall at any time or from time to time:


 


(i)            make
or agree to make a Disposition; or


 


(ii)           suffer
an Event of Loss;


 


and the aggregate amount of
the Net Proceeds received by the Borrower and its Subsidiaries in connection
with such Disposition or Event of Loss and all other Dispositions and Events of
Loss occurring during the fiscal year exceeds $500,000, then (A) the
Borrower shall promptly notify the Agent of such proposed Disposition or Event
of Loss (including the amount of the estimated Net Proceeds to be received by
the Borrower and/or such Subsidiary in respect thereof) and (B) promptly
upon receipt by the Borrower and/or such Subsidiary of the Net Proceeds of such
Disposition or Event of Loss, the Borrower shall deliver, or cause to be
delivered, such excess Net Proceeds to the Agent for distribution to the
Lenders as a prepayment of the Loans, which prepayment shall be applied in
accordance with subsection 1.8(f) hereof. 
Notwithstanding the foregoing and provided no Default or Event of
Default has occurred and is continuing, such prepayment shall not be required
to the extent the Borrower or such Subsidiary reinvests the Net Proceeds of
such Disposition or Event of Loss in productive assets (other than Inventory)
of a kind then used or usable in the business of the Borrower or such
Subsidiary, within two hundred seventy (270) days after the date of such
Disposition or Event of Loss or enters into a binding commitment thereof within
said two hundred seventy (270) day period and subsequently makes such
reinvestment.   Pending such
reinvestment, the Net Proceeds shall be delivered to the Agent, for
distribution first, to the Swingline Lender as a prepayment of Swing Loans (to
the extent of Swing Loans outstanding), but not as a permanent reduction of the
Swingline Commitment and thereafter to the Lenders, as a prepayment of the
Revolving Loans


 


18

















 


(to
the extent of Revolving Loans then outstanding), but not as a permanent
reduction of the Revolving Loan Commitment. 
To the extent any Net Proceeds remain after application of such Net
Proceeds to the Loans in accordance with the previous sentence, such remainder
may be retained by Borrower.


 


(d)           Issuance
of Securities.  Immediately upon the receipt by any Credit
Party or any Subsidiary of any Credit Party of the Net Issuance Proceeds of the
issuance of Stock or Stock Equivalents (including any capital contribution) or
debt securities (other than Net Issuance Proceeds from the issuance of (i) debt
securities in respect of Indebtedness permitted hereunder, and (ii) Excluded
Equity Issuances), the Borrower shall deliver, or cause to be delivered, to the
Agent an amount equal to such Net Issuance Proceeds, for application to the
Loans in accordance with subsection 1.8(f).


 


(e)           Proceeds
Under Purchase Agreement.  With respect to any Permitted Acquisition,
immediately upon receipt of (i) any payment in respect of any purchase
price adjustment in favor of any Credit Party or (ii) any indemnification
payment by the sellers after the Second Restatement Closing Date (other than
amounts paid as a result of a claim by a Credit Party for indemnification under
the purchase agreement to the extent that the amounts so received are applied
by such Credit Party for the purpose of (A) replacing, repairing or
restoring any assets or properties of such Credit Party or satisfying the
condition giving rise to the claim for indemnification, (B) payment of (or
reimbursement of payments made for) claims and settlements to third Persons not
an Affiliate of or a Credit Party, or (C) otherwise covering any
out-of-pocket expenses incurred by the Borrower in obtaining such
indemnification), the Borrower shall deliver to the Agent an amount equal to
such payment for application to the Loans in accordance with subsection 1.8(f).


 


(f)            Application
of Prepayments.  Subject to subsection 1.10(c), any
prepayments pursuant to subsection 1.8(c), 1.8(d) or 1.8(e) shall
be applied first to prepay outstanding Swing Loans, and second  to prepay outstanding Revolving Loans.  To the extent permitted by the foregoing
sentence, amounts prepaid shall be applied first to any Base Rate Loans then
outstanding and then to outstanding LIBOR Rate Loans with the shortest Interest
Periods remaining.  Together with each
prepayment under this Section 1.8, the Borrower shall pay any
amounts required pursuant to Section 10.4 hereof.


 


1.9           Fees.


 


(a)           Agent’s
Fees. 
The Borrower shall pay to the Agent, for the Agent’s own account, fees
in the amounts and at the times set forth in the letter agreement between the
Borrower and the Agent dated as of the Closing Date (as amended on the Second
Restatement Closing Date and as otherwise amended from time to time, the “Fee
Letter”).


 


(b)           Unused
Facility Fee.  The Borrower shall pay to the Agent, for the
ratable benefit of the Lenders, a fee (the “Unused Facility Fee”) in an
amount equal to the then


 


19

















 


current
Unused Facility Amount multiplied by the applicable Unused Facility Fee Margin
in effect from time to time pursuant to and in accordance with the appropriate
column under the table below. Such fee shall be payable monthly in arrears on
the first day of the month following the Second Restatement Closing Date and
the first day of each month thereafter. 
The Unused Facility Fee provided in this subsection 1.9(b) shall
accrue at all times from and after the Second Restatement Closing Date


 


	
  If
  Unused Facility Amount is:

  	
   

  	
  Unused
  Facility Fee Margin is:

  	
   

  
	
  < 70% of the Aggregate Revolving Loan Commitment

  	
   

  	
  .50

  	
  %

  
	
  > 70% of the Aggregate Revolving Loan Commitment

  	
   

  	
  .75

  	
  %

  



 


(c)           Letter
of Credit Fee.  The Borrower agrees to pay to Agent for the
ratable benefit of the Lenders, as compensation to such Lenders for Letter of
Credit Obligations incurred hereunder, (i) without duplication of costs
and expenses otherwise payable to Agent or Lenders hereunder or fees otherwise
paid by the Borrower, all reasonable costs and expenses incurred by Agent or
any Lender on account of such Letter of Credit Obligations, and (ii) for
each month during which any Letter of Credit Obligation shall remain
outstanding, a fee (the “Letter of Credit Fee”) in an amount equal to
the product of the average daily undrawn face amount of all Letters of Credit
issued, guaranteed or supported by risk participation agreements multiplied by
a per annum rate equal to the “Applicable L/C Margin” (as defined in the
definition of Applicable Margin); provided, however, at Agent’s or Required
Lenders’ option, while an Event of Default exists (or automatically while an
Event of Default under subsection 7.1(f) or 7.1(g) exists), such rate
shall be increased by two percent (2.00%) per annum.  Such fee shall be paid to Agent for the
benefit of the Lenders in arrears, on the first day of each calendar month and
on the Revolving Termination Date.  In
addition, the Borrower shall pay to any L/C Issuer, on demand, such reasonable
fees, without duplication of fees otherwise payable hereunder (including all
per annum fees), charges and expenses of such L/C Issuer in respect of the
issuance, negotiation, acceptance, amendment, transfer and payment of such
Letter of Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.


 


(d)           If
Borrower pays after acceleration or prepays the Revolving Loan and reduces or
terminates the Aggregate Revolving Loan Commitment, whether voluntarily or
involuntarily and whether before or after acceleration of the Obligations or if
the Revolving Loan Commitments are otherwise terminated, Borrower shall pay to
Agent, for the benefit of Lenders as liquidated damages and compensation for
the costs of being prepared to make funds available hereunder an amount equal
to the Applicable Percentage (as defined below) multiplied by the amount of the
reduction of the Aggregate Revolving Loan Commitment; provided, however,
Borrower may prepay the Revolving Loan and reduce the Aggregate


 


20

















 


Revolving
Loan Commitment in an amount not to exceed the Dollar Equivalent of $30,000,000
within forty-five (45) days after completion of the IPO without any penalty
under this Section 1.9(d).  
As used herein, the term “Applicable Percentage” shall mean (x) one
and one-half percent (1.50%), in the case of a prepayment on or prior to the
first anniversary of the Second Restatement  
Closing Date, (y) one percent (1.0%), in the case of a prepayment
after the first anniversary of the Second Restatement Closing Date but on or
prior to the second anniversary thereof, and (z) one-half of one percent
(0.50%), in the case of a prepayment after the second anniversary of the Second
Restatement Closing Date but on or prior to the third anniversary thereof.  The Credit Parties agree that the Applicable
Percentages are a reasonable calculation of Lenders’ lost profits in view of
the difficulties and impracticality of determining actual damages resulting
from an early termination of the Revolving Loan Commitments.  Notwithstanding the foregoing, no prepayment
fee shall be payable by Borrower upon a mandatory prepayment made pursuant to Section 1.8;
provided that Borrower does not permanently reduce or terminate the
Aggregate Revolving Loan Commitment upon any such prepayment and, in the case
of prepayments made pursuant to Section 1.8, the transaction giving
rise to the applicable prepayment is expressly permitted under Section 5.


 


1.10         Payments by the Borrower.


 


(a)           All
payments (including prepayments) to be made by each Credit Party on account of
principal, interest, fees and other amounts required hereunder shall be made
without set-off, recoupment, counterclaim or deduction of any kind, shall,
except as otherwise expressly provided herein, be made to the Agent (for the
ratable account of the Persons entitled thereto) at the address for payment
specified in the signature page hereof in relation to the Agent (or such
other address as the Agent may from time to time specify in accordance with Section 9.2),
and shall be made in the currency specified in Section 1.15 and in
immediately available funds, no later than 2:00 p.m. (New York time) on
the date due. Any payment which is received by the Agent later than 2:00 p.m.
(New York time) shall be deemed to have been received on the immediately
succeeding Business Day and any applicable interest or fee shall continue to
accrue.  Borrower and each other Credit
Party hereby irrevocably waives the right to direct the application during the
continuance of an Event of Default of any and all payments in respect of any
Obligation and any proceeds of Collateral. 
The Borrower hereby authorizes the Agent and each Lender to make a
Revolving Loan (which shall be a Base Rate Loan denominated in Dollars and
which may be a Swing Loan) to pay (i) interest, principal (including Swing
Loans), agent fees, Unused Facility Fees and Letter of Credit Fees, in each
instance, on the date due, or (ii) after five (5) days prior notice
to the Borrower, other fees, costs or expenses payable by the Borrower or any
of its Subsidiaries hereunder or under the other Loan Documents.


 


(b)           Subject
to the provisions set forth in the definition of “Interest Period” herein, if
any payment hereunder shall be stated to be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such
extension of time


 


21

















 


shall in
such case be excluded in the computation of interest or fees for the month then
ended, as the case may be, and shall be payable in the subsequent month.


 


(c)           During
the continuance of an Event of Default, the Agent may, and shall upon the
direction of Required Lenders, apply any and all payments in respect of any
Obligation in accordance with clauses first through sixth below.  Notwithstanding any provision herein to the
contrary, all amounts collected or received by the Agent after any or all of
the Obligations have been accelerated (so long as such acceleration has not
been rescinded) and all proceeds received by the Agent as a result of the
exercise of its remedies under the Collateral Documents after the occurrence
and during the continuance of an Event of Default shall be applied as follows:


 


first, to payment of
costs and expenses, including Attorney Costs, of the Agent payable or
reimbursable by the Credit Parties under the Loan Documents;


 


second, to payment of
Attorney Costs of Lenders payable or reimbursable by the Borrower under this
Agreement;


 


third, to payment of
all accrued unpaid interest on the Obligations and fees owed to the Agent and
Lenders;


 


fourth, to payment of
principal of the Obligations (including, without limitation, (i) L/C
Reimbursement Obligations then due and payable, (ii) any Obligations up to
$5,000,000 under any Secured Rate Contract  and (iii) cash
collateralization of L/C Reimbursement Obligations to the extent not then due
and payable);


 


fifth, to payment of
any other amounts owing constituting Obligations; and


 


sixth, any remainder
shall be for the account of and paid to whoever may be lawfully entitled
thereto.


 


In carrying out the
foregoing, (i) amounts received shall be applied in the numerical order
provided until exhausted prior to the application to the next succeeding
category and (ii) each of the Lenders or other Persons entitled to payment
shall receive an amount equal to its pro rata share of amounts available to be
applied pursuant to clauses third, fourth and fifth above.


 


1.11         Payments by the Lenders to
the Agent; Settlement.


 


(a)           Agent
may, on behalf of Lenders, disburse funds to the Borrower for Loans
requested.  Each Lender shall reimburse
Agent on demand for all funds disbursed on its behalf by Agent, or if Agent so
requests, each Lender will remit to Agent its Commitment Percentage of any Loan
before Agent disburses same to the Borrower. 
If Agent elects to require that each Lender make funds available to
Agent prior to disbursement by Agent to the


 


22

















 


Borrower,
Agent shall advise each Lender by telephone or fax of the amount of such Lender’s
Commitment Percentage of the Loan requested by Borrower no later than 1:00 p.m.
(New York time) on the scheduled Borrowing date applicable thereto, and each
such Lender shall pay Agent such Lender’s Commitment Percentage of such
requested Loan, in same day funds, by wire transfer to Agent’s account on such
scheduled Borrowing date.  If any Lender
fails to pay its Commitment Percentage within one (1) Business Day after
Agent’s demand, Agent shall promptly notify Borrower, and the Borrower shall
immediately repay such amount to Agent. 
Any repayment required pursuant to this subsection 1.11(a) shall be
without premium or penalty.  Nothing in
this subsection 1.11(a) or elsewhere in this Agreement or the other Loan
Documents, including the remaining provisions of Section 1.11,
shall be deemed to require Agent to advance funds on behalf of any Lender or to
relieve any Lender from its obligation to fulfill its Revolving Loan
Commitments hereunder or to prejudice any rights that Agent, Swingline Lender
or Borrower may have against any Lender as a result of any default by such
Lender hereunder.


 


(b)           At
least once each calendar week or more frequently at Agent’s election (each, a “Settlement
Date”), Agent shall advise each Lender by telephone or fax of the amount of
such Lender’s Commitment Percentage of principal, interest and Fees paid for
the benefit of Lenders with respect to each applicable Loan.  Provided that each Lender has funded all
payments required to be made by it and funded all purchases of participations
required to be funded by it under this Agreement and the other Loan Documents
as of such Settlement Date, Agent shall pay to each Lender such Lender’s
Commitment Percentage of principal, interest and Fees paid by the Borrower
since the previous Settlement Date for the benefit of such Lender on the Loans
held by it on any Business Day, Agent shall pay to each applicable Lender such
Lender’s Commitment Percentage of such payment on such Business Day, Agent
shall pay to each applicable Lender such Lender’s Commitment Percentage of such
payment on the next Business Day.  Such
payments shall be made by wire transfer to such Lender) not later than 2:00 p.m.
(New York time) on the next Business Day following each Settlement Date. To the
extent that any Lender (a “Non-Funding Lender”) has failed to fund all
such payments or failed to fund the purchase of all such participations
required to be funded by such Lender pursuant to this Agreement, Agent shall be
entitled to set off the funding shortfall against that Non-Funding Lender’s
Commitment Percentage of all payments received from the Borrower.


 


(c)           Availability
of Lender’s Commitment Percentage.  Agent may assume that each Lender will make
its Commitment Percentage of each Revolving Loan available to Agent on each
Borrowing date.  If such Commitment
Percentage is not, in fact, paid to Agent by such Lender when due, Agent will
be entitled to recover such amount on demand from such Lender without setoff,
counterclaim or deduction of any kind. 
If any Lender fails to pay the amount of its Commitment Percentage
forthwith upon Agent’s demand, Agent shall promptly notify the Borrower and the
Borrower shall immediately repay such amount to Agent.  Nothing in this subsection 1.11(c) or
elsewhere in this Agreement or the other Loan Documents shall be deemed to
require Agent to advance funds on behalf of any Lender or to relieve any Lender


 


23

















 


from its
obligation to fulfill its Revolving Loan Commitments hereunder or to prejudice
any rights that the Borrower may have against any Lender as a result of any
default by such Lender hereunder.  To the
extent that Agent advances funds to the Borrower on behalf of any Lender and is
not reimbursed therefor on the same Business Day as such advance is made, Agent
shall be entitled to retain for its account all interest accrued on such
advance until reimbursed by the applicable Lender.


 


(d)           Return
of Payments.


 


(i)            If
Agent pays an amount to a Lender under this Agreement in the belief or
expectation that a related payment has been or will be received by Agent from
the Borrower and such related payment is not received by Agent, then Agent will
be entitled to recover such amount from such Lender on demand without setoff,
counterclaim or deduction of any kind.


 


(ii)           If
Agent determines at any time that any amount received by Agent under this
Agreement must be returned to any Credit Party or paid to any other Person
pursuant to any insolvency law or otherwise, then, notwithstanding any other
term or condition of this Agreement or any other Loan Document, Agent will not
be required to distribute any portion thereof to any Lender.  In addition, each Lender will repay to Agent
on demand any portion of such amount that Agent has distributed to such Lender,
together with interest at such rate, if any, as Agent is required to pay to any
Borrower or such other Person, without setoff, counterclaim or deduction of any
kind.


 


(e)           Non-Funding
Lenders. 
The failure of any Non-Funding Lender to make any Revolving Loan or any
payment required by it hereunder, or to fund any purchase of any participation
to be made or funded by it on the date specified therefor shall not relieve any
other Lender (each such other Lender, an “Other Lender”) of its
obligations to make such loan or fund the purchase of any such participation on
such date, but neither any Other Lender nor Agent shall be responsible for the
failure of any Non-Funding Lender to make a loan, fund the purchase of a
participation or make any other payment required hereunder.  Notwithstanding anything set forth herein to
the contrary, a Non-Funding Lender shall not have any voting or consent rights
under or with respect to any Loan Document or constitute a “Lender” or a “Lender”
(or be included in the calculation of “Required Lenders” hereunder) for any
voting or consent rights under or with respect to any Loan Document.


 


1.12         Increases in Revolving Loan Commitment.


 


Borrower
shall have the right from time to time during the five (5) year period
immediately following the Closing Date upon not less than fifteen (15) Business
Days’ prior written notice to Agent to request an increase in the then
applicable Aggregate Revolving Loan Commitment in incremental amounts equal to
$5,000,000 from existing Lenders and/or new lenders acceptable to Agent;
provided that (i) no Default or Event of Default shall have occurred


 


24

















 


and
be continuing at the time such request is made or at the time such increase is
to become effective, (ii) the Aggregate Revolving Loan Commitments of
Lenders (including any new lenders) shall in no event exceed $100,000,000 minus
the aggregate original principal amount of any Indebtedness incurred under Section 5.5(j),
(iii) Borrower shall have paid to Lenders that agree to increase their
Revolving Loan Commitment or such new lenders a commitment fee in an amount to
be mutually agreed on by Borrower and such Lenders or new lenders with respect
to the amount of the requested increase, (iv) Borrower shall have
delivered to Agent an amendment to this Agreement reflecting the requested
increase, (v) Borrower shall have duly executed and delivered to Lenders
that agree to increase their Revolving Loan Commitment or such new lenders, if
requested by such Lenders or such new lenders, Notes in the amount of the
requested increase, (vi) if requested by Agent, Borrower shall have
delivered to Agent, such opinions and authority documentation as Agent may
reasonably require, with respect to the due authorization, execution and
delivery and enforceability of such amendment to this Agreement and such
additional Notes, (vii) after giving effect to any Revolving Loans made
pursuant to such increase, the Credit Parties are in compliance on a pro forma
basis with the covenants set forth in Article VI, recomputed for the most
recent quarter for which financial statements have been delivered and (viii) the
interest rate with respect to all Revolving Loans shall be the same.   Borrower acknowledges and agrees that no
Lender shall be under any obligation to increase its Revolving Loan Commitment
hereunder.


 


1.13         Conversion to Dollars and Foreign Currency.


 


(a)           Except
as expressly set forth herein, all valuations or computations of monetary
amounts set forth in this Agreement shall include the Dollar Equivalent of the
applicable Foreign Currency.  All
currency conversions to be made under this Agreement shall be made in accordance
with the following procedure:


 


(i)            Conversions
to Dollars shall occur in accordance with prevailing exchange rates, as
determined by Agent in its reasonable discretion, on the applicable date.


 


(ii)           Conversions
to any Foreign Currency shall occur in accordance with prevailing exchange
rates, as determined by Agent in its reasonable discretion, on the applicable
date.


 


(iii)          The
Dollar Equivalent of each of the Revolving Loans denominated in Foreign
Currency shall be re-calculated on (a) so long as the Availability equals
or exceeds $5,000,000, the first Business Day of each month and (b) otherwise,
the first Business Day of each week.


 


(b)           All
valuations or computations of monetary amounts set forth in any Availability
Certificate or any other report, certificate, financial statement or other document


 


25














 


delivered by any Credit Party to Agent hereunder shall be
made in accordance with GAAP and the ordinary business practices of the Credit
Parties as of the Second Restatement Closing Date; provided,
that any such report or document shall set forth the conversion factors used
with respect to any Foreign Currency.


 


1.14         Judgment Currency; Contractual Currency.


 


(a)           If,
for the purpose of obtaining or enforcing judgment against any Credit Party in
any court in any jurisdiction, it becomes necessary to convert into any other
currency (such other currency being hereinafter in this Section 1.14
referred to as the “Judgment Currency”)
an amount due under any Loan Document in any currency (the “Obligation Currency”) other than the Judgment
Currency, the conversion shall be made at the rate of exchange prevailing on
the Business Day immediately preceding (i) the date of actual payment of
the amount due, in the case of any proceeding in the courts of any jurisdiction
that will give effect to such conversion being made on such date, or (ii) the
date on which the judgment is given, in the case of any proceeding in the
courts of any other jurisdiction (the applicable date as of which such
conversion is made pursuant to this Section 1.14
being hereinafter referred to as the “Judgment
Conversion Date”).


 


(b)           If,
in the case of any proceeding in the court of any jurisdiction referred to in Section 1.14(a), there is a change in the
rate of exchange prevailing between the Judgment Conversion Date and the date
of actual receipt for value of the amount due, the applicable Credit Party
shall pay such additional amount (if any, but in any event not a lesser amount)
as may be necessary to ensure that the amount actually received in the Judgment
Currency, when converted at the rate of exchange prevailing on the date of
payment, will produce the amount of the Obligation Currency which could have
been purchased with the amount of the Judgment Currency stipulated in the
judgment or judicial order at the rate of exchange prevailing on the Judgment
Conversion Date.  Any amount due from a
Credit Party under this Section 1.14(b) shall
be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of any of the Loan Documents.


 


(c)           The
term “rate of exchange” in this Section 1.14
means the rate of exchange at which Agent would, on the relevant date at or
about noon (New York City time), be able to sell the Obligation Currency
against the Judgment Currency to prime banks.


 


(d)           Any
amount received or recovered by Agent in respect of any sum expressed to be due
to them (whether for itself or on behalf of any other person) from any Credit
Party under this Agreement or under any of the other Loan Documents in a
currency other than the currency (the “contractual currency”) in which such sum
is so expressed to be due (whether as a result of, or from the enforcement of,
any judgment or order of a court or tribunal of any jurisdiction, the
winding-up of a Credit Party or otherwise) shall only constitute a discharge of
such Credit Party to the extent of the amount of the contractual currency that
Agent is able, in accordance with its usual practice, to purchase with the
amount of the currency so received or


 


26

















 


recovered on the date of receipt or recovery (or, if later,
the first Business Day on which such purchase is practicable).  If the amount of the contractual currency so
purchased is less than the amount of the contractual currency so expressed to
be due, such Borrower shall indemnify Agent against any loss sustained by it as
a result, including the cost of making any such purchase other than losses
resulting from the gross negligence or willful misconduct of Agent or any other
Person seeking such indemnification.


 


1.15         Currency of Account.


 


Dollars are the currency of account and
payment for each and every sum at any time due from the Borrowers hereunder; provided, that:


 


(i)            unless
expressly provided elsewhere in this Agreement, each repayment of a Revolving
Loan or a part thereof advanced in any Foreign Currency shall be made in such
Foreign Currency;


 


(ii)           each
payment of interest in respect of principal, or any other sum, denominated in
any Foreign Currency shall be made in such Foreign Currency;


 


(iii)          each
payment in respect of costs and expenses incurred in any Foreign Currency shall
be made in such Foreign Currency; and


 


(iv)          any
other amount expressed to be payable in any Foreign Currency shall be made in
such Foreign Currency.


 


ARTICLE II.

CONDITIONS PRECEDENT


 


2.1           Conditions of Loans.  The obligation of each Lender to make its
Loans and of each L/C Issuer to Issue, or cause to be Issued, the Letters of
Credit hereunder is subject to satisfaction of the following conditions:


 


(a)           Loan
Documents.  The Agent shall have received on or before
the Second Restatement Closing Date all of the agreements, documents,
instruments and other items set forth on the Closing Checklist attached hereto
as Exhibit 2.1, each in form and substance reasonably satisfactory
to the Agent.


 


27

















 


2.2           Conditions to All Borrowings.  Except as otherwise expressly provided
herein, no Lender or L/C Issuer shall be obligated to fund any Loan or incur
any Letter of Credit Obligation, if, as of the date thereof:


 


(a)           any
representation or warranty by any Credit Party contained herein or in any other
Loan Document is untrue or incorrect in any material respect (without
duplication of any materiality qualifier contained therein) as of such date,
except to the extent that such representation or warranty expressly relates to
an earlier date (in which event such representations and warranties were untrue
or incorrect in any material respect as of such earlier date), and Agent or Required
Lenders have determined not to make such Loan or incur such Letter of Credit
Obligation as a result of the fact that such warranty or representation is
untrue or incorrect;


 


(b)           any
Default or Event of Default has occurred and is continuing or would result
after giving effect to any Loan (or the incurrence of any Letter of Credit
Obligation), and Agent or Required Lenders shall have determined not to make
any Loan or incur any Letter of Credit Obligation as a result of that Default
or Event of Default;


 


(c)           after
giving effect to any Loan (or the incurrence of any Letter of Credit
Obligations), the aggregate outstanding amount of the Revolving Loans would
exceed the Maximum Revolving Loan Balance;


 


(d)           after
giving effect to any Loan (or the incurrence of any Letter of Credit
Obligations), the Dollar Equivalent of Revolving Loans advanced in a Foreign
Currency would exceed the Foreign Subfacility Limit;


 


(e)           after
giving effect to any Loan (or the incurrence of any Letter of Credit
Obligations), the ratio of (i) Senior Debt as of the date of such
Borrowing or incurrence, to (ii) EBITDA for the most recent twelve month
period ending on or prior to such date for which financial statements have been
delivered pursuant to subsection 4.1 hereof, would exceed the maximum permitted
Senior Leverage Ratio pursuant to subsection 6.2 as of the last day of the most
recent calendar quarter.


 


The request and acceptance
by Borrower of the proceeds of any Loan or the incurrence of any Letter of
Credit Obligations shall be deemed to constitute, as of the date thereof, (i) a
representation and warranty by Borrower that the conditions in this Section 2.2
have been satisfied and (ii) a reaffirmation by each Credit Party of the
granting and continuance of Agent’s Liens, on behalf of itself and Lenders,
pursuant to the Collateral Documents.


 


28

















 


ARTICLE III.

REPRESENTATIONS AND WARRANTIES


 


The Credit Parties, jointly
and severally, represent and warrant to the Agent and each Lender that the
following are true, correct and complete:


 


3.1           Corporate Existence and
Power.  Each Credit Party and each of
their respective Subsidiaries:


 


(a)           is
a corporation, limited liability company or limited partnership, as applicable,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, organization or formation, as applicable;


 


(b)           has
the power and authority and all material governmental licenses, authorizations,
Permits, consents and approvals necessary to own its assets, to carry on its
business and execute, deliver, and perform its obligations under the Loan
Documents to which it is a party;


 


(c)           is
duly qualified as a foreign corporation, limited liability company or limited
partnership, as applicable, and licensed and in good standing, under the laws
of each jurisdiction where its ownership, lease or operation of Property or the
conduct of its business requires such qualification or license; and


 


(d)           is
in compliance with all Requirements of Law;


 


except, in each case
referred to in clause (c) or clause (d), to the extent that the failure to
do so would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.


 


3.2           Corporate Authorization; No
Contravention.


 


(a)           The
execution, delivery and performance by each of the Credit Parties and each of
their respective Subsidiaries of any Loan Document to which such Person is
party, have been duly authorized by all necessary action, and do not and will
not:


 


(i)            contravene
the terms of any of that Person’s Organization Documents;


 


(ii)           conflict
with or result in any material breach or contravention of, or result of the
creation of any Lien under, any document evidencing any material Contractual
Obligation to which such Person is a party or any order, injunction, writ or
decree of any Governmental Authority to which such Person or its Property is
subject; or


 


(iii)          violate
any material Requirement of Law in any material respect.


 


(b)           As
of the Second Restatement Closing Date, Schedule 3.2 sets forth the
authorized Stock and Stock Equivalents of each of the Credit Parties and each
of their


 


29

















 


respective
Subsidiaries.  All issued and outstanding
Stock and Stock Equivalents of each of the Credit Parties and each of their
respective Subsidiaries are duly authorized and validly issued, fully paid,
non-assessable, and free and clear of all Liens other than, with respect to the
Stock and Stock Equivalents of Borrower and Subsidiaries of the Borrower, those
in favor of the Agent, for the benefit of the Agent and Lenders. All such
securities were issued in compliance with all applicable state and federal laws
concerning the issuance of securities. 
As of the Second Restatement Closing Date, all of the issued and
outstanding Stock and Stock Equivalents of each of the Credit Parties is owned
by the Persons and in the amounts set forth on Schedule 3.2.  Other than in connection with the IPO being
contemplated by the Borrower on the date hereof and except as set forth on Schedule
3.2, there are no pre-emptive or other outstanding rights, options,
warrants, conversion rights or other similar agreements or understandings for
the purchase or acquisition of any Stock and Stock Equivalents of any Credit
Party.


 


3.3           Governmental Authorization.  No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Credit Party
or any Subsidiary of any Credit Party of this Agreement or any other Loan
Document except (a) for recordings and filings in connection with the
Liens granted to the Agent under the Collateral Documents, (b) those
obtained or made on or prior to the Second Restatement Closing Date and (c) those
which, if not obtained or made, would not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.


 


3.4           Binding Effect.  This Agreement and each other Loan Document
to which any Credit Party or any Subsidiary of any Credit Party is a party
constitute the legal, valid and binding obligations of each such Person which
is a party thereto, enforceable against such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles relating to enforceability.


 


3.5           Litigation.  Except as specifically disclosed in Schedule
3.5, there are no actions, suits, proceedings, claims or disputes pending,
or to the knowledge of any Credit Party, threatened or contemplated, at law, in
equity, in arbitration or before any Governmental Authority, against any Credit
Party, any Subsidiary of any Credit Party or any of their respective Properties
which:


 


(a)           affect
or pertain to this Agreement, any other Loan Document or any of the
transactions contemplated hereby or thereby; or


 


(b)           would
reasonably be expected to result in equitable relief or monetary judgment(s),
individually or in the aggregate, in excess of $2,500,000.


 


30

















 


No injunction, writ,
temporary restraining order or any order of any nature has been issued by any
court or other Governmental Authority to enjoin or restrain the execution,
delivery or performance of this Agreement, any other Loan Document, or
directing that the transactions provided for herein or therein not be consummated
as herein or therein provided.  As of the
Second Restatement Closing Date, no Credit Party or any Subsidiary of any
Credit Party is the subject of an audit by the IRS or other Governmental
Authority or, to each Credit Party’s knowledge, any review or investigation by
the IRS or other Governmental Authority concerning the violation or possible
violation of any Requirement of Law, except where such violation(s), solely
with respect to state or local sales and use taxes, could reasonably be
expected to result in Borrower owing amounts in excess of $3,500,000,
individually or in the aggregate.


 


3.6           No Default.  No Default or Event of Default exists or
would result from the incurring of any Obligations by any Credit Party or the
grant or perfection of the Agent’s Liens on the Collateral.  No Credit Party and no Subsidiary of any
Credit Party is in default under or with respect to any Contractual Obligation
in any respect which, individually or together with all such defaults, would
reasonably be expected to have a Material Adverse Effect.


 


3.7           ERISA Compliance.  Schedule 3.7 sets forth, as of the
Second Restatement Closing Date, a complete and correct list of, and that
separately identifies, (a) all Title IV Plans, (b) all Multiemployer
Plans and (c) all material Benefit Plans. 
Each Benefit Plan, and each trust thereunder, intended to qualify for
tax exempt status under Section 401 or 501 of the Code or other
Requirements of Law so qualifies.  Except
for those events that would not, in the aggregate, have a Material Adverse
Effect, (x) each Benefit Plan is in compliance with applicable provisions
of ERISA, the Code and other Requirements of Law, (y) there are no
existing or pending (or to the knowledge of any Credit Party, threatened)
claims (other than routine claims for benefits in the normal course),
sanctions, actions, lawsuits or other proceedings or investigation involving
any Benefit Plan to which any Credit Party incurs or otherwise has or could
have an obligation or any Liability and (z) no ERISA Event is reasonably
expected to occur.  On the Second
Restatement Closing Date, no ERISA Event has occurred in connection with which
obligations and liabilities (contingent or otherwise) remain outstanding.  No ERISA Affiliate would have any Withdrawal
Liability as a result of a complete withdrawal from any Multiemployer Plan on
the date this representation is made.


 


3.8           Use of Proceeds; Margin
Regulations.  The
proceeds of the Loans are intended to be and shall be used solely for the
purposes set forth in and permitted by Section 4.10, and are
intended to be and shall be used in compliance with Section 5.8.  No Credit Party and no Subsidiary of any
Credit Party is engaged in the business of purchasing or selling Margin Stock
or extending credit for the purpose of purchasing or carrying Margin
Stock.  Proceeds of the Loans shall not
be used for the purpose of purchasing or carrying Margin Stock.


 


3.9           Title to Properties.  Each of the Credit Parties and each of their
respective Subsidiaries has good and legal title to, or valid leasehold
interests in, all real Property, and good and legal title to all owned personal
Property and valid leasehold interests in all leased personal


 


31

















 


Property, in each instance, necessary for the conduct of their
respective businesses.  The Property of
the Credit Parties and its Subsidiaries is subject to no Liens, other than
Permitted Liens.


 


3.10         Taxes.  All federal, state, local and foreign income
and franchise and other material tax returns, reports and statements
(collectively, the “Tax Returns”) required to be filed by any Tax
Affiliate have been filed with the appropriate Governmental Authorities in all
jurisdictions in which such Tax Returns are required to be filed, all such Tax
Returns are true and correct in all material respects, and all taxes, charges
and other impositions reflected therein or otherwise due and payable have been
paid prior to the date on which any Liability may be added thereto for
non-payment thereof except for those contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves are maintained
on the books of the appropriate Tax Affiliate in accordance with GAAP.  As of the Second Restatement Closing Date, no
Tax Return is under audit or examination by any Governmental Authority and no
notice of such an audit or examination or any assertion of any claim for Taxes
has been given or made by any Governmental Authority.  Proper and accurate amounts have been
withheld by each Tax Affiliate from their respective employees for all periods
in full and complete compliance with the tax, social security and unemployment
withholding provisions of applicable Requirements of Law and such withholdings
have been timely paid to the respective Governmental Authorities.  No Tax Affiliate has participated in a “listed
transaction” within the meaning of Treasury Regulation Section 1.6011-4(b) or
has been a member of an affiliated, combined or unitary group other than the
group of which a Tax Affiliate is the common parent.


 


3.11         Financial Condition.


 


(a)           Each
of (i) the audited consolidated balance sheet of the Borrower and its
Subsidiaries dated December 31, 2008, and the related audited consolidated
statements of income or operations, shareholders’ equity and cash flows for the
fiscal year ended on that date and (ii) the unaudited interim consolidated
balance sheet of the Borrower and its Subsidiaries dated January 31, 2010:


 


(x)            were prepared in accordance
with GAAP consistently applied throughout the respective periods covered
thereby, except as otherwise expressly noted therein, subject to, in the case
of the unaudited interim financial statements, normal year-end adjustments and
the lack of footnote disclosures; and


 


(y)           present fairly in all
material respects the consolidated financial condition of the Borrower and its
Subsidiaries as of the dates thereof and results of operations for the periods
covered thereby.


 


(b)           Since
December 31, 2008 there has been no Material Adverse Effect.


 


32

















 


(c)           The
Credit Parties and their Subsidiaries have no Indebtedness other than
Indebtedness permitted pursuant to Section 5.5 and have no
Contingent Obligations other than Contingent Obligations permitted pursuant to Section 5.9.


 


(d)           All
financial performance projections delivered to the Agent represent the Borrower’s
good faith estimate of future financial performance and are based on
assumptions believed by the Borrower to be fair and reasonable in light of current
market conditions at the time of delivery of such projections, it being
acknowledged and agreed by the Agent and Lenders that projections as to future
events are not to be viewed as facts and that the actual results during the
period or periods covered by such projections may differ from the projected
results and that such differences may be material.  No representation is made with respect to
information of a general economic or industry specific nature.


 


3.12         Environmental Matters.  Except as set forth on Schedule 3.12, (a) the
operations of each Credit Party and each Subsidiary of each Credit Party are
and have been in compliance with all applicable Environmental Laws, including
obtaining, maintaining and complying with all Permits required by any applicable
Environmental Law, other than non-compliances that, in the aggregate, would not
have a reasonable likelihood of resulting in Material Environmental Liabilities
to any Credit Party or any Subsidiary of any Credit Party, (b) no Credit
Party and, to the knowledge of any Credit Party, no Subsidiary of any Credit
Party is party to, and no Credit Party and no Subsidiary of any Credit Party
and no real property currently owned, leased or subleased by any Credit Party
is subject to or the subject of, any pending (or, to the knowledge of any
Credit Party, threatened) order, action, investigation, suit, proceeding,
audit, claim, demand, dispute or notice of violation or of potential liability
under any Environmental Law other than those that, in the aggregate, are not
reasonably likely to result in Material Environmental Liabilities to any Credit
Party or any Subsidiary of any Credit Party, (c) no Lien in favor of any
Governmental Authority securing, in whole or in part, Environmental Liabilities
has attached to any owned property of any Credit Party or any Subsidiary of any
Credit Party and, to the knowledge of any Credit Party, no facts, circumstances
or conditions currently exist that could reasonably be expected to result in
any such Lien attaching to any such owned property, (d) no Credit Party
and no Subsidiary of any Credit Party has caused or suffered to occur a Release
of Hazardous Materials at, to or from any real property of any such Credit
Party or Subsidiary of any Credit Party at concentrations exceeding those
allowed by Environmental Laws and each such real property is free of
contamination by any Hazardous Materials except for such Release or
contamination that could not reasonably be expected to result, in the
aggregate, in Material Environmental Liabilities to any Credit Party or any
Subsidiary of any Credit Party in a fiscal year, (e) no Credit Party and
no Subsidiary of any Credit Party (i) is or has been engaged in, or has
knowingly permitted any current or former tenant to engage in, operations or (ii) knows
of any existing conditions, including receipt of any information request or
notice of potential responsibility under the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. §§ 9601 et seq.) or similar
Environmental Laws, that, in the aggregate, would have a reasonable likelihood
of resulting in Material Environmental Liabilities to any Credit


 


33

















 


Party or any Subsidiary of any Credit Party and (f) each Credit
Party has made available to Agent copies of all existing environmental reports,
reviews and audits and all material, non-privileged documents pertaining to
material Environmental Liabilities, in each case to the extent such reports,
reviews, audits and documents are in their possession, custody or control.


 


3.13         Regulated Entities.  None of any Credit Party, any Person
controlling any Credit Party, or any Subsidiary of any Credit Party, is (a) an
“investment company” within the meaning of the Investment Company Act of 1940
or (b) subject to any Federal or state statute, rule or regulation
limiting its ability to incur Indebtedness, pledge its assets or perform its
Obligations under the Loan Documents.


 


3.14         Solvency.  Both before and after giving effect to (a) the
Loans made and Letters of Credit Issued on or prior to the date this
representation and warranty is made or remade, (b) the disbursement of the
proceeds of such Loans and (c) the payment and accrual of all transaction
costs in connection with the foregoing, the Borrower and its Subsidiaries taken
as a whole are Solvent.


 


3.15         Labor Relations.  There are no strikes, work stoppages,
slowdowns or lockouts existing, pending (or, to the knowledge of any Credit
Party, threatened) against or involving any Credit Party or any Subsidiary of
any Credit Party, except for those that would not, in the aggregate, reasonably
be expected to have a Material Adverse Effect. 
Except as set forth on Schedule 3.15, as of the Second
Restatement Closing Date, (a) there is no collective bargaining or similar
agreement with any union, labor organization, works council or similar
representative covering any employee of any Credit Party or any Subsidiary of
any Credit Party, (b) no petition for certification or election of any
such representative is existing or pending with respect to any employee of any
Credit Party or any Subsidiary of any Credit Party and (c) no such
representative has sought certification or recognition with respect to any
employee of any Credit Party or any Subsidiary of any Credit Party.


 


3.16         Intellectual Property.  Each Credit Party and each Subsidiary of each
Credit Party owns, or is licensed to use, all Intellectual Property necessary
to conduct its business as currently conducted except for such Intellectual
Property the failure of which to own or license would not reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.  As of the Second Restatement
Closing Date, Schedule 3.16 sets forth all Intellectual Property owned
by or licensed to the Credit Parties and their Subsidiaries.  To the knowledge of each Credit Party, (a) the
conduct and operations of the businesses of each Credit Party and each
Subsidiary of each Credit Party does not infringe, misappropriate, dilute,
violate or otherwise impair any Intellectual Property owned by any other Person
and (b) no other Person has contested any right, title or interest of any
Credit Party or any Subsidiary of any Credit Party in, or relating to, any
Intellectual Property, other than, in each case, as cannot reasonably be
expected to affect the Loan Documents and the transactions contemplated therein
and would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


34

















 


3.17         Subsidiaries.  As of the Second Restatement Closing Date, no
Credit Party has any Subsidiaries or equity investments in any other
corporation or entity other than those specifically disclosed in Schedule
3.2.


 


3.18         Brokers’ Fees; Transaction
Fees.  Except as disclosed on Schedule
3.18 and except for fees payable to the Agent and Lenders, none of the
Credit Parties or any of their respective Subsidiaries has any obligation to
any Person in respect of any finder’s, broker’s or investment banker’s fee in
connection with the transactions contemplated hereby.


 


3.19         Insurance.  Each of the Credit Parties and each of their
respective Subsidiaries and their respective Properties are insured with
financially sound and reputable insurance companies which are not Affiliates of
the Borrower, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar Properties in localities where such Person operates.  A true and complete listing of such
insurance, including issuers, coverages and deductibles, has been provided to
the Agent.


 


3.20         Full Disclosure.  None of the representations or warranties
made by any Credit Party or any of their Subsidiaries in the Loan Documents as
of the date such representations and warranties are made or deemed made, and
none of the statements (other than projections, forward looking information,
third party general industry data and information of a general economic nature)
contained in each exhibit, report, statement or certificate furnished by or on
behalf of any Credit Party or any of their Subsidiaries in connection with the
Loan Documents (including the offering and disclosure materials, if any,
delivered by or on behalf of any Credit Party to the Lenders prior to the
Second Restatement Closing Date), contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein.


 


3.21         Foreign Assets Control Regulations
and Anti-Money Laundering.


 


(a)           OFAC.  Neither any Credit
Party nor any Subsidiary of any Credit Party (i) is a person whose
property or interest in property is blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism (66 Fed. Reg. 49079 (2001)), (ii) engages in any
dealings or transactions prohibited by Section 2 of such executive order,
or is otherwise associated with any such person in any manner violative of Section 2,
or (iii) is a person on the list of Specially Designated Nationals and
Blocked Persons or subject to the limitations or prohibitions under any other
U.S. Department of Treasury’s Office of Foreign Assets Control regulation or
executive order.


 


(b)           Patriot
Act; FCPA.  Each of the Credit Parties and each of their
respective Subsidiaries are in compliance, in all material respects, with the
Patriot Act.  Each of the Credit Parties
and each of their respective Subsidiaries are in compliance, in all material
respects, with the United States Foreign Corrupt Practices Act of 1977, as
amended.


 


35














 


ARTICLE IV.

AFFIRMATIVE COVENANTS


 


Each Credit Party covenants
and agrees that, so long as any Lender shall have any Revolving Loan Commitment
hereunder, or any Loan or other Obligation (other than contingent
indemnification Obligations to the extent no claim giving rise thereto has been
asserted) shall remain unpaid or unsatisfied (unless the Required Lenders, or
such other Lenders as required under this Agreement, shall otherwise consent in
writing):


 


4.1                                 Financial
Statements.  Each Credit
Party shall maintain, and shall cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit the preparation of financial statements in
conformity with GAAP (provided that monthly financial statements shall not be
required to have footnote disclosures and are subject to normal year-end
adjustments).  The Borrower shall deliver
to the Agent and each Lender in electronic form and in detail reasonably
satisfactory to the Agent and the Required Lenders:


 


(a)                                  as soon as available, but not later than one hundred five
(105) days after the end of each fiscal year, a copy of the audited
consolidated and consolidating balance sheets of the Borrower and each of its
Subsidiaries as at the end of such year and the related consolidated and
consolidating statements of income or operations, shareholders’ equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, and accompanied by the unqualified
opinion of any “Big Four” or other nationally-recognized independent public
accounting firm reasonably acceptable to the Agent which report shall state
that such consolidated financial statements present fairly in all material
respects the financial position for the periods indicated in conformity with
GAAP applied on a basis consistent with prior years; and


 


(b)                                 as soon as available, but not later than thirty (30) days
after the end of each fiscal month of each year (provided, however, to the
extent delivered for a month ending on the last day of a fiscal quarter, not
later than forty five (45) days after the end of each such fiscal month), a
copy of the unaudited consolidated and consolidating balance sheets of the
Borrower and each of its Subsidiaries, and the related consolidated and
consolidating statements of income, shareholders’ equity and cash flows as of
the end of such month and for the portion of the fiscal year then ended, all
certified on behalf of the Borrower by an appropriate Responsible Officer as
being complete and correct and fairly presenting, in all material respects, in
accordance with GAAP, the financial position and the results of operations of
the Borrower and its Subsidiaries, subject to normal year-end adjustments and
absence of footnote disclosures.


 


36

















 


4.2                                 Certificates;
Other Information.  The
Borrower shall furnish to the Agent and each Lender:


 


(a)                                  together with each delivery of financial statements pursuant to
subsections 4.1(a) and (b) (to the extent delivered for a month
ending on the last day of a fiscal quarter), (i) a management report, in
reasonable detail, signed by the chief financial officer of the Borrower,
describing the operations and financial condition of the Credit Parties and
their Subsidiaries for the month and the portion of the fiscal year then ended
(or for the fiscal year then ended in the case of annual financial statements),
and (ii) a report setting forth in comparative form the corresponding
figures for the corresponding periods of the previous fiscal year and the
corresponding figures from the most recent projections for the current fiscal
year delivered pursuant to subsection 4.2(e) and discussing the reasons
for any significant variations;


 


(b)                                 concurrently with the delivery of the financial statements
referred to in subsections 4.1(a) and 4.1(b) (to the extent ending on
the last day of a fiscal quarter), a fully and properly completed Compliance
Certificate in the form of Exhibit 4.2(b), certified on behalf of
the Borrower by a Responsible Officer;


 


(c)                                  promptly after the same are sent, copies of all financial
statements and reports which any Credit Party sends to its shareholders or
other equity holders, as applicable, generally and promptly after the same are
filed, copies of all financial statements and regular, periodic or special
reports which such Person may make to, or file with, the Securities and
Exchange Commission or any successor or similar Governmental Authority;


 


(d)                                 (i) concurrently with the delivery of the financial
statements pursuant to subsection 4.1(b) and (ii) not later than two (2) Business
Days prior to the consummation of an Acquisition (whether or not such
Acquisition is to be financed, in whole or in part, with proceeds of Loans) an
Availability Certificate executed on Borrower’s behalf by a Responsible
Officer, as at the end of the most-recently ended fiscal month or as at such
other date as the Agent may reasonably require;


 


(e)                                  as soon as available and in any event no later than the last
day of each fiscal year of the Borrower, projections of the Credit Parties (and
their Subsidiaries’) consolidated and consolidating financial performance for
the forthcoming three fiscal years on a year by year basis, and for the
forthcoming fiscal year on a month by month basis;


 


(f)                                    promptly upon receipt thereof, copies of any reports
submitted by the certified public accountants in connection with each annual,
interim or special audit or review of any type of the financial statements or
internal control systems of any Credit Party made by such accountants,
including any comment letters submitted by such accountants to management of
any Credit Party in connection with their services;


 


37

















 


(g)                                 from time to time, if the Agent determines that obtaining
appraisals is necessary in order for the Agent or any Lender to comply with
applicable laws or regulations or if the Agent determines in its good faith
credit judgment that obtaining such appraisals is important in connection with
the administration of the credit facility established pursuant to this
Agreement, and at any time if an Event of Default shall have occurred and be
continuing, the Agent may, or may require the Borrower to, in either case at
the Borrower’s expense, obtain appraisals in form and substance and from
appraisers reasonably satisfactory to the Agent stating the then current fair
market value of all or any portion of the real or personal property of any
Credit Party or any Subsidiary of any Credit Party;


 


(h)                                 Borrower, at its own expense, shall deliver to Agent such
appraisals of its assets as Agent may request at any time after the occurrence
and during the continuance of an Event of Default, such appraisals to be conducted
by an appraiser, and in form and substance reasonably satisfactory to Agent;


 


(i)                                     together with each delivery of any Compliance Certificate
pursuant to clause (b) above, a summary of the outstanding balances of all
intercompany Indebtedness for the Credit Parties and their Subsidiaries as of
the last day of the fiscal quarter covered by such Financial Statements,
certified as complete and correct by a Responsible Officer of the Borrower as
part of the Compliance Certificate delivered in connection with such Financial
Statements; and


 


(j)                                     promptly, such additional business, financial, corporate
affairs, perfection certificates and other information as the Agent may from
time to time reasonably request.


 


4.3                                 Notices.  The Borrower shall notify promptly the Agent
of each of the following (and in no event later than three (3) Business
Days after a Responsible Officer becoming aware thereof):


 


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


 


(b)                                 any breach or non-performance of, or any default under, any
Contractual Obligation of any Credit Party or any Subsidiary of any Credit
Party, or any violation of, or non-compliance with, any Requirement of Law,
which, in each case, would reasonably be expected to result, either
individually or in the aggregate, in a Material Adverse Effect, including a
description of such breach, non-performance, default, violation or
non-compliance and the steps, if any, such Person has taken, is taking or
proposes to take in respect thereof;


 


(c)                                  any dispute, litigation, investigation, proceeding or
suspension which may exist at any time between any Credit Party or any
Subsidiary of any Credit Party and any Governmental Authority which would
reasonably be expected to result, either individually or in the aggregate, in a
Material Adverse Effect;


 


38

















 


(d)                                 the commencement of, or any material development in, any
litigation or proceeding affecting any Credit Party or any Subsidiary of any
Credit Party (i) in which the amount of damages claimed is $2,500,000 (or
its equivalent in another currency or currencies) or more, (ii) in which
injunctive or similar relief is sought and which, if adversely determined,
would reasonably be expected to have a Material Adverse Effect, or (iii) in
which the relief sought is an injunction or other stay of the performance of
this Agreement or any Loan Document;


 


(e)                                  (i) the receipt by any Credit Party of any notice of
violation of or potential liability or similar notice under Environmental Law,
(ii)(A) unpermitted Releases, (B) the existence of any condition that
could reasonably be expected to result in violations of or liabilities under,
any Environmental Law or (C) the commencement of, or any material change
to, any action, investigation, suit, proceeding, audit, claim, demand, dispute
alleging a violation of or liability under any Environmental Law, that, for
each of clauses (A), (B) and (C) above (and, in the case of clause
(C), if adversely determined), in the aggregate for all such clauses, could
reasonably be expected to result in Environmental Liabilities in excess of
$500,000, (iii) the receipt by any Credit Party of notification that any
property of any Credit Party is subject to any Lien in favor of any
Governmental Authority securing, in whole or in part, Environmental Liabilities
and (iv) any proposed acquisition or lease of real property, if such
acquisition or lease would have a reasonable likelihood of resulting in
aggregate Environmental Liabilities in excess of $500,000;


 


(f)                                    (i) on or prior to any filing by any ERISA Affiliate of
any notice of intent to terminate any Title IV Plan, a copy of such notice and (ii) promptly,
and in any event within 10 days, after any officer of any ERISA Affiliate knows
or has reason to know that a request for a minimum funding waiver under Section 412
of the Code has been filed with respect to any Title IV Plan or Multiemployer
Plan, a notice (which may be made by telephone if promptly confirmed in
writing) describing such waiver request and any action that any ERISA Affiliate
proposes to take with respect thereto, together with a copy of any notice filed
with the PBGC or the IRS pertaining thereto;


 


(g)                                 any Material Adverse Effect subsequent to the date of the
most recent audited financial statements delivered to the Agent and Lenders
pursuant to this Agreement;


 


(h)                                 any material change in accounting policies or financial
reporting practices by any Credit Party or any Subsidiary of any Credit Party;


 


(i)                                     any labor controversy resulting in or threatening to result
in any strike, work stoppage, boycott, shutdown or other labor disruption
against or involving any Credit Party or any Subsidiary of any Credit Party if
the same would reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect;


 


39

















 


(j)                                     the creation, establishment or acquisition of any Subsidiary
or the issuance by or to any Credit Party of any Stock or Stock Equivalent;


 


(k)                          (i) the
creation, or filing with the IRS or any other Governmental Authority, of any
Contractual Obligation or other document extending, or having the effect of
extending, the period for assessment or collection of any taxes with respect to
any Tax Affiliate and (ii) the creation of any Contractual Obligation of
any Tax Affiliate, or the receipt of any request directed to any Tax Affiliate,
to make any adjustment under Section 481(a) of the Code, by reason of
a change in accounting method or otherwise, which would have a Material Adverse
Effect; and 


 


Each notice pursuant to this Section shall
be in electronic form accompanied by a statement by a Responsible Officer on
behalf of the Borrower setting forth details of the occurrence referred to
therein, and stating what action the Borrower or other Person proposes to take
with respect thereto and at what time. 
Each notice under subsection 4.3(a) shall describe with reasonable
particularity any and all clauses or provisions of this Agreement or other Loan
Document that have been breached or violated.


 


4.4                                 Preservation of
Corporate Existence, Etc.  Each
Credit Party shall, and shall cause each of its Subsidiaries to:


 


(a)                                  preserve and maintain in full force and effect its
organizational existence and good standing under the laws of its jurisdiction
of incorporation, organization or formation, as applicable, except in
connection with transactions permitted by Section 5.3;


 


(b)                                 preserve and maintain in full force and effect all rights,
privileges, qualifications, permits, licenses and franchises necessary in the
normal conduct of its business except in connection with transactions permitted
by Section 5.3 and sales of assets permitted by Section 5.2
and except as would not reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect;


 


(c)                                  use its reasonable efforts, in the Ordinary Course of
Business, to preserve its business organization and preserve the goodwill and
business of the customers, suppliers and others having business relations with
it except where the failure to do so could not reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect; and


 


(d)                                 preserve or renew all of its registered trademarks, trade
names and service marks, the non-preservation of which would reasonably be
expected to have, either individually or in the aggregate, a Material Adverse
Effect.


 


4.5                                 Maintenance of
Property.  Each Credit
Party shall maintain, and shall cause each of its Subsidiaries to maintain, and
preserve all its Property which is used in its business in good working order
and condition, ordinary wear and tear excepted and shall make all necessary 


 


40

















 


repairs thereto and renewals and replacements thereof except where the
failure to do so would not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect.


 


4.6                                 Insurance.


 


(a)                                  Each Credit Party shall, and shall cause each of its
Subsidiaries to, (i) maintain or cause to be maintained in full force and
effect all policies of insurance of any kind with respect to the property and
businesses of the Credit Parties and such Subsidiaries (including policies of
life, fire, theft, product liability, public liability, property damage, other
casualty, employee fidelity, workers’ compensation, business interruption and
employee health and welfare insurance) with financially sound and reputable
insurance companies or associations (in each case that are not Affiliates of
Borrower) of a nature and providing such coverage as is sufficient and as is
customarily carried by businesses of the size and character of the business of
the Credit Parties and  reasonably
acceptable to Agent and (ii) cause all such insurance relating to any
property or business of any Credit Party to name Agent as additional insured or
loss payee, as appropriate.  All policies
of insurance on real and personal property of the Credit Parties will contain
an endorsement, in form and substance acceptable to Agent, showing loss payable
to Agent (Form 438 BFU or equivalent). 
Such endorsement, or an independent instrument furnished to Agent, will
provide that the insurance companies will give Agent at least 30 days’ prior
written notice before any such policy or policies of insurance shall be altered
or canceled and that no act or default of Borrower or any other Person shall
affect the right of Agent to recover under such policy or policies of insurance
in case of loss or damage.  Each Credit
Party shall direct all present and future insurers under its “All Risk”
policies of insurance to pay all proceeds payable thereunder directly to
Agent.  If any insurance proceeds are
paid by check, draft or other instrument payable to any Credit Party and Agent
jointly, Agent may endorse such Credit Party’s name thereon and Agent will
apply the proceeds thereof to the Obligations in accordance with the terms of
this Agreement and the other Loan Documents. 
Agent reserves the right at any time, upon its review of each Credit
Party’s risk profile, to, in its good faith credit judgment, require additional
forms and limits of insurance.


 


(b)                                 Unless the Borrower provides the Agent with evidence of the
insurance coverage required by this Agreement, the Agent may purchase insurance
at the Credit Parties’ expense to protect the Agent’s and Lenders’ interests in
the Credit Parties’ and their Subsidiaries’ properties which are material to
the conduct of their respective business. 
This insurance may, but need not, protect the Credit Parties’ and their
Subsidiaries’ interests.   The coverage
that the Agent purchases may not pay any claim that any Credit Party or any
Subsidiary of any Credit Party makes or any claim that is made against such
Credit Party or any Subsidiary in connection with said Property.  The Borrower may later cancel any insurance
purchased by the Agent, but only after providing the Agent with evidence that
there has been obtained insurance as required by this Agreement.  If the Agent purchases insurance, the Credit
Parties will be responsible for the costs of that insurance, including interest
and any other charges the Agent may impose in connection with the placement of
insurance, until the 


 


41

















 


effective
date of the cancellation or expiration of the insurance. The costs of the
insurance shall be added to the Obligations. 
The costs of the insurance may be more than the cost of insurance the
Borrower may be able to obtain on its own.


 


4.7                                 Payment of
Obligations.  Such Credit
Party shall, and shall cause each of its Subsidiaries to, pay, discharge and
perform as the same shall become due and payable or required to be performed,
all their respective obligations and liabilities, including:


 


(a)                                  all tax liabilities, assessments and governmental charges or
levies upon it or its properties or assets and all lawful claims which, if
unpaid, would by law become a Lien upon its Property, unless (i) the
aggregate amount of all such tax liabilities, assessments, governmental charges
or levies, or lawful claims does not exceed $500,000 and adequate reserves in
accordance with GAAP are being maintained by such Person with respect to such
amount or (ii) the same are being contested in good faith by appropriate
proceedings diligently prosecuted which stay the enforcement of any Lien and
for which adequate reserves in accordance with GAAP are being maintained by
such Person;


 


(b)                                 all Indebtedness (except for any Indebtedness having an
aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit agreement) of less than $3,500,000), as and when due and payable, but
subject to any subordination provisions contained herein and/or in any
instrument or agreement evidencing such Indebtedness; and


 


(c)                                  the performance of all obligations under any Contractual
Obligation to such Credit Party or any of its Subsidiaries is bound, or to
which it or any of its properties is subject, except where the failure to
perform would not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.


 


4.8                                 Compliance with
Laws.


 


(a)                                  Each Credit Party shall, and shall cause each of its
Subsidiaries to, comply with all applicable Requirements of Law of any
Governmental Authority having jurisdiction over it or its business, except
where the failure to comply would not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.


 


(b)                                 Without limiting the generality of the foregoing, each Credit
Party shall, and shall cause each of its Subsidiaries to, comply with, and
maintain its real property, whether owned, leased, or subleased, in compliance
with, all applicable Environmental Laws (including by implementing any Remedial
Action necessary to achieve such compliance or that is required by orders and
directives of any Governmental Authority) except for failures to comply that
would not, in the aggregate, have a Material Adverse Effect.  Without limiting the foregoing, if an Event
of Default is continuing or if Agent at any time has a reasonable basis to
believe that there exist violations of Environmental Laws by any Credit Party
or any Subsidiary of any 


 


42

















 


Credit
Party or that there exist any Environmental Liabilities, in each case, that
would have, in the aggregate, a Material Adverse Effect, then each Credit Party
shall, promptly upon receipt of request from Agent, cause the performance of,
and allow Agent and its Related Persons access to such real property for the
purpose of conducting, such environmental audits and assessments, including
subsurface sampling of soil and groundwater, and cause the preparation of such
reports, in each case as Agent may from time to time reasonably request,
provided such assessments are undertaken in accordance with the terms and
conditions of any applicable lease or sublease and in compliance with
applicable law; provided such assessments are conducted by a qualified
environmental firm in compliance with applicable laws and without unreasonable
interruption of site operations.  Such
audits, assessments and reports, to the extent not conducted by Agent or any of
its Related Persons, shall be conducted and prepared by reputable environmental
consulting firms reasonably acceptable to Agent and shall be in form and
substance reasonably acceptable to Agent.


 


4.9                                 Inspection of
Property and Books and Records.  Each Credit Party shall maintain and shall
cause each of its Subsidiaries to maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of such Person.  Each
Credit Party shall, and shall cause each of its Subsidiaries to, with respect
to each owned, leased, or controlled property, during normal business hours and
upon reasonable advance notice: (a) provide access to such property to
Agent and any of its Related Persons, as frequently as Agent determines to be
appropriate; (b) permit Agent and any of its Related Persons to inspect,
audit and make extracts and copies from all of such Credit Party’s books and
records; and (c) permit Agent to inspect, review, evaluate and make
physical verifications and appraisals of the inventory and other Collateral in
any manner and through any medium that Agent considers advisable, in each
instance, at the Credit Parties’ expense provided the Credit Parties shall not
be responsible for costs and expenses more than one time per year unless an
Event of Default has occurred and is continuing.  Notwithstanding the foregoing, if, at any
time an Event of Default shall have occurred and be continuing, access is
necessary to preserve or protect the Collateral as determined by Agent in its
good faith credit judgment, each such Credit Party shall provide such access to
Agent and to each Lender at all times and without advance notice.  Any Lender may accompany Agent in connection
with any inspection at such Lender’s expense.


 


4.10                           Use of Proceeds.  The Borrower shall use the proceeds of the
Loans solely as follows: (a) to pay costs and expenses required to be paid
hereunder, (b) to finance Permitted Acquisitions, (c) to pay accrued
and unpaid interest owing under the Existing Credit Agreement and (d) for
working capital and other general corporate purposes not in contravention of
any Requirement of Law and not in violation of this Agreement.


 


4.11                           Cash Management
Systems.  Each Credit Party shall, and
shall cause each Domestic Subsidiary of each Credit Party to, enter into, and
cause each depository, securities intermediary or commodities intermediary to
enter into, Control Agreements with respect to each deposit, securities,
commodity or similar account maintained by such Person (other than any 


 


43

















 


payroll account so long as such payroll account is a zero balance
account and withholding tax and fiduciary accounts) providing springing cash
dominion, exercisable upon the occurrence of a Default or Event of Default,  to Agent in the case of deposit accounts  as of or after the Second Restatement Closing Date.


 


4.12                           Landlord
Agreements.  To the
extent requested by the Agent or any Lender, each Credit Party shall, and shall
cause each of its Domestic Subsidiaries to, obtain a landlord agreement or
bailee or mortgagee waivers, as applicable, from the lessor of each leased
property, bailee in possession of any Collateral or mortgage of any owned
property with respect to each location where any Collateral is stored or
located, which agreement shall be reasonably satisfactory in form and substance
to Agent.


 


4.13                           Further
Assurances; Security Interests.


 


(a)                                  Each Credit Party shall ensure that all written information,
exhibits and reports furnished to the Agent or the Lenders do not and will not
contain any untrue statement of a material fact and do not and will not omit to
state any material fact or any fact necessary to make the statements contained
therein not misleading in light of the circumstances in which made, and will
promptly disclose to the Agent and the Lenders and correct any defect or error
that may be discovered therein or in any Loan Document or in the execution,
acknowledgement or recordation thereof.


 


(b)                                 Promptly upon request by the Agent, the Credit Parties shall
(and, subject to the limitations hereinafter set forth, shall cause each of
their Subsidiaries to) take such additional actions as the Agent may reasonably
require from time to time in order (i) to subject to the Liens created by
any of the Collateral Documents any of the Properties, rights or interests
covered by any of the Collateral Documents, (ii) to perfect and maintain
the validity, effectiveness and priority of any of the Collateral Documents and
the Liens intended to be created thereby, and (iii) to better assure,
convey, grant, assign, transfer, preserve, protect and confirm to the Agent and
Lenders the rights granted or now or hereafter intended to be granted to the
Agent and the Lenders under any Loan Document or under any other document
executed in connection therewith. 
Without limiting the generality of the foregoing and except as otherwise
approved in writing by the Required Lenders, the Credit Parties shall cause
each of their Domestic Subsidiaries to guaranty the Obligations and to cause
each such Subsidiary to grant to the Agent, for the benefit of the Agent and
Lenders, a security interest in, subject to the limitations hereinafter set
forth, all of such Subsidiary’s Property to secure such guaranty.  Furthermore and except as otherwise approved
in writing by the Required Lenders, each Credit Party shall, and shall cause
each of its Domestic Subsidiaries to, pledge all of the Stock and Stock
Equivalents of each of its Domestic Subsidiaries and First Tier Foreign
Subsidiaries (provided that with respect to any First Tier Foreign Subsidiary,
such pledge shall be limited to sixty-five percent (65%) of such Foreign
Subsidiary’s outstanding voting Stock and Stock Equivalents and one hundred
percent (100%) of such Foreign Subsidiary’s outstanding non-voting Stock and
Stock Equivalents), to the Agent, for the benefit of the Agent and Lenders, to 


 


44

















 


secure the
Obligations.  In connection with each
pledge of Stock and Stock Equivalents, the Credit Parties shall deliver, or
cause to be delivered, to the Agent, irrevocable proxies and stock powers
and/or assignments, as applicable, duly executed in blank.  In the event any Credit Party or any Domestic
Subsidiary of any Credit Party acquires any real Property, within 30 days (or
such longer period of time as the Agent may agree) after the closing of such
acquisition, such Person shall execute and/or deliver, or cause to be executed
and/or delivered, to the Agent, (x) a fully executed Mortgage, in form and
substance reasonably satisfactory to the Agent together with an A.L.T.A. lender’s
title insurance policy issued by a title insurer reasonably satisfactory to the
Agent, in form and substance and in an amount reasonably satisfactory to the
Agent insuring that the Mortgage is a valid and enforceable first priority Lien
on the respective property, free and clear of all defects, encumbrances and
Liens, (y) then current A.L.T.A. surveys, certified to the Agent and the
Lenders by a licensed surveyor sufficient to allow the issuer of the lender’s
title insurance policy to issue such policy without a survey exception and (z) an
environmental site assessment prepared by a qualified firm reasonably
acceptable to the Agent, in form and substance satisfactory to the Agent.


 


ARTICLE V.

NEGATIVE COVENANTS


 


Each Credit Party covenants
and agrees that, so long as any Lender shall have any Revolving Loan Commitment
hereunder, or any Loan or other Obligation (other than contingent
indemnification Obligations to the extent no claim giving rise thereto has been
asserted) shall remain unpaid or unsatisfied:


 


5.1                                 Limitation on
Liens.  No Credit Party shall, and no
Credit Party shall suffer or permit any of its Subsidiaries to, directly or
indirectly, make, create, incur, assume or suffer to exist any Lien upon or
with respect to any part of its Property, whether now owned or hereafter
acquired, other than the following (“Permitted Liens”):


 


(a)                                  any Lien existing on the Property of a Credit Party or a Subsidiary
of a Credit Party on the Second Restatement Closing Date and set forth in Schedule
5.1 securing Indebtedness outstanding on such date and permitted by Section 5.5(c),
including replacement Liens on the Property currently subject to such Liens securing
Indebtedness permitted by Section 5.5(c);


 


(b)                                 any Lien created under any Loan Document;


 


(c)                                  Liens for taxes, fees, assessments or other governmental
charges (i) which are not delinquent or remain payable without penalty, or
(ii) the non-payment of which is permitted by Section 4.7;


 


(d)                                 carriers’, warehousemen’s, mechanics’, landlords’,
materialmen’s, repairmen’s or other similar Liens arising in the Ordinary
Course of Business which are not


 


45














 


delinquent
for more than ninety (90) days or remain payable without penalty or which are
being contested in good faith and by appropriate proceedings diligently
prosecuted, which proceedings have the effect of preventing the forfeiture or
sale of the Property subject thereto and for which adequate reserves in
accordance with GAAP are being maintained;


 


(e)                                  Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the Ordinary Course of Business in connection
with workers’ compensation, unemployment insurance and other social security
legislation or to secure the performance of tenders, statutory obligations,
surety, stay, customs and appeals bonds, bids, leases, governmental contract,
trade contracts, performance and return of money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money) or to
secure liability to insurance carriers;


 


(f)                                    Liens arising out of judgments, attachments or awards or
securing appeal or other surety bonds relating to such judgments not resulting
in an Event of Default under Section 7.1(h);


 


(g)                                 easements, rights-of-way, zoning and other restrictions,
minor defects or other irregularities in title, and other similar encumbrances
incurred in the Ordinary Course of Business which, either individually or in
the aggregate, and which do not in any case materially detract from the value
of the Property subject thereto or interfere in any material respect with the
ordinary conduct of the businesses of any Credit Party or any Subsidiary of any
Credit Party;


 


(h)                                 Liens on any Property acquired or held by any Credit Party or
any Subsidiary of any Credit Party securing Indebtedness incurred or assumed
for the purpose of financing (or refinancing) all or any part of the cost of
acquiring such Property and permitted under subsection 5.5(d); provided  that
(i) any such Lien attaches to such Property concurrently with or within
twenty (20) days after the acquisition thereof, (ii) such Lien attaches
solely to the Property so acquired in such transaction, and (iii) the
principal amount of the debt secured thereby does not exceed 100% of the cost
of such Property;


 


(i)                                     Liens securing Capital Lease Obligations permitted under
subsection 5.5(d);


 


(j)                                     any interest or title of a lessor or sublessor under any
lease to the extent not interfering in any material respect with the business
of the Credit Parties or any of their Subsidiaries;


 


(k)                                  Liens arising from precautionary uniform commercial code
financing statements (or similar filings under applicable law) filed under any
lease entered into in the Ordinary Course of Business;


 


46

















 


(l)                                     licenses, sublicenses, leases or subleases granted to third
parties in the Ordinary Course of Business not interfering in any material
respect with the business of the Credit Parties or any of their Subsidiaries;


 


(m)                               Liens in favor of collecting banks arising under Section 4-210
of the UCC;


 


(n)                                 Liens (including the right of set-off) in favor of a bank or
other depository institution arising as a matter of law encumbering deposits;


 


(o)                                 Liens arising out of conditional sale, title retention,
consignment or similar arrangements (and any precautionary Uniform Commercial
Code financing statements made in connection therewith) for the sale of goods
entered into by any Credit Party or any of their Subsidiaries in the Ordinary
Course of Business;


 


(p)                                 Liens in favor of customs and revenue authorities arising as
a matter of law which secure payment of customs duties in connection with the
importation of goods in the Ordinary Course of Business;


 


(q)                                 licenses of Intellectual Property granted by the Credit
Parties or any of their Subsidiaries in the Ordinary Course of Business and not
interfering in any material respect with the ordinary conduct of business of
the Credit Parties and their Subsidiaries;


 


(r)                                    Liens securing Indebtedness of any Foreign Subsidiary
incurred pursuant to Section 5.5(f); provided that (i) such
Liens do not extend to, or encumber, property which constitutes Collateral and (ii) such
Liens extend only to the property (or Equity Interests) of the Foreign
Subsidiary incurring such Indebtedness; provided, however, that
no consensual Liens shall be permitted to exist, directly or indirectly, on any
Equity Interests constituting Collateral, other than Liens granted pursuant to
the Collateral Documents;


 


(s)                                  Liens (i) on advances of cash or Cash Equivalents in
favor of the seller of any property to be acquired in any Permitted Acquisition
or any other Investment permitted by this Agreement to be applied against the
purchase price for such Permitted Acquisition or Investment, (ii) consisting
of an agreement to dispose of any property in a permitted Disposition and (iii) on
earnest money deposits of cash or Cash Equivalents made by the Credit Parties
or any of their Subsidiaries in connection with any letter of intent or
purchase agreement permitted hereunder; and


 


(t)                                    Liens securing Indebtedness permitted under Section 5.5(j);
provided such Liens are subordinated to the Liens of Agent under the Loan
Documents pursuant to an intercreditor agreement in form and substance
satisfactory to Agent; and


 


47

















 


(u)                                 Liens in favor of Fulbright & Jaworski L.L.P. on the
SAP Claims securing fees, if any, owing to Fulbright & Jaworski L.L.P.
in connection with its representation of the Borrower with respect to the SAP
Claims, provided such Liens are subject to an intercreditor agreement between
Agent and Fulbright & Jaworski L.L.P.


 


5.2                                 Disposition of
Assets.  No Credit Party shall, and no
Credit Party shall suffer or permit any of its Subsidiaries to, directly or
indirectly, sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of transactions) any Property (including accounts
and notes receivable, with or without recourse) or enter into any agreement to
do any of the foregoing, except:


 


(a)                                  dispositions of inventory, or used, obsolete, worn-out or
surplus equipment or any equipment no longer useful in the conduct of the
business of the Credit Parties and their Subsidiaries taken as a whole, all in
the Ordinary Course of Business and the abandonment or other disposition of
Intellectual Property that is, in the reasonable judgment of Borrower, no
longer economically practicable to maintain or useful in the conduct of the
business of the Credit Parties and their Subsidiaries taken as a whole;


 


(b)                                 dispositions not otherwise permitted hereunder which are made
for fair market value and the mandatory prepayment in the amount of the Net
Proceeds of such disposition is made if and to the extent required by Section 1.8;
provided, that (i) at the time of any disposition, no Event of
Default shall exist or shall result from such disposition, (ii) not less than
80% of the aggregate sales price from such disposition shall be paid in cash, (iii) the
aggregate fair market value of all assets so sold by the Credit Parties and
their Subsidiaries, together, shall not exceed in any fiscal year $5,000,000
and (iv) after giving effect to such disposition, the Credit Parties are
in compliance on a pro forma basis with the covenants set forth in Article VI,
recomputed for the most recent quarter for which financial statements have been
delivered;


 


(c)                                  dispositions of Cash Equivalents;


 


(d)                                 licenses, sublicenses, leases or subleases granted to third
parties in the Ordinary Course of Business not interfering in any material
respect with the business of the Credit Parties or any of their Subsidiaries;


 


(e)                                  mergers and consolidations in compliance with Section 5.3;


 


(f)                                    Investments in compliance with Section 5.4;


 


(g)                                 any Subsidiary of a Credit Party may dispose of any or all of
its assets to Borrower or any Credit Party;


 


48

















 


(h)                                 any Subsidiary of a Credit Party (that is not a Credit Party)
may dispose of any or all of its assets to another Subsidiary of a Credit Party
(that is not a Credit Party);


 


(i)                                     the disposition of Property as a result of an Event of Loss;


 


(j)                                     dispositions of accounts receivable in connection with the
collection or compromise thereof in the Ordinary Course of Business in an
amount not to exceed $500,000 in the aggregate during the term of this
Agreement; and


 


(k)                                  dispositions of tangible property, in an amount not to exceed
$1,000,000 in the aggregate during the term of this Agreement, to the extent
that such property is exchanged for credit against the purchase price of
similar replacement property of reasonably equivalent value and Agent has a
valid lien and security interest in such replacement property.


 


To the extent the Required
Lenders waive the provisions of this Section 5.2 with respect to
the sale of any Collateral, or any Collateral is sold as permitted by this Section 5.2,
such Collateral (unless sold to a Credit Party) shall be sold free and clear of
the Liens created by the Collateral Documents, and the Agent shall take all
actions they deem appropriate in order to effect the foregoing.


 


5.3                                 Consolidations
and Mergers.  No Credit
Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries
to, merge, consolidate with or into, or convey, transfer, lease or otherwise
dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or
in favor of any Person, except upon not less than five (5) Business Days
prior written notice to the Agent:


 


(a)                                  any Subsidiary of the Borrower may merge with, or dissolve or
liquidate into, the Borrower or a Wholly-Owned Subsidiary of the Borrower which
is a Domestic Subsidiary, provided that the Borrower or such Wholly-Owned
Subsidiary which is a Domestic Subsidiary, as applicable, shall be the
continuing or surviving entity;


 


(b)                                 any Foreign Subsidiary of the Borrower may merge with or
dissolve or liquidate into another Foreign Subsidiary of the Borrower provided
if a First Tier Foreign Subsidiary is a constituent entity in such merger,
dissolution or liquidation, such First Tier Foreign Subsidiary shall be the continuing
or surviving entity;


 


(c)                                  dispositions in compliance with Section 5.2; and


 


(d)                                 a merger or consolidation in connection with a Permitted
Acquisition permitted under Section 5.4(h), so long as the Borrower
or another Credit Party is the surviving entity in such merger or
consolidation.


 


49

















 


To the extent the Required
Lenders waive the provisions of this Section 5.3 with respect to
the sale of any Collateral, or any Collateral is sold as permitted by this Section 5.3,
such Collateral (unless sold to a Credit Party) shall be sold free and clear of
the Liens created by the Collateral Documents, and the Agent shall take all
actions they deem appropriate in order to effect the foregoing.


 


5.4                                 Loans and Investments.  No Credit Party shall and no Credit Party
shall suffer or permit any of its Subsidiaries to (i) purchase or acquire,
or make any commitment to purchase or acquire any Stock or Stock Equivalents,
or any obligations or other securities of, or any interest in, any Person, or (ii) make
or commit to make any Acquisitions, or any other acquisition of all or
substantially all of the assets of another Person, or of any business or
division of any Person, including without limitation, by way of merger, consolidation
or other combination or (iii) make or commit to make any advance, loan,
extension of credit or capital contribution to or any other investment in, any
Person (the items described in clauses (i), (ii) and (iii) are
referred to as “Investments”), except for:


 


(a)                                  Investments in cash and Cash Equivalents;


 


(b)                                 extensions of credit by (i) any Credit Party to any
other Credit Party, (ii) the Borrower or any Domestic Subsidiary of the
Borrower to Foreign Subsidiaries of the Borrower not to exceed $10,000,000 in
the aggregate at any time outstanding for all such extensions of credit
provided, if the extensions of credit described in foregoing clauses (i) and
(ii) are evidenced by notes, such notes shall be pledged and delivered to
the Agent, for the benefit of the Agent and Lenders, and have such terms as the
Agent may reasonably require and (iii) a Foreign Subsidiary of the
Borrower to another Foreign Subsidiary of the Borrower;


 


(c)                                  loans and advances to directors, employees and officers in
the Ordinary Course of Business not to exceed $1,000,000  in
the aggregate at any time outstanding;


 


(d)                                 Investments received as the non-cash portion of consideration
received in connection with transactions permitted pursuant to Section 5.2;


 


(e)                                  Investments in trade creditors, or customers, suppliers or
account debtors acquired in connection with the full or partial settlement of
delinquent accounts in the Ordinary Course of Business or in connection with
the bankruptcy or reorganization of trade creditors, suppliers, customers or
account debtors; and


 


(f)                                    Investments consisting of loans made by Borrower to officers,
directors and employees which are used by such Persons to purchase
simultaneously Stock or Stock Equivalents of Borrower not to exceed $1,000,000  in the aggregate at any time outstanding;


 


(g)                                 Investments existing on the Second Restatement Closing Date
and set forth on Schedule 5.4;


 


50

















 


(h)                                 Permitted Acquisitions;


 


(i)                                     the Credit Parties and their Subsidiaries may (i) endorse
negotiable instruments held for collection in the Ordinary Course of Business
or (ii) make lease, utility and other similar deposits in the Ordinary
Course of Business;


 


(j)                                     obligations with respect to Rate Contracts incurred pursuant
to Section 5.9(b);


 


(k)                                  Investments (other than extensions of credit) (i) by the
Borrower in any Subsidiary of the Borrower that is a Credit Party and (ii) by
a Subsidiary of the Borrower that is a Credit Party in the Borrower or another
Subsidiary of the Borrower that is a Credit Party; and


 


(l)                                     Investments consisting of Indebtedness, Liens, Sale and
Leaseback Transactions, mergers and consolidations, dispositions of Property
and Restricted Payments permitted under Section 5.5, 5.1, 5.19,
5.3, 5.2 and 5.11, respectively.


 


5.5                                 Limitation on
Indebtedness.  No Credit
Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries
to, create, incur, assume, permit to exist, or otherwise become or remain
directly or indirectly liable with respect to, any Indebtedness, except:


 


(a)                                  Indebtedness incurred pursuant to this Agreement;


 


(b)                                 Indebtedness consisting of Contingent Obligations described
in clause (i) of the definition thereof and permitted pursuant to Section 5.9;


 


(c)                                  Indebtedness existing on the Second Restatement Closing Date
and set forth in Schedule 5.5 including modifications, extensions,
refinancings, refundings and renewals thereof which do not increase the
principal amount of such Indebtedness as of the date of such modifications, extension,
refinancing, refunding or renewal except by an amount equal to any premium or
other similar amount paid, and fees and expenses incurred in connection with
such modification, extension, refinancing, refunding or renewal and by an
amount equal to any existing commitments unutilized thereunder;


 


(d)                                 Indebtedness not to exceed $15,000,000 in the aggregate at
any time outstanding, consisting of Capital Lease Obligations (and
modifications, refinancings, refundings, renewals or extensions thereof) or
secured by Liens permitted by subsection 5.1(h);


 


(e)                                  unsecured intercompany Indebtedness permitted pursuant to
subsection 5.4(b) and Section 5.6;


 


(f)                                    unsecured or secured indebtedness of Borrower’s Foreign
Subsidiaries for borrowed money not in excess at any particular date of the
aggregate amount of 


 


51

















 


$10,000,000,
which indebtedness shall be used for the working capital, acquisitions and
liquidity needs of such Foreign Subsidiaries; and


 


(g)                                 other unsecured Indebtedness not exceeding in the aggregate
at any time outstanding $1,000,000;


 


(h)                                 Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient funds in
the Ordinary Course of Business; provided, however, that such
Indebtedness is extinguished within two Business Days of incurrence;


 


(i)                                     cash management obligations and other Indebtedness in respect
of netting services and similar arrangements in each case in connection with
cash management and deposit accounts;


 


(j)                                     Indebtedness of the Borrower in an aggregate amount not to
exceed $25,000,000 at any time outstanding pursuant to documentation in form
and substance satisfactory to Agent;


 


(k)                                  Indebtedness consisting of the financing of insurance
premiums in the Ordinary Course of Business; and


 


(l)                                     Indebtedness in an aggregate amount not to exceed $500,000 at
any time outstanding consisting of take-or-pay obligations contained in supply
agreements in the Ordinary Course of Business.


 


5.6                                 Transactions
with Affiliates. No Credit Party shall, and no Credit Party shall
suffer or permit any of its Subsidiaries to, enter into any transaction with
any Affiliate of the Borrower or of any such Subsidiary, except:


 


(a)                                  as expressly permitted by this Agreement;


 


(b)                                 in the Ordinary Course of Business and pursuant to the
reasonable requirements of the business of such Credit Party or such Subsidiary
provided that, in the case of this clause (b), upon fair and reasonable terms
no less favorable to such Credit Party or such Subsidiary than would be
obtained in a comparable arm’s length transaction with a Person not an
Affiliate of the Borrower or such Subsidiary and which are disclosed in writing
to the Agent;


 


(c)                                  Restricted Payments permitted by Section 5.11;


 


(d)                                 Investments permitted by Section 5.4;


 


(e)                                  intercompany Indebtedness permitted pursuant to subsection
5.5(e); and


 


52

















 


(f)                                    the transactions in existence on the Second Restatement
Closing Date and set forth on Schedule 5.9.


 


5.7                                 Management Fees
and Compensation.  No Credit
Party shall, and no Credit Party shall permit any of its Subsidiaries to, pay
any management, consulting or similar fees to any Affiliate of any Credit Party
or to any officer, director or employee of any Credit Party or any Affiliate of
any Credit Party except:


 


(a)                                  payment of reasonable compensation (including bonuses) and
other benefits (including retirement, health, stock option and other benefit
plans) and indemnification arrangements to officers and employees for actual
services rendered to the Credit Parties and their Subsidiaries in the Ordinary
Course of Business;


 


(b)                                 reimbursement of actual out-of-pocket expenses incurred in
connection with attending board of director meetings and payment of directors’
fees not to exceed in the aggregate, with respect to all such items, $100,000
in cash in any fiscal year of the Borrower or otherwise paid in the form of
Stock or Stock Equivalents;


 


5.8                                 Use of Proceeds.  No Credit Party shall, and no Credit Party
shall suffer or permit any of its Subsidiaries to, use any portion of the Loan
proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or
otherwise refinance Indebtedness of any Credit Party or others incurred to
purchase or carry Margin Stock or otherwise in violation of this Agreement.


 


5.9                                 Contingent
Obligations.  No Credit
Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any Contingent Obligations except
in respect of the Obligations and except:


 


(a)                                  endorsements for collection or deposit in the Ordinary Course
of Business;


 


(b)                                 Rate Contracts entered into in the Ordinary Course of
Business for bona fide hedging purposes and not for speculation;


 


(c)                                  Contingent Obligations of the Credit Parties and their
Subsidiaries existing as of the Second Restatement Closing Date and listed in Schedule
5.9, including modifications, extensions and renewals thereof which do not
increase the amount of such Contingent Obligations as of the date of such
modification, extension or renewal except by an amount equal to any premium or
other similar amount paid, and fees and expenses incurred in connection with
such modification, extension or renewal or as otherwise permitted pursuant to Section 5.9;


 


53

















 


(d)                                 Contingent Obligations incurred in the Ordinary Course of
Business with respect to surety and appeal bonds, performance bonds, workers’
compensation claims, self insurance obligations, bankers acceptances and other
similar obligations;


 


(e)                                  Contingent Obligations arising under indemnity agreements to
title insurers to cause such title insurers to issue to the Agent title
insurance policies;


 


(f)                                    Contingent Obligations arising with respect to customary
indemnification obligations, purchase price adjustments, earnouts and similar
obligations (i) in favor of sellers in connection with Acquisitions
permitted hereunder, (ii) in favor of purchasers in connection with
dispositions permitted under subsection 5.2 and (iii) in connection with
Investments permitted hereunder;


 


(g)                                 Contingent Obligations arising under Letters of Credit;


 


(h)                                 Contingent Obligations arising under guarantees made in the
Ordinary Course of Business of obligations of any Credit Party, which
obligations are otherwise permitted hereunder; provided that if such obligation
is subordinated to the Obligations, such guarantee shall be subordinated to the
same extent;


 


(i)                                     Contingent Obligations in respect of Indebtedness otherwise
permitted under Section 5.5;


 


(j)                                     Contingent Obligations incurred by any Credit Party with
respect to operating leases and other obligations of any Credit Party that do
not constitute Indebtedness entered into in the Ordinary Course of Business;
and


 


(k)                                  other Contingent Obligations not exceeding $100,000 in the
aggregate at any time outstanding.


 


5.10                           Compliance with
ERISA.  No ERISA Affiliate shall cause
or suffer to exist (a) any event that could result in the imposition of a
Lien on any material asset of a Credit Party or a Subsidiary of a Credit Party
with respect to any Benefit Plan, (b) any other ERISA Event, that would,
in the aggregate, have a Material Adverse Effect or (c) any event that
could result in the imposition of a Lien on any material asset of a Credit
Party or a Subsidiary of a Credit Party with respect to any Benefit Plan.


 


5.11                           Restricted
Payments.  No Credit
Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries
to, (i) declare or make any dividend payment or other distribution of
assets, properties, cash, rights, obligations or securities on account of any
Stock or Stock Equivalent or (ii) purchase, redeem or otherwise acquire
for value any Stock or Stock Equivalent now or hereafter outstanding (the items
described in clauses (i) and (ii) above are referred to as “Restricted
Payments”); except that any Wholly-Owned Subsidiary of the Borrower may
declare 


 


54

















 


and pay dividends to the Borrower or any Wholly-Owned Subsidiary of the
Borrower, and except that:


 


(a)                                  Borrower may declare and make dividend payments or other
distributions payable solely in its Stock or Stock Equivalents;


 


(b)                                 Borrower may declare and make cash dividend payments or other
cash distributions provided all of the following conditions are satisfied:


 


(i)                                     no Default or Event of Default has occurred and is continuing
or would arise as a result of such Restricted Payment;


 


(ii)                                  after giving effect to such Restricted Payment, the Credit
Parties are in compliance on a pro forma basis with the covenants set forth in Article VI
and the Fixed Charge Coverage Ratio for the Credit Parties shall be not less than
2.00 to 1.0 on a pro forma basis, in each case, recomputed for the most recent
quarter for which financial statements have been delivered;


 


(iii)                               the aggregate Restricted Payments under this Section 5.11(b) permitted
in any fiscal year of the Borrower shall not exceed $5,000,000; and


 


(iv)                              after giving effect to such Restricted Payment, Availability
is not less than $15,000,000.


 


(c)                                  the Borrower may redeem from officers, directors and
employees Stock and Stock Equivalents provided all of the following conditions
are satisfied:


 


(i)                                     no Default or Event of Default has occurred and is continuing
or would arise as a result of such Restricted Payment;


 


(ii)                                  after giving effect to such Restricted Payment, the Credit
Parties are in compliance on a pro forma basis with the covenants set forth in Article VI,
recomputed for the most recent quarter for which financial statements have been
delivered;


 


(iii)                               the aggregate Restricted Payments under this Section 5.11(c) permitted
(x) in any fiscal year of the Borrower shall not exceed $500,000 and (y) during
the term of this Agreement shall not exceed $1,000,000; and


 


(iv)                              after giving effect to such Restricted Payment, Availability
is not less than $5,000,000.


 


5.12                           Change in
Business.  No Credit
Party shall, and no Credit Party shall permit any of its Subsidiaries to,
engage in any material line of business substantially different from those


 


55














 


lines of business carried on by it on the date hereof (or which are
similar, reasonably related, incidental, ancillary or complementary thereto or
are reasonable extensions thereof).


 


5.13                           Change in
Structure.  Except as
expressly permitted under Section 5.3 or solely with respect to
Borrower in connection with an IPO, no Credit Party shall, and no Credit Party
shall permit any of its Subsidiaries to, make any material changes in its
equity capital structure (including in the terms of its outstanding Stock or
Stock Equivalents), or amend any of its Organization Documents in any material
respect or in any respect adverse to the Agent or Lenders.


 


5.14                           Accounting
Changes.  No Credit Party shall, and no
Credit Party shall suffer or permit any of its Subsidiaries to, make any
significant change in accounting treatment or reporting practices, except as
required or otherwise permitted by GAAP, or change the fiscal year or method
for determining fiscal quarters of any Credit Party or of any consolidated
Subsidiary of any Credit Party.


 


5.15                           Amendments to
Subordinated Indebtedness.  The
Borrower shall not, and shall not permit any of its Subsidiaries directly or
indirectly to, change or amend the terms of any Indebtedness permitted under Section 5.5(j),
except to the extent permitted by the intercreditor agreement to which it is
subject.


 


5.16                           No Negative
Pledges.  No Credit Party shall, and no
Credit Party shall permit any of its Subsidiaries to, directly or indirectly, (a) create
or otherwise cause or suffer to exist or become effective any consensual
restriction or encumbrance of any kind on the ability of any such Subsidiary to
pay dividends or make any other distribution on any of such Subsidiary’s Stock
or Stock Equivalents or to pay fees, including management fees, or make other
payments and distributions to the Borrower or any of its Subsidiaries, (b) enter
into, assume or become subject to any Contractual Obligation prohibiting or
otherwise restricting the existence of any Lien upon any of its assets in favor
of the Agent, whether now owned or hereafter acquired except in connection with
(1) any document or instrument governing Liens permitted pursuant to
subsections 5.1(h) and (i) provided that any such restriction
contained therein relates only to the asset or assets subject to such permitted
Liens (2) any other agreement that does not restrict in any manner
(directly or indirectly) Liens created pursuant to the Loan Documents on any
Collateral securing the Obligations and does not require the direct or indirect
granting of any Lien securing any Indebtedness or other obligation by virtue of
the granting of Liens on or pledge of property of any Credit Party to secure
the Obligations; and (3) any prohibition or limitation that (A) exists
pursuant to applicable Requirements of Law, (B) consists of customary
restrictions and conditions contained in any agreement relating to the sale of
any property permitted under Section 5.2 pending the consummation
of such sale, (C) restricts subletting or assignment of any lease governing
a leasehold interest of any Credit Party, (D) exists in any agreement in
effect at the time such Credit Party becomes a Credit Party, so long as such
agreement was not entered into in contemplation of such person becoming a
Credit Party or (E) is imposed by any amendments or refinancings that are
otherwise permitted by the Loan 


 


56

















 


Documents of the contracts, instruments or obligations referred to in
clause (2) or (3)(D); provided that such amendments and
refinancings are no more materially restrictive with respect to such
prohibitions and limitations than those prior to such amendment or
refinancing..


 


5.17                           OFAC.  No Credit Party shall, and no Credit Party
shall permit any of its Subsidiaries to (i) become a person whose property
or interests in property are blocked or subject to blocking pursuant to Section 1
of Executive Order 13224 of September 23, 2001 Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit or Support
Terrorism (66 Fed. Reg. 49079(2001), (ii) engage in any dealings or
transactions prohibited by Section 2 of such executive order, or be
otherwise associated with any such person in any manner violative of Section 2,
or (iii) otherwise become a person on the list of Specially Designated
Nationals and Blocked Persons or subject to the limitations or prohibitions
under any other OFAC regulation or executive order.


 


5.18                           Press Release
and Related Matters.  No Credit
Party shall, and no Credit Party shall permit any of its Affiliates to, issue
any press release or other public disclosure (other than any document filed
with any Governmental Authority relating to a public offering of securities of
any Credit Party) using the name, logo or otherwise referring to GE Capital or
of any of its Affiliates, the Loan Documents or any transaction contemplated
therein to which the Agent is party without the prior consent of GE Capital
(such consent not to be unreasonably withheld or delayed) except to the extent required
to do so under applicable Requirements of Law. 
Any Credit Party that is required pursuant to any applicable
Requirements of Law to disclose any such information shall promptly notify
Agent of such disclosure to the extent permitted by applicable law.


 


5.19                           Sale-Leasebacks.  No Credit Party shall, and no Credit Party
shall permit any of its Subsidiaries to, engage in a sale leaseback, synthetic
lease or similar transaction involving any of its assets unless (i) the
sale of such assets is permitted by Section 5.2 and (ii) any
Liens arising in connection therewith are permitted by Section 5.1.


 


5.20                           Hazardous
Materials.  No Credit
Party shall, and no Credit Party shall permit any of its Subsidiaries to, cause
or suffer to exist any Release of any Hazardous Material at, to or from any
real property owned, leased, subleased or otherwise operated or occupied by any
Credit Party or any Subsidiary of any Credit Party that would violate any
Environmental Law, form the basis for any Environmental Liabilities or
otherwise adversely affect the value or marketability of any real property
(whether or not owned by any Credit Party or any Subsidiary of any Credit
Party), other than such violations, Environmental Liabilities and effects that
would not, in the aggregate, have a Material Adverse Effect.


 


5.21                           Operating
Leases.  The Credit Parties shall not
enter into any operating leases if the aggregate of all rents and other lease
payments payable by the Credit Parties under operating leases would exceed
$15,000,000 per year.


 


57

















 


ARTICLE VI.

FINANCIAL COVENANTS


 


Each Credit Party covenants
and agrees that, so long as any Lender shall have any Revolving Loan Commitment
hereunder, or any Loan or other Obligation (other than contingent
indemnification Obligations to the extent no claim giving rise thereto has been
asserted) shall remain unpaid or unsatisfied:


 


6.1                                 Capital
Expenditures.  The
Borrower and its Subsidiaries shall not make or commit to make Capital
Expenditures for any fiscal year (or shorter period) set forth below in excess
of the amount set forth in the table below (the “Capital Expenditure
Limitation”) with respect to such fiscal year (or shorter period):


 


	
  Fiscal
  Period

  	
   

  	
  Capital Expenditure Limitation

  	
   

  
	
  Fiscal
  year ended December 31, 2009

  	
   

  	
  $

  	
  30,000,000

  	
   

  
	
  Fiscal
  year ended December 31, 2010 and each fiscal year thereafter

  	
   

  	
  $

  	
  35,000,000

  	
   

  



 


; provided, however, in the
event the Borrower and its Subsidiaries do not expend the entire Capital
Expenditure Limitation in any fiscal year, the Borrower and its Subsidiaries
may carry forward to the immediately succeeding fiscal year (but only to the
immediately succeeding fiscal year) 100% of the unutilized portion.  All Capital Expenditures shall first be
applied to reduce the applicable Capital Expenditure Limitation and then to
reduce the carry-forward from the previous fiscal year, if any.   Notwithstanding the foregoing, if Borrower
and its Subsidiaries do not generate EBITDA in amounts equal to or greater than
the amounts set forth below for the fiscal years set forth below, the Capital
Expenditure Limitation shall be $25,000,000 for the immediately succeeding
fiscal year:


 


	
  Fiscal
  Period

  	
   

  	
  Minimum EBITDA

  	
   

  
	
  Fiscal
  year ended December 31, 2009

  	
   

  	
  $

  	
  53,260,150

  	
   

  
	
  Fiscal
  year ended December 31, 2010

  	
   

  	
  $

  	
  71,787,600

  	
   

  
	
  Fiscal
  year ended December 31, 2011 and each fiscal year thereafter

  	
   

  	
  $

  	
  95,835,800

  	
   

  



 


6.2                                 Senior Leverage
Ratio.  The Credit Parties shall not
permit the Senior Leverage Ratio for the twelve month period ending on any date
set forth below to be greater than the maximum ratio set forth in the table
below opposite such date:


 


	
  Date

  	
   

  	
  Maximum Senior Leverage Ratio

  	
   

  
	
  March 31, 2010 and
  the last day of each fiscal quarter thereafter through the fiscal quarter
  ending December 31, 2010

  	
   

  	
  2.50 to 1.00

  	
   

  
	
  March 31, 2011
  through the fiscal quarter ending June 30, 2011

  	
   

  	
  2.25 to 1.00

  	
   

  
	
  September 30, 2011
  and the last day of each fiscal quarter thereafter

  	
   

  	
  2.00 to 1.00

  	
   

  



 


58

















 


6.3                                 Total Leverage
Ratio.  The Credit Parties shall not
permit the Total Leverage Ratio for the twelve month period ending on any date
set forth below to be greater than the maximum ratio set forth in the table
below opposite such date:


 


	
  Date

  	
   

  	
  Maximum Total Leverage Ratio

  	
   

  
	
  March 31, 2010 and
  the last day of each fiscal quarter thereafter through the fiscal quarter
  ending December 31, 2010

  	
   

  	
  3.00 to 1.00

  	
   

  
	
  March 31, 2011
  through the fiscal quarter ending June 30, 2011

  	
   

  	
  2.75 to 1.00

  	
   

  
	
  September 30, 2011
  and the last day of each fiscal quarter thereafter

  	
   

  	
  2.50 to 1.00

  	
   

  



 


6.4                                 Fixed Charge
Coverage Ratio.  The Credit
Parties shall not permit the Fixed Charge Coverage Ratio for the twelve month
period ending on any date set forth below to be less than the minimum ratio set
forth in the table below opposite such date:


 


	
  Date

  	
   

  	
  Minimum Fixed Charge Ratio

  	
   

  
	
  March 31, 2010 and
  the last day of each fiscal quarter thereafter

  	
   

  	
  1.20 to 1.00

  	
   

  



 


ARTICLE VII.

EVENTS OF DEFAULT


 


7.1                                 Event of
Default.  Any of the following shall
constitute an “Event of Default”:


 


(a)                                  Non-Payment.  Any Credit Party fails (i) to pay when
and as required to be paid herein, any amount of principal of any Loan,
including after maturity of the Loans, or to pay any L/C Reimbursement
Obligation or (ii) to pay within three (3) Business Days after the
same shall become due, interest on any Loan, any fee or any other amount
payable hereunder or pursuant to any other Loan Document; or


 


(b)                                 Representation or Warranty.  Any representation, warranty or certification
by or on behalf of any Credit Party or any of its Subsidiaries made or deemed
made herein, in any other Loan Document, or which is contained in any
certificate, document or financial or other statement by any such Person, or
their respective Responsible Officers, 


 


59

















 


furnished
at any time under this Agreement, or in or under any other Loan Document, shall
prove to have been incorrect in any material respect on or as of the date made
or deemed made; or


 


(c)                                  Specific Defaults.  Any Credit Party fails to perform or observe
any term, covenant or agreement contained in any of Sections 4.1, 4.2(b),
4.2(d), 4.3(a), 4.6, 4.9, Article V or Article VI
hereof; or


 


(d)                                 Other Defaults.  Any Credit Party or Subsidiary of any Credit
Party fails to perform or observe any other term, covenant or agreement
contained in this Agreement or any other Loan Document (other than as provided
in subsection 7.1(c)), and such default shall continue unremedied for a period
of thirty (30) days after the earlier to occur of (i) the date upon which
a Responsible Officer of any Credit Party becomes aware of such default and (ii) the
date upon which written notice thereof is given to the Borrower by the Agent or
Required Lenders; or


 


(e)                                  Cross-Default.  Any Credit Party or any Subsidiary of any
Credit Party (i) fails to make any payment in respect of any Indebtedness
(other than the Obligations) or Contingent Obligation having an aggregate
principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $3,500,000 when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) and such
failure continues after the applicable grace or notice period, if any,
specified in the document relating thereto on the date of such failure; or (ii) fails
to perform or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to any
such Indebtedness or Contingent Obligation, if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Indebtedness (or a trustee
or agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause such Indebtedness to be declared to be due and payable prior to its
stated maturity (without regard to any subordination terms with respect
thereto), or such Contingent Obligation to become payable or cash collateral in
respect thereof to be demanded; or


 


(f)                                    Insolvency; Voluntary Proceedings.  The Borrower,
individually, ceases or fails, or the Credit Parties and their Subsidiaries on
a consolidated basis, cease or fail, to be Solvent, or any Credit Party or any
Subsidiary of any Credit Party: (i) generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or


 


(g)                                 Involuntary Proceedings.  (i) Any involuntary Insolvency
Proceeding is commenced or filed against any Credit Party or any Subsidiary of
any Credit Party, or any writ, 


 


60

















 


judgment,
warrant of attachment, execution or similar process, is issued or levied
against a substantial part of any such Person’s Properties, and any such
proceeding or petition shall not be dismissed, or such writ, judgment, warrant
of attachment, execution or similar process shall not be released, vacated or
fully bonded within sixty (60) days after commencement, filing or levy; (ii) any
Credit Party or any Subsidiary of any Credit Party admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order
for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) any Credit Party or any Subsidiary of any Credit
Party acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its Property or business;
or


 


(h)                                 Monetary Judgments.  One or more judgments, non-interlocutory
orders, decrees or arbitration awards shall be entered against any one or more
of the Credit Parties or any of their respective Subsidiaries involving in the
aggregate a liability (to the extent not covered by independent third-party
insurance) as to any single or related series of transactions, incidents or
conditions, of $2,500,000 or more, and the same shall remain unsatisfied,
unvacated and unstayed pending appeal for a period of thirty (30) days after
the entry thereof but in any event not later than five (5) days prior to
the date of any proposed sale thereunder; or


 


(i)                                     Non-Monetary Judgments.  One or more non-monetary judgments, orders or
decrees shall be rendered against any one or more of the Credit Parties or any
of their respective Subsidiaries which has or would reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect, and
there shall be any period of twenty (20) consecutive days during which a stay
of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or


 


(j)                                     Collateral.  Any material provision of any Loan Document
shall for any reason cease to be valid and binding on or enforceable against
any Credit Party or any Subsidiary of any Credit Party party thereto or any
Credit Party or any Subsidiary of any Credit Party shall so state in writing or
bring an action to limit its obligations or liabilities thereunder; or any
Collateral Document shall for any reason (other than pursuant to the terms
thereof) cease to create a valid security interest in the Collateral (other
than Collateral not exceeding $100,000 in the aggregate after the date of this
Agreement) purported to be covered thereby or such security interest shall for
any reason (other than the failure of the Agent to take any action within its
control) cease to be a perfected and first priority security interest subject
only to Permitted Liens; or


 


(k)                                  Change of Control.  The occurrence of a Change of Control.


 


61

















 


7.2                                 Remedies.  Upon the occurrence and during the
continuance of any Event of Default, the Agent may, and shall at the request of
the Required Lenders:


 


(a)                                  declare all or any portion of the Revolving Loan Commitment
of each Lender to make Loans or of the L/C Issuer to issue Letters of Credit to
be terminated, whereupon such Revolving Loan Commitments shall forthwith be
terminated;


 


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


 


(c)                                  exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
law;


 


provided, however,
that upon the occurrence of any Event of Default specified in subsections 7.1(f) or
7.1(g) above (in the case of clause (i) of subsection 7.1(g) upon
the expiration of the sixty (60) day period mentioned therein), the obligation
of each Lender to make Loans and the obligation of the L/C Issuer to issue
Letters of Credit shall automatically terminate and the unpaid principal amount
of all outstanding Loans and all interest and other amounts as aforesaid shall
automatically become due and payable without further act of the Agent, any
Lender or the L/C Issuer.


 


62

















 


7.3                                 Rights Not
Exclusive.  The rights
provided for in this Agreement and the other Loan Documents are cumulative and
are not exclusive of any other rights, powers, privileges or remedies provided
by law or in equity, or under any other instrument, document or agreement now
existing or hereafter arising.


 


7.4                                 Cash Collateral
for Letters of Credit.  If
an Event of Default has occurred and is continuing or this Agreement (or the
Revolving Loan Commitment) shall be terminated for any reason, then the Agent
may, and upon request of Required Lenders, shall, demand (which demand shall be
deemed to have been delivered automatically upon any acceleration of the Loans
and other obligations hereunder pursuant to Section 7.2 hereof),
and the Borrower shall thereupon deliver to the Agent, to be held for the
benefit of the L/C Issuer, Agent and the Lenders entitled thereto, an amount of
cash equal to 105% of the amount of Letter of Credit Obligations as additional
collateral security for Obligations in respect of any outstanding Letter of
Credit.  The Agent may at any time apply
any or all of such cash and cash collateral to the payment of any or all of the
Credit Parties’ Obligations in respect of any Letters of Credit.  Pending such application, the Agent may (but
shall not be obligated to) invest the same in an interest bearing account in
the Agent’s name, for the benefit of the L/C Issuer, Agent and the Lenders
entitled thereto, under which deposits are available for immediate withdrawal,
at such bank or financial institution as the L/C Issuer and Agent may, in their
discretion, select.


 


ARTICLE VIII.

THE AGENT


 


8.1                                 Appointment and
Duties.


 


(a)                                  Appointment of Agent.  Each Lender and each L/C Issuer hereby
appoints GE Capital (together with any successor Agent pursuant to Section 8.9)
as the Agent hereunder and authorizes the Agent to (i) execute and deliver
the Loan Documents and accept delivery thereof on its behalf from any Credit
Party, (ii) take such action on its behalf and to exercise all rights,
powers and remedies and perform the duties as are expressly delegated to the
Agent under such Loan Documents and (iii) exercise such powers as are
reasonably incidental thereto.


 


(b)                                 Duties as Collateral and Disbursing Agent.  Without limiting the
generality of clause (a) above, the Agent shall have the sole and
exclusive right and authority (to the exclusion of the Lenders and L/C
Issuers), and is hereby authorized, to (i) act as the disbursing and
collecting agent for the Lenders and the L/C Issuers with respect to all
payments and collections arising in connection with the Loan Documents
(including in any proceeding described in subsection 7.1(g) or any other
bankruptcy, insolvency or similar proceeding), and each Person making any
payment in connection with any Loan Document to any Lender or L/C Issuer is
hereby authorized to make such payment to the Agent, (ii) file and prove
claims and file other documents necessary or desirable to allow the claims of
the Lenders and L/C Issuers with respect to any Obligation in any proceeding
described in subsection 7.1(g) or any other 


 


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bankruptcy,
insolvency or similar proceeding (but not to vote, consent or otherwise act on
behalf of such Person), (iii) act as collateral agent for each Lender and
L/C Issuer for purposes of the perfection of all Liens created by such
agreements and all other purposes stated therein, (iv) manage, supervise
and otherwise deal with the Collateral, (v) take such other action as is
necessary or desirable to maintain the perfection and priority of the Liens
created or purported to be created by the Loan Documents, (vi) except as
may be otherwise specified in any Loan Document, exercise all remedies given to
the Agent, the Lenders and L/C Issuers with respect to the Collateral, whether
under the Loan Documents, applicable Requirements of Law or otherwise and (vii) execute
any amendment, consent or waiver under the Loan Documents on behalf of any
Lender that has consented in writing to such amendment, consent or waiver;
provided, however, that the Agent hereby appoints, authorizes and directs each
Lender and L/C Issuer to act as collateral sub-agent for the Agent, the Lenders
and the L/C Issuers for purposes of the perfection of all Liens with respect to
the Collateral, including any deposit account maintained by a Credit Party
with, and cash and Cash Equivalents held by, such Lender or L/C Issuer, and may
further authorize and direct the Lenders and the L/C Issuers to take further
actions as collateral sub-agents for purposes of enforcing such Liens or
otherwise to transfer the Collateral subject thereto to the Agent, and each
Lender and L/C Issuer hereby agrees to take such further actions to the extent,
and only to the extent, so authorized and directed.


 


(c)                                  Limited Duties.  Under the Loan Documents, the Agent (i) is
acting solely on behalf of the Lenders and the L/C Issuers (except to the
limited extent provided in subsection 1.4(b) with respect to the
Register), with duties that are entirely administrative in nature,
notwithstanding the use of the defined term “Agent”, the terms “agent”, “Agent”
and “collateral agent” and similar terms in any Loan Document to refer to the
Agent, which terms are used for title purposes only, (ii) is not assuming
any obligation under any Loan Document other than as expressly set forth
therein or any role as agent, fiduciary or trustee of or for any Lender, L/C
Issuer or any other Person and (iii) shall have no implied functions,
responsibilities, duties, obligations or other liabilities under any Loan
Document, and each Lender and L/C Issuer hereby waives and agrees not to assert
any claim against the Agent based on the roles, duties and legal relationships
expressly disclaimed in clauses (i) through (iii) above.


 


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8.2                                 Binding Effect.  Each Lender and each L/C Issuer agrees that (i) any
action taken by the Agent or the Required Lenders (or, if expressly required
hereby, a greater proportion of the Lenders) in accordance with the provisions
of the Loan Documents, (ii) any action taken by the Agent in reliance upon
the instructions of Required Lenders (or, where so required, such greater
proportion) and (iii) the exercise by the Agent or the Required Lenders
(or, where so required, such greater proportion) of the powers set forth herein
or therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders and L/C
Issuers.


 


8.3                                 Use of
Discretion.


 


(a)                                  No Action without Instructions.  The Agent shall not be required to exercise
any discretion or take, or to omit to take, any action, including with respect
to enforcement or collection, except any action it is required to take or omit
to take (i) under any Loan Document or (ii) pursuant to instructions
from the Required Lenders (or, where expressly required by the terms of this
Agreement, a greater proportion of the Lenders).


 


(b)                                 Right Not to Follow Certain Instructions.  Notwithstanding
clause (a) above, the Agent shall not be required to take, or to omit to
take, any action (i) unless, upon demand, the Agent receives an
indemnification satisfactory to it from the Lenders (or, to the extent
applicable and acceptable to the Agent, any other Person) against all
Liabilities that, by reason of such action or omission, may be imposed on,
incurred by or asserted against the Agent or any Related Person thereof or (ii) that
is, in the opinion of the Agent or its counsel, contrary to any Loan Document
or applicable Requirement of Law.


 


8.4                                 Delegation of
Rights and Duties.  The Agent
may, upon any term or condition it specifies, delegate or exercise any of its
rights, powers and remedies under, and delegate or perform any of its duties or
any other action with respect to, any Loan Document by or through any trustee,
co-agent, employee, attorney-in-fact and any other Person (including any Lender
or L/C Issuer).  Any such Person shall
benefit from this Article VIII to the extent provided by the Agent.


 


8.5                                 Reliance and
Liability.


 


(a)                                  The Agent may, without incurring any liability hereunder, (i) treat
the payee of any Note as its holder until such Note has been assigned in
accordance with Section 9.9, (ii) rely on the Register to the
extent set forth in Section 1.4, (iii) consult with any of its
Related Persons and, whether or not selected by it, any other advisors,
accountants and other experts (including advisors to, and accountants and
experts engaged by, any Credit Party) and (iv) rely and act upon any
document and information (including those transmitted by Electronic Transmission)
and any telephone message or conversation, in each case believed by it to be
genuine and transmitted, signed or otherwise authenticated by the appropriate
parties.


 


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(b)                                 None of the Agent and its Related Persons shall be liable for
any action taken or omitted to be taken by any of them under or in connection
with any Loan Document, and each Lender and L/C Issuer hereby waive and shall
not assert any right, claim or cause of action based thereon, except to the
extent of liabilities resulting primarily from the gross negligence or willful
misconduct of the Agent or, as the case may be, such Related Person (each as
determined in a final, non-appealable judgment by a court of competent jurisdiction)
in connection with the duties expressly set forth herein.  Without limiting the foregoing, the Agent:


 


(i)                                     shall not be responsible or otherwise incur liability for any
action or omission taken in reliance upon the instructions of the Required
Lenders or for the actions or omissions of any of its Related Persons selected
with reasonable care (other than employees, officers and directors of the
Agent, when acting on behalf of the Agent);


 


(ii)                                  shall not be responsible to any Lender, L/C Issuer or other Person
for the due execution, legality, validity, enforceability, effectiveness,
genuineness, sufficiency or value of, or the attachment, perfection or priority
of any Lien created or purported to be created under or in connection with, any
Loan Document;


 


(iii)                               makes no warranty or representation, and shall not be
responsible, to any Lender, L/C Issuer or other Person for any statement,
document, information, representation or warranty made or furnished by or on
behalf of any Credit Party or any Related Person of any Credit Party in
connection with any Loan Document or any transaction contemplated therein or
any other document or information with respect to any Credit Party, whether or
not transmitted or (except for documents expressly required under any Loan
Document to be transmitted to the Lenders) omitted to be transmitted by the
Agent, including as to completeness, accuracy, scope or adequacy thereof, or
for the scope, nature or results of any due diligence performed by the Agent in
connection with the Loan Documents; and


 


(iv)                              shall not have any duty to ascertain or to inquire as to the
performance or observance of any provision of any Loan Document, whether any
condition set forth in any Loan Document is satisfied or waived, as to the
financial condition of any Credit Party or as to the existence or continuation
or possible occurrence or continuation of any Default or Event of Default and
shall not be deemed to have notice or knowledge of such occurrence or
continuation unless it has received a notice from the Borrower, any Lender or
L/C Issuer describing such Default or Event of Default clearly labeled “notice
of default” (in which case the Agent shall promptly give notice of such receipt
to all Lenders);


 


and, for each of the items
set forth in clauses (i) through (iv) above, each Lender and L/C
Issuer hereby waives and agrees not to assert any right, claim or cause of
action it might have against the Agent based thereon.


 


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8.6                                 Agent
Individually.  The Agent
and its Affiliates may make loans and other extensions of credit to, acquire
Stock and Stock Equivalents of, engage in any kind of business with, any Credit
Party or Affiliate thereof as though it were not acting as Agent and may
receive separate fees and other payments therefor.  To the extent the Agent or any of its
Affiliates makes any Loan or otherwise becomes a Lender hereunder, it shall
have and may exercise the same rights and powers hereunder and shall be subject
to the same obligations and liabilities as any other Lender and the terms “Lender”,
“Lender”, “Required Lender” and any similar terms shall, except where otherwise
expressly provided in any Loan Document, include, without limitation, the Agent
or such Affiliate, as the case may be, in its individual capacity as Lender,
Lender or as one of the Required Lenders, respectively.


 


8.7                                 Lender Credit
Decision.  Each Lender
and each L/C Issuer acknowledges that it shall, independently and without
reliance upon the Agent, any Lender or L/C Issuer or any of their Related
Persons or upon any document (including any offering and disclosure materials
in connection with the syndication of the Loans) solely or in part because such
document was transmitted by the Agent or any of its Related Persons, conduct
its own independent investigation of the financial condition and affairs of
each Credit Party and make and continue to make its own credit decisions in
connection with entering into, and taking or not taking any action under, any
Loan Document or with respect to any transaction contemplated in any Loan
Document, in each case based on such documents and information as it shall deem
appropriate.  Except for documents
expressly required by any Loan Document to be transmitted by the Agent to the
Lenders or L/C Issuers, the Agent shall not have any duty or responsibility to
provide any Lender or L/C Issuer with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of any Credit Party or any Affiliate of any
Credit Party that may come in to the possession of the Agent or any of its
Related Persons.


 


8.8                                 Expenses;
Indemnities.


 


(a)                                  Each Lender agrees to reimburse the Agent and each of its
Related Persons (to the extent not reimbursed by any Credit Party) promptly
upon demand, severably and ratably, of any costs and expenses (including fees,
charges and disbursements of financial, legal and other advisors and Other
Taxes paid in the name of, or on behalf of, any Credit Party) that may be
incurred by the Agent or any of its Related Persons in connection with the
preparation, syndication, execution, delivery, administration, modification,
consent, waiver or enforcement (whether through negotiations, through any
work-out, bankruptcy, restructuring or other legal or other proceeding or
otherwise) of, or legal advice in respect of its rights or responsibilities
under, any Loan Document.


 


(b)                                 Each Lender further agrees to indemnify the Agent and each of
its Related Persons (to the extent not reimbursed by any Credit Party),
severably and ratably, from and against Liabilities (including taxes, interests
and penalties imposed for not properly withholding or backup withholding on
payments made to on or for the account of any Lender) 


 


67

















 


that may be
imposed on, incurred by or asserted against the Agent or any of its Related
Persons in any matter relating to or arising out of, in connection with or as a
result of any Loan Document or any other act, event or transaction related,
contemplated in or attendant to any such document, or, in each case, any action
taken or omitted to be taken by the Agent or any of its Related Persons under
or with respect to any of the foregoing; provided, however, that no Lender
shall be liable to the Agent or any of its Related Persons to the extent such
liability has resulted primarily from the gross negligence or willful
misconduct of the Agent or, as the case may be, such Related Person, as
determined by a court of competent jurisdiction in a final non-appealable
judgment or order.


 


8.9                                 Resignation of
Agent or L/C Issuer.


 


(a)                                  The Agent may resign at any time by delivering notice of such
resignation to the Lenders and the Borrower, effective on the date set forth in
such notice or, if no such date is set forth therein, upon the date such notice
shall be effective.  If the Agent
delivers any such notice, the Required Lenders shall have the right to appoint
a successor Agent.  If, within 30 days
after the retiring Agent having given notice of resignation, no successor Agent
has been appointed by the Required Lenders that has accepted such appointment,
then the retiring Agent may, on behalf of the Lenders, appoint a successor
Agent from among the Lenders.  Each
appointment under this clause (a) shall be subject to the prior consent of
the Borrower, which may not be unreasonably withheld but shall not be required
during the continuance of a Default.


 


(b)                                 Effective immediately upon its resignation, (i) the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents, (ii) the Lenders shall assume and perform all of the
duties of the Agent until a successor Agent shall have accepted a valid
appointment hereunder, (iii) the retiring Agent and its Related Persons
shall no longer have the benefit of any provision of any Loan Document other
than with respect to any actions taken or omitted to be taken while such
retiring Agent was, or because such Agent had been, validly acting as Agent
under the Loan Documents and (iv) subject to its rights under Section 8.3,
the retiring Agent shall take such action as may be reasonably necessary to
assign to the successor Agent its rights as Agent under the Loan
Documents.  Effective immediately upon
its acceptance of a valid appointment as Agent, a successor Agent shall succeed
to, and become vested with, all the rights, powers, privileges and duties of
the retiring Agent under the Loan Documents.


 


(c)                                  Any L/C Issuer may resign at any time by delivering notice of
such resignation to the Agent, effective on the date set forth in such notice
or, if no such date is set forth therein, on the date such notice shall be
effective.  Upon such resignation, the
L/C Issuer shall remain an L/C Issuer and shall retain its rights and
obligations in its capacity as such (other than any obligation to Issue Letters
of Credit but including the right to receive fees or to have Lenders
participate in any L/C Reimbursement Obligation thereof) with respect to
Letters 


 


68

















 


of Credit
issued by such L/C Issuer prior to the date of such resignation and shall
otherwise be discharged from all other duties and obligations under the Loan
Documents.


 


8.10                           Release of
Collateral or Guarantors.  Each
Lender and L/C Issuer hereby consents to the release and hereby directs the
Agent to release (or, in the case of clause (b)(ii) below, release or
subordinate) the following:


 


(a)                                  any Subsidiary of the Borrower from its guaranty of any
Obligation if all of the Stock and Stock Equivalents of such Subsidiary owned
by any Credit Party are sold or transferred in a transaction permitted under
the Loan Documents (including pursuant to a waiver or consent), to the extent
that, after giving effect to such transaction, such Subsidiary would not be
required to guaranty any Obligations pursuant to Section 4.13; and


 


(b)                                 any Lien held by the Agent for the benefit of the Secured
Parties against (i) any Collateral that is sold, transferred, conveyed or
otherwise disposed of by a Credit Party in a transaction permitted by the Loan
Documents (including pursuant to a valid waiver or consent), to the extent all
Liens required to be granted in such Collateral pursuant to Section 4.13
after giving effect to such transaction have been granted, (ii) any
property subject to a Lien permitted hereunder in reliance upon subsection 5.1(h) or
(i) and (iii) all of the Collateral and all Credit Parties, upon (A) termination
of the Revolving Loan Commitments, (B) payment and satisfaction in full of
all Loans, all L/C Reimbursement Obligations and all other Obligations under
the Loan Documents and all Obligations under Secured Rate Contracts that the
Agent has theretofore been notified in writing by the holder of such Obligation
are then due and payable, (C) deposit of cash collateral with respect to
all Contingent Obligations (or, in the case of any Letter of Credit Obligation,
receipt by Agent of a back-up letter of credit), in amounts and on terms and
conditions and with parties satisfactory to the Agent and each Indemnitee that
is owed such Obligations and (D) to the extent requested by the Agent,
receipt by Agent, the Lenders and the L/C Issuers of liability releases from
the Credit Parties each in form and substance acceptable to the Agent.


 


Each Lender and L/C Issuer
hereby directs the Agent, and the Agent hereby agrees, upon receipt of
reasonable advance notice from the Borrower, to execute and deliver or file
such documents and to perform other actions reasonably necessary to release the
guaranties and Liens when and as directed in this Section 8.10.


 


ARTICLE IX.

MISCELLANEOUS


 


9.1                                 Amendments and
Waivers.


 


(a)                                  No amendment or waiver of any provision of this Agreement or
any other Loan Document, and no consent with respect to any departure by any
Credit Party therefrom, shall be effective unless the same shall be in writing
and signed by the Required 


 


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Lenders,
the Borrower and acknowledged by the Agent, and then such waiver shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Lenders directly affected thereby, the
Borrower and acknowledged by the Agent, do any of the following:


 


(i)                                     increase or extend the Revolving Loan Commitment of any
Lender or the Aggregate Revolving Loan Commitment, which actions shall be
deemed to affect all Lenders (or reinstate any Revolving Loan Commitment
terminated pursuant to subsection 7.2(a)) other than increases or extensions
otherwise permitted by Section 1.12 hereof;


 


(ii)                                  postpone or delay any date fixed for, or waive, any scheduled
installment of principal or any payment of interest, fees or other amounts due
to the Lenders (or any of them) or L/C Issuer hereunder or under any other Loan
Document;


 


(iii)                               reduce the principal of, or the rate of interest specified
herein or the amount of interest payable in cash specified herein on any Loan,
or of any fees or other amounts payable hereunder or under any other Loan
Document, including L/C Reimbursement Obligations;


 


(iv)                              change the percentage of the Revolving Loan Commitments or of
the aggregate unpaid principal amount of the Loans which shall be required for
the Lenders or any of them to take any action hereunder;


 


(v)                                 amend this Section 9.1 or the definition of
Required Lenders or any provision providing for consent or other action by all
Lenders; or


 


(vi)                              discharge any Credit Party from its respective payment Obligations
under the Loan Documents, or release all or substantially all of the
Collateral, except as otherwise may be provided in this Agreement or the other
Loan Documents;


 


it being agreed that all
Lenders shall be deemed to be directly affected by an amendment or waiver of
the type described in the preceding clauses (iv), (v) and (vi).


 


(b)                                 No amendment, waiver or consent shall, unless in writing and
signed by the Agent, the Swingline Lender or the L/C Issuer, as the case may
be, in addition to the Required Lenders, all Lenders directly affected thereby
or all the Lenders, as the case may be, affect the rights or duties of the
Agent, the Swingline Lender or the L/C Issuer, as applicable, under this
Agreement or any other Loan Document.


 


(c)                                  No amendment, modification or waiver of this Agreement or any
Loan Document altering the ratable treatment of Obligations arising under
Secured Rate Contracts resulting in such Obligations being junior in right of
payment to principal of the Loans or 


 


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altering
the secured nature of any Obligations owing to any Secured Swap Provider (other
than releases of Liens permitted in accordance with the terms hereof), in each
case in a manner adverse to any Secured Swap Provider, shall be effective
without the written consent of such Secured Swap Provider or GE Capital in the
case of a Secured Rate Contract provided by GE Capital or an Affiliate of GE
Capital.


 


(d)                                 No amendment, modification, waiver or consent shall, unless
in writing and signed by the Agent and the Required Lenders, (i) amend,
modify, waive, or consent to non-compliance with, any provisions (or related
definitions) of Article VI, or (ii) amend or modify the definitions
of Maximum Revolving Loan Balance or Leverage Multiple.


 


9.2                                 Notices.


 


(a)                                  Addresses.  All notices, demands, requests, directions
and other communications required or expressly authorized to be made by this
Agreement shall, whether or not specified to be in writing but unless otherwise
expressly specified to be given by any other means, be given in writing and (i) addressed
to the address set forth on the applicable signature page hereto, (ii) posted
to Intralinks® (to the extent such system is available and set up by or at the
direction of the Agent prior to posting) in an appropriate location by
uploading such notice, demand, request, direction or other communication to the
account manager, faxing it to (678) 320-8902 with an appropriate bar-code fax
coversheet or using such other means of posting to Intralinks® as may be
available and reasonably acceptable to the Agent prior to such posting, (iii) posted
to any other E-System set up by or at the direction of Agent or (iv) addressed
to such other address as shall be notified in writing (A) in the case of
the Borrower, the Agent and the Swingline Lender, to the other parties hereto
and (B) in the case of all other parties, to the Borrower and the
Agent.  Transmission by electronic mail
(including E-Fax, even if transmitted to the fax numbers set forth above) shall
not be sufficient or effective to transmit any such notice under this clause
(a).


 


(b)                                 Effectiveness.  All communications described in clause (a) above
and all other notices, demands, requests and other communications made in
connection with this Agreement shall be effective and be deemed to have been
received (i) if delivered by hand, upon personal delivery, (ii) if
delivered by overnight courier service, 1 Business Day after delivery to such
courier service, (iii) if delivered by mail, 5 Business Days after
deposited in the mail, (iv) if delivered by facsimile (other than to post
to an E-System pursuant to clause (a)(ii) or (a)(iii) above), upon
sender’s receipt of confirmation of proper transmission, and (v) if
delivered by posting to any E-System, on the later of the date of such posting
and the date access to such posting is given to the recipient thereof in
accordance with the standard procedures applicable to such E-System; provided,
however, that no communications to Agent pursuant to Article I
shall be effective until received by Agent.


 


(c)                                  Each Lender shall notify the Agent in writing of any changes
in the address to which notices to such Lender should be directed, of addresses
of its Lending Office, 


 


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of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.


 


9.3                                 Electronic
Transmissions.


 


(a)                                  Authorization.  Subject to the provisions of Section 9.2(a),
each of Agent, Lenders, each Credit Party and each of their Related Persons, is
authorized (but not required) to transmit, post or otherwise make or
communicate, in its sole discretion, Electronic Transmissions in connection
with any Loan Document and the transactions contemplated therein.  Each party hereto acknowledges and agrees
that the use of Electronic Transmissions is not necessarily secure and that
there are risks associated with such use, including risks of interception,
disclosure and abuse and each indicates it assumes and accepts such risks by
hereby authorizing the transmission of Electronic Transmissions.


 


(b)                                 Signatures.  Subject to the provisions of Section 9.2(a),
(i)(A) no posting to any E-System shall be denied legal effect merely
because it is made electronically, (B) each E-Signature on any such
posting shall be deemed sufficient to satisfy any requirement for a “signature”
and (C) each such posting shall be deemed sufficient to satisfy any
requirement for a “writing”, in each case including pursuant to any Loan
Document, any applicable provision of any UCC, the federal Uniform Electronic
Transactions Act, the Electronic Signatures in Global and National Commerce Act
and any substantive or procedural Requirement of Law governing such subject
matter, (ii) each such posting that is not readily capable of bearing
either a signature or a reproduction of a signature may be signed, and shall be
deemed signed, by attaching to, or logically associating with such posting, an
E-Signature, upon which Agent, each Lender and each Credit Party may rely and
assume the authenticity thereof, (iii) each such posting containing a
signature, a reproduction of a signature or an E-Signature shall, for all
intents and purposes, have the same effect and weight as a signed paper
original and (iv) each party hereto or beneficiary hereto agrees not to
contest the validity or enforceability of any posting on any E-System or
E-Signature on any such posting under the provisions of any applicable Requirement
of Law requiring certain documents to be in writing or signed; provided,
however, that nothing herein shall limit such party’s or beneficiary’s
right to contest whether any posting to any E-System or E-Signature has been
altered after transmission.


 


(c)                                  Separate Agreements.  All uses of an E-System shall be governed by
and subject to, in addition to Section 9.2 and this Section 9.3,
separate terms and conditions posted or referenced in such E-System and related
Contractual Obligations executed by Agent and Credit Parties in connection with
the use of such E-System.


 


(d)                                 LIMITATION OF LIABILITY.  ALL E-SYSTEMS AND ELECTRONIC TRANSMISSIONS
SHALL BE PROVIDED “AS IS” AND “AS AVAILABLE”. 
NONE OF AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS WARRANTS THE
ACCURACY, ADEQUACY OR COMPLETENESS OF ANY E-SYSTEMS OR ELECTRONIC TRANSMISSION
AND DISCLAIMS ALL LIABILITY 


 


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FOR ERRORS
OR OMISSIONS THEREIN.  NO WARRANTY OF ANY
KIND IS MADE BY AGENT, ANY LENDER OR ANY OF THEIR RELATED PERSONS IN CONNECTION
WITH ANY E-SYSTEMS OR ELECTRONIC COMMUNICATION, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF
THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS.  Each of Borrower, each other Credit Party
executing this Agreement and each Lender agrees that Agent has no
responsibility for maintaining or providing any equipment, software, services
or any testing required in connection with any Electronic Transmission or otherwise
required for any E-System.


 


9.4                                 No Waiver;
Cumulative Remedies.  No failure
to exercise and no delay in exercising, on the part of the Agent or any Lender,
any right, remedy, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.  No course of dealing between any Credit
Party, any Affiliate of any Credit Party, the Agent or any Lender shall be
effective to amend, modify or discharge any provision of this Agreement or any
of the other Loan Documents.


 


9.5                                 Costs and
Expenses.  Any action
taken by any Credit Party under or with respect to any Loan Document, even if
required under any Loan Document or at the request of Agent or Required
Lenders, shall be at the expense of such Credit Party, and neither Agent nor
any Lender shall be required under any Loan Document to reimburse any Credit
Party or any Subsidiary of any Credit Party therefor except as expressly
provided therein.  In addition, the
Borrower agrees to pay or reimburse upon demand (a) the Agent for all
reasonable documented out-of-pocket costs and expenses incurred by it or any of
its Related Persons, in connection with the investigation, development,
preparation, negotiation, syndication, execution, interpretation or
administration of, any modification of any term of or termination of, any Loan
Document, any commitment or proposal letter therefor, any other document
prepared in connection therewith or the consummation and administration of any
transaction contemplated therein, in each case including Attorney Costs to the
Agent, (b) the Agent for all reasonable documented costs and expenses
incurred by it or any of its Related Persons in connection with internal audit
reviews, field examinations and Collateral examinations (which shall be
reimbursed, in addition to the out-of-pocket costs and expenses of such
examiners, at the per diem rate per individual charged by the Agent for its
examiners), (c) each of the Agent, its Related Persons, the Lenders and
L/C Issuer for all documented out-of-pocket costs and expenses incurred in
connection with (i) any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out”, (ii) the
enforcement or preservation of any right or remedy under any Loan Document, any
Obligation, with respect to the Collateral or any other related right or remedy
or (iii) the commencement, defense, conduct of, intervention in, or the
taking of any other action with respect to, any proceeding (including any
bankruptcy or insolvency proceeding) related to any Credit Party, any
Subsidiary of any Credit Party, Loan Document or Obligation (or the 


 


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response to and preparation for any subpoena or request for document
production relating thereto), including Attorney Costs and (d) fees and
disbursements of (i) Attorney Costs of one law firm on behalf of all
Lenders (other than Agent) and (ii) Attorney Costs of Agent incurred in
connection with any of the matters referred to in clause (c) above.


 


9.6                                 Indemnity.


 


(a)                                  Each Credit Party agrees to indemnify, hold harmless and
defend Agent, each Lender, each L/C Issuer and each of their respective Related
Persons (each such Person being an “Indemnitee”) from and against all
Liabilities (including brokerage commissions, fees and other compensation) that
may be imposed on, incurred by or asserted against any such Indemnitee in any
matter relating to or arising out of, in connection with or as a result of (i) any
Loan Document, any Obligation (or the repayment thereof), any Letter of Credit,
the use or intended use of the proceeds of any Loan or the use of any Letter of
Credit or any securities filing of, or with respect to, any Credit Party, (ii) any
commitment letter, proposal letter or term sheet with any Person or any
Contractual Obligation, arrangement or understanding with any broker, finder or
consultant, in each case entered into by or on behalf of the any Credit Party
or any Affiliate of any of them in connection with any of the foregoing and any
Contractual Obligation entered into in connection with any E-Systems or other
Electronic Transmissions, (iii) any actual or prospective investigation,
litigation or other proceeding relating to the foregoing, whether or not
brought by any such Indemnitee or any of its Related Persons, any holders of
securities or creditors (and including attorneys’ fees in any case), whether or
not any such Indemnitee, Related Person, holder or creditor is a party thereto,
and whether or not based on any securities or commercial law or regulation or
any other Requirement of Law or theory thereof, including common law, equity,
contract, tort or otherwise or (iv) any other act, event or transaction
related, contemplated in or attendant to any of the foregoing (collectively,
the “Indemnified Matters”); provided, however, that no Credit Party
shall have any liability under this Section 9.6 to any Indemnitee
with respect to any Indemnified Matter, and no Indemnitee shall have any
liability with respect to any Indemnified Matter other than (to the extent
otherwise liable), to the extent such liability has resulted primarily from the
gross negligence or willful misconduct of such Indemnitee, as determined by a
court of competent jurisdiction in a final non-appealable judgment or
order.  Furthermore, each of Borrower and
each other Credit Party executing this Agreement waives and agrees not to
assert against any Indemnitee, and shall cause each other Credit Party to waive
and not assert against any Indemnitee, any right of contribution with respect
to any Liabilities that may be imposed on, incurred by or asserted against any
Related Person.


 


(b)                                 Without limiting the foregoing, “Indemnified Matters”
includes all Environmental Liabilities, including those arising from, or
otherwise involving, any property of any Credit Party or any Related Person of
any Credit Party or any actual, alleged or prospective damage to property or
natural resources or harm or injury alleged to have resulted from any Release
of Hazardous Materials on, upon or into such property or natural resource or
the migration of such release to any property on or contiguous to any real
property of any Credit


 


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Party or
any Related Person or any Credit Party, whether or not, with respect to any
such Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any
leasehold mortgage, a mortgagee in possession, the successor-in-interest to any
Credit Party or any Related Person of any Credit Party or the owner, lessee or
operator of any property of any Related Person through any foreclosure action,
in each case except to the extent such Environmental Liabilities (i) are
incurred following foreclosure or deed-in-lieu of foreclosure or similar
transfer by Agent or following Agent or any Lender having become the
successor-in-interest to any Credit Party or any Related Person of any Credit
Party and (ii) are attributable solely to acts of such Indemnitee or its affiliates,
successors, assigns or their representatives, agents, invitees, tenants,
subtenants or other Indemnitees.


 


9.7                                 Marshaling;
Payments Set Aside.  Neither the
Agent nor any Lender shall be under any obligation to marshal any property in
favor of any Credit Party or any other Person or against or in payment of any
Obligation.  To the extent that the Agent
or any Lender receives a payment from Borrower, from any other Credit Party,
from the proceeds of the Collateral, from the exercise of its rights of setoff,
any enforcement action or otherwise, and such payment is subsequently, in whole
or in part, invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party, then to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor, shall be revived and
continued in full force and effect as if such payment had not occurred.


 


9.8                                 Successors and
Assigns.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that any assignment by
any Lender shall be subject to the provisions of Section 9.9
hereof, and provided further that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Lender.


 


9.9                                 Assignments and
Participations; Binding Effect.


 


(a)                                  This Agreement shall become effective when it shall have been
executed by the Borrower, the other Credit Parties signatory hereto and the
Agent and when the Agent shall have been notified by each Lender and the
initial L/C Issuer that such Lender or L/C Issuer has executed it.  Thereafter, it shall be binding upon and
inure to the benefit of, but only to the benefit of, the Borrower, the other
Credit Parties hereto (in each case except for Article VIII), the
Agent, each Lender and L/C Issuer and, in each case, their respective successors
and permitted assigns.  Except as
expressly provided in any Loan Document (including in Section 8.9),
none of the Borrower, any other Credit Party, any L/C Issuer or the Agent shall
have the right to assign any rights or obligations hereunder or any interest
herein.


 


(b)                                 Each Lender may sell, transfer, negotiate or assign (a “Sale”)
all or a portion of its rights and obligations hereunder (including all or a
portion of its Revolving Loan Commitments and its rights and obligations with
respect to Loans and Letters of Credit) to (i) 


 


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any
existing Lender, (ii) any Affiliate or Approved Fund of any existing
Lender or (iii) any other Person acceptable (which acceptance shall not be
unreasonably withheld or delayed) to the Agent and, as long as no Event of
Default is continuing, the Borrower; provided, however, that (x) such
Sales must be ratable among the obligations owing to and owed by such Lender
with respect to the Revolving Loans and (y) for each Loan, the aggregate
outstanding principal amount (determined as of the effective date of the
applicable Assignment) of the Loans, Revolving Loan Commitments and Letter of
Credit Obligations subject to any such Sale shall be in a minimum amount of
$1,000,000, unless such Sale is made to an existing Lender or an Affiliate or
Approved Fund of any existing Lender, is of the assignor’s (together with its
Affiliates and Approved Funds) entire interest in such Facility or is made with
the prior consent of the Borrower and the Agent.


 


(c)                                  The parties to each Sale made in reliance on clause (b) above
(other than those described in clause (e) or (f) below) shall execute
and deliver to the Agent (which shall keep a copy thereof) an Assignment,
together with any existing Note subject to such Sale (or any affidavit of loss
therefor acceptable to the Agent), any tax forms required to be delivered
pursuant to Section 10.1 and payment by the assignee of an
assignment fee in the amount of $3,500. 
Upon receipt of all the foregoing, and conditioned upon such receipt and
upon the Agent consenting to such Assignment (if required), from and after the
effective date specified in such Assignment, the Agent shall record or cause to
be recorded in the Register the information contained in such Assignment.


 


(d)                                 Effective upon the entry of such record in the Register, (i) such
assignee shall become a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment, shall have the rights and obligations of a Lender;
provided that such assignee shall not be entitled to any greater rights
under Section 10.1 hereof than the assigning Lender was entitled in
the absence of such Assignment, (ii) any applicable Note shall be
transferred to such assignee through such entry and (iii) the assignor
thereunder shall, to the extent that rights and obligations under this
Agreement have been assigned by it pursuant to such Assignment, relinquish its
rights (except for those surviving the termination of the Revolving Loan
Commitments and the payment in full of the Obligations) and be released from
its obligations under the Loan Documents, other than those relating to events
or circumstances occurring prior to such assignment (and, in the case of an
Assignment covering all or the remaining portion of an assigning Lender’s
rights and obligations under the Loan Documents, such Lender shall cease to be
a party hereto).


 


(e)                                  In addition to the other rights provided in this Section 9.9,
each Lender may grant a security interest in, or otherwise assign as
collateral, any of its rights under this Agreement, whether now owned or
hereafter acquired (including rights to payments of principal or interest on
the Loans), to (A) any federal reserve bank (pursuant to Regulation A of
the Federal Reserve Board), without notice to the Agent or (B) any holder
of, or trustee for the benefit of the holders of, such Lender’s Indebtedness or
equity securities, by notice to the Agent; provided, however,
that no such holder or trustee, whether because of such grant or 


 


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assignment
or any foreclosure thereon (unless such foreclosure is made through an
assignment in accordance with clause (b) above), shall be entitled to any
rights of such Lender hereunder and no such Lender shall be relieved of any of
its obligations hereunder.


 


(f)                                    In addition to the other rights provided in this Section 9.9,
each Lender may, (x) with notice to the Agent, grant to an SPV the option
to make all or any part of any Loan that such Lender would otherwise be
required to make hereunder (and the exercise of such option by such SPV and the
making of Loans pursuant thereto shall satisfy the obligation of such Lender to
make such Loans hereunder) and such SPV may assign to such Lender the right to
receive payment with respect to any Obligation and (y) without notice to
or consent from the Agent or the Borrower, sell participations to one or more
Persons in or to all or a portion of its rights and obligations under the Loan
Documents (including all its rights and obligations with respect to the
Revolving Loans and Letters of Credit); provided, however, that,
whether as a result of any term of any Loan Document or of such grant or participation,
(i) no such SPV or participant shall have a commitment, or be deemed to
have made an offer to commit, to make Loans hereunder, and, except as provided
in the applicable option agreement, none shall be liable for any obligation of
such Lender hereunder, (ii) such Lender’s rights and obligations, and the
rights and obligations of the Credit Parties and the Secured Parties towards
such Lender, under any Loan Document shall remain unchanged and each other
party hereto shall continue to deal solely with such Lender, which shall remain
the holder of the Obligations in the Register, except that (A) each such
participant and SPV shall be entitled to the benefit of Article X,
but, with respect to Section 10.1, only to the extent such
participant or SPV delivers the tax forms such Lender is required to collect
pursuant to subsection 10.1(f) and then only to the extent of any amount
to which such Lender would be entitled in the absence of any such grant or
participation and (B) each such SPV may receive other payments that would
otherwise be made to such Lender with respect to Loans funded by such SPV to
the extent provided in the applicable option agreement and set forth in a
notice provided to the Agent by such SPV and such Lender, provided, however,
that in no case (including pursuant to clause (A) or (B) above) shall
an SPV or participant have the right to enforce any of the terms of any Loan
Document, and (iii) the consent of such SPV or participant shall not be
required (either directly, as a restraint on such Lender’s ability to consent
hereunder or otherwise) for any amendments, waivers or consents with respect to
any Loan Document or to exercise or refrain from exercising any powers or
rights such Lender may have under or in respect of the Loan Documents
(including the right to enforce or direct enforcement of the Obligations),
except for those described in clauses (ii) and (iii) of subsection
9.1(a) with respect to amounts, or dates fixed for payment of amounts, to
which such participant or SPV would otherwise be entitled and, in the case of
participants, except for those described in clause (vi) of subsection
9.1(a).  No party hereto shall institute
(and the Borrower shall cause each other Credit Party not to institute) against
any SPV grantee of an option pursuant to this clause (f) any bankruptcy,
reorganization, insolvency, liquidation or similar proceeding, prior to the
date that is one year and one day after the payment in full of all outstanding
commercial paper of such SPV; provided, however, that each Lender having
designated an SPV as such agrees to indemnify 


 


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each
Indemnitee against any Liability that may be incurred by, or asserted against,
such Indemnitee as a result of failing to institute such proceeding (including
a failure to get reimbursed by such SPV for any such Liability).  The agreement in the preceding sentence shall
survive the termination of the Revolving Loan Commitments and the payment in
full of the Obligations.


 


9.10                           Confidentiality.  Each Lender, L/C Issuer and the Agent agrees
to use all reasonable efforts to maintain, in accordance with its customary
practices, the confidentiality of information obtained by it pursuant to any
Loan Document in accordance with the terms hereof, except that such information
may be disclosed (i) with the Borrower’s consent, (ii) to Related
Persons of such Lender, L/C Issuer or the Agent, as the case may be, or to any
Person that any L/C Issuer causes to issue Letters of Credit hereunder, that are
advised of the confidential nature of such information and are instructed to
keep such information confidential, (iii) to the extent such information
presently is or hereafter becomes available to such Lender, L/C Issuer or the
Agent, as the case may be, on a non-confidential basis from a source other than
any Credit Party, (iv) to the extent disclosure is required by applicable
Requirements of Law or other legal process or requested or demanded by any
Governmental Authority (in which case such Lender, L/C Issuer or Agent shall
promptly notify the Borrower to the extent lawfully permitted to do so), (v) to
the extent necessary or customary for inclusion in league table measurements or
in any tombstone or other advertising materials (and the Credit Parties consent
to the publication of such tombstone or other advertising materials by the
Agent, any Lender, any L/C Issuer or any of their Related Persons), (vi) (A) to
the National Association of Insurance Commissioners or any similar
organization, any examiner or any nationally recognized rating agency or (B) otherwise
to the extent consisting of general portfolio information that does not
identify borrowers, (vii) to current or prospective assignees, SPVs
(including the investors therein) or participants, direct or contractual
counterparties to any Secured Rate Contracts and to their respective Related
Persons, in each case to the extent such assignees, investors, participants,
counterparties or Related Persons agree to be bound by provisions substantially
similar to the provisions of this Section 9.10 and (viii) in
connection with the exercise of any remedy under any Loan Document.  In the event of any conflict between the
terms of this Section 9.10 and those of any other Contractual
Obligation entered into with any Credit Party (whether or not a Loan Document),
the terms of this Section 9.10 shall govern.


 


Each Credit Party consents
to the publication by Agent or any Lender of advertising material relating to
the financing transactions contemplated by this Agreement using Borrower’s or
any other Credit Party’s name, product photographs, logo or trademark.  Agent or such Lender shall provide a draft of
any advertising material to Borrower for review and comment prior to the
publication thereof.


 


9.11                           Set-off; Sharing
of Payments.


 


(a)                                  Right of Setoff.  Each of the Agent, each Lender, each L/C
Issuer and each Affiliate (including each branch office thereof) of any of them
is hereby authorized, 


 


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without
notice or demand (each of which is hereby waived by each Credit Party), at any
time and from time to time during the continuance of any Event of Default and
to the fullest extent permitted by applicable Requirements of Law, to set off
and apply any and all deposits (whether general or special, time or demand,
provisional or final) at any time held and other Indebtedness, claims or other
obligations at any time owing by the Agent, such Lender, such L/C Issuer or any
of their respective Affiliates to or for the credit or the account of the
Borrower or any other Credit Party against any Obligation of any Credit Party
now or hereafter existing, whether or not any demand was made under any Loan
Document with respect to such Obligation and even though such Obligation may be
unmatured.  Each of the Agent, each
Lender and each L/C Issuer agrees promptly to notify the Borrower and the Agent
after any such setoff and application made by such Lender or its Affiliates;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. 
The rights under this Section 9.11 are in addition to any
other rights and remedies (including other rights of setoff) that the Agent,
the Lenders and the L/C Issuers and their Affiliates may have.


 


(b)                                 Sharing of Payments, Etc.  If any Lender, directly or through an
Affiliate or branch office thereof, obtains any payment of any Obligation of
any Credit Party (whether voluntary, involuntary or through the exercise of any
right of setoff or the receipt of any Collateral or “proceeds” (as defined
under the applicable UCC) of Collateral) other than pursuant to Article X
and such payment exceeds the amount such Lender would have been entitled to
receive if all payments had gone to, and been distributed by, the Agent in
accordance with the provisions of the Loan Documents, such Lender shall
purchase for cash from other Lenders such participations in their Obligations
as necessary for such Lender to share such excess payment with such Lenders to
ensure such payment is applied as though it had been received by the Agent and
applied in accordance with this Agreement (or, if such application would then
be at the discretion of the Borrower, applied to repay the Obligations in
accordance herewith); provided, however, that (a) if such payment is
rescinded or otherwise recovered from such Lender or L/C Issuer in whole or in
part, such purchase shall be rescinded and the purchase price therefor shall be
returned to such Lender or L/C Issuer without interest and (b) such Lender
shall, to the fullest extent permitted by applicable Requirements of Law, be
able to exercise all its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Lender were the direct
creditor of the applicable Credit Party in the amount of such participation.


 


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9.12                           Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.  Signature pages may be detached from
multiple separate counterparts and attached to a single counterpart.  Delivery of an executed signature page of
this Agreement by facsimile transmission or Electronic Transmission shall be as
effective as delivery of a manually executed counterpart hereof.


 


9.13                           Severability;
Facsimile Signature.  The
illegality or unenforceability of any provision of this Agreement or any
instrument or agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this
Agreement or any instrument or agreement required hereunder.  Any Loan Document, or other agreement,
document or instrument, delivered by facsimile transmission shall have the same
force and effect as if the original thereof had been delivered.


 


9.14                           Captions.  The captions and headings of this Agreement
are for convenience of reference only and shall not affect the interpretation
of this Agreement.


 


9.15                           Independence of
Provisions.  The parties
hereto acknowledge that this Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters, and that such limitations, tests and measurements are cumulative and
must each be performed, except as expressly stated to the contrary in this
Agreement.


 


9.16                           Interpretation.  This Agreement is the result of negotiations
among and has been reviewed by counsel to the Agent, each Lender and other
parties hereto, and is the product of all parties hereto.  Accordingly, this Agreement and the other
Loan Documents shall not be construed against the Lenders or the Agent merely
because of the Agent’s or Lenders’ involvement in the preparation of such
documents and agreements.


 


9.17                           No Third
Parties Benefited.  This
Agreement is made and entered into for the sole protection and legal benefit of
the Borrower, the Lenders and the Agent, and, subject to the provisions of Section 8.11
hereof, each other Secured Party, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents. 
Neither the Agent nor any Lender shall have any obligation to any Person
not a party to this Agreement or the other Loan Documents.


 


9.18                           Governing Law
and Jurisdiction.


 


(a)                                  Governing Law.  The laws of the State of New York shall
govern all matters arising out of, in connection with or relating to this
Agreement, including, without limitation, its validity, interpretation,
construction, performance and enforcement.


 


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(b)                                 Submission to Jurisdiction.  Any legal action or proceeding with respect
to any Loan Document may be brought in the courts of the State of New York
located in the City of New York, Borough of Manhattan, or of the United States
of America for the Southern District of New York and, by execution and delivery
of this Agreement, each of Borrower and each other Credit Party executing this
Agreement hereby accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts.  The parties hereto (and, to the extent set
forth in any other Loan Document, each other Credit Party) hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, that any of them may now or hereafter have
to the bringing of any such action or proceeding in such jurisdictions.


 


(c)                                  Service of Process.  Each Credit Party hereby irrevocably waives
personal service of any and all legal process, summons, notices and other
documents and other service of process of any kind and consents to such service
in any suit, action or proceeding brought in the United States of America with
respect to or otherwise arising out of or in connection with any Loan Document
by any means permitted by applicable Requirements of Law, including by the
mailing thereof (by registered or certified mail, postage prepaid) to the
address of Borrower specified herein (and shall be effective when such mailing
shall be effective, as provided therein). 
Each Credit Party 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.


 


(d)                                 Non-Exclusive Jurisdiction.  Nothing contained in this Section 9.18
shall affect the right of Agent or any Lender to serve process in any other
manner permitted by applicable Requirements of Law or commence legal
proceedings or otherwise proceed against any Credit Party in any other
jurisdiction.


 


9.19                           Waiver of Jury
Trial.  THE PARTIES HERETO, TO THE
EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT,
OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS AND ANY OTHER TRANSACTION CONTEMPLATED
HEREBY AND THEREBY.  THIS WAIVER APPLIES
TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE.


 


9.20                           Entire
Agreement; Release; Survival.


 


(a)                                  THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT OF THE PARTIES
AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT
MATTER THEREOF AND ANY PRIOR LETTER OF INTEREST, COMMITMENT LETTER, FEE LETTER,
CONFIDENTIALITY AND SIMILAR AGREEMENTS INVOLVING ANY CREDIT PARTY AND ANY OF
LENDER OR ANY L/C ISSUER OR ANY OF THEIR RESPECTIVE 


 


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AFFILIATES
RELATING TO A FINANCING OF SUBSTANTIALLY SIMILAR FORM, PURPOSE OR EFFECT.  IN THE EVENT OF ANY CONFLICT BETWEEN THE
TERMS OF THIS AGREEMENT AND ANY OTHER LOAN DOCUMENT, THE TERMS OF THIS
AGREEMENT SHALL GOVERN (UNLESS SUCH TERMS OF SUCH OTHER LOAN DOCUMENTS ARE
NECESSARY TO COMPLY WITH APPLICABLE REQUIREMENTS OF LAW, IN WHICH CASE SUCH
TERMS SHALL GOVERN TO THE EXTENT NECESSARY TO COMPLY THEREWITH).


 


(b)                                 Execution of this Agreement by the Credit Parties constitutes
a full, complete and irrevocable release of any and all claims which each
Credit Party may have at law or in equity in respect of all prior discussions
and understandings, oral or written, relating to the subject matter of this
Agreement and the other Loan Documents. 
In no event shall any Indemnitee be liable on any theory of liability
for any special, indirect, consequential or punitive damages (including any
loss of profits, business or anticipated savings).  Each of Borrower and each other Credit Party
signatory hereto hereby waives, releases and agrees (and shall cause each other
Credit Party to waive, release and agree) not to sue upon any such claim for
any special, indirect, consequential or punitive damages, whether or not
accrued and whether or not known or suspected to exist in its favor.


 


9.21                           Patriot Act.  Each Lender that is subject to the Patriot
Act hereby notifies the Borrower that pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of the
Borrower and other information that will allow such Lender to identify the
Borrower in accordance with the Patriot Act.


 


9.22                           Replacement of
Lender.   Within ten (10) Business
Days after: (i) receipt by the Borrower of written notice and demand from
any Lender (an “Affected Lender”) for payment of additional costs as
provided in Sections 10.1, 10.3 and/or 10.6; (ii) any
default by a Lender in its obligation to make Loans hereunder after all
conditions thereto have been satisfied or waived in accordance with the terms
hereof, provided such default shall not have been cured; or (iii) any
failure by any Lender to consent to a requested amendment, waiver or
modification to any Loan Document in which Agent has already consented to such
amendment, waiver or modification but the consent of additional Lender(s) (or
each Lender directly affected thereby, as applicable) is required with respect
thereto, the Borrower may, at its option, notify the Agent and such Affected
Lender (or such defaulting or non-consenting Lender, as the case may be) of the
Borrower’s intention to obtain, at the Borrower’s expense, a replacement Lender
(“Replacement Lender”) for such Affected Lender (or such defaulting or
non-consenting Lender, as the case may be), which Replacement Lender shall be
reasonably satisfactory to the Agent.  In
the event the Borrower obtains a Replacement Lender within sixty (60) days
following notice of its intention to do so, the Affected Lender (or defaulting
or non-consenting Lender, as the case may be) shall sell and assign its Loans
and Revolving Loan Commitments to such Replacement Lender, at par, provided
that the Borrower has reimbursed such Affected Lender for its increased costs
for which it is entitled to reimbursement under this Agreement through the date
of such sale 


 


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and assignment.  In the event
that a replaced Lender does not execute an Assignment pursuant to Section 9.9
within five (5) Business Days after receipt by such replaced Lender of
notice of replacement pursuant to this Section 9.22 and
presentation to such replaced Lender of an Assignment evidencing an assignment
pursuant to this Section 9.22, the Borrower shall be entitled (but
not obligated) to execute such an Assignment on behalf of such replaced Lender,
and any such Assignment so executed by the Borrower, the Replacement Lender and
the Agent, shall be effective for purposes of this Section 9.22 and
Section 9.9.  Upon any such
assignment and payment and compliance with the other provisions of Section 9.8,
such replaced Lender shall no longer constitute a “Lender” for purposes hereof;
provided, any rights of such replaced Lender to indemnification hereunder shall
survive as to such replaced Lender.


 


9.23                           Joint and
Several.  The obligations of the Credit
Parties (other than the Borrower) guarantying the Obligations hereunder and
under the other Loan Documents are joint and several.


 


9.24                           Lender-Debtor
Relationship.  The
relationship between Agent, each Lender and the L/C Issuer, on the one hand,
and the Credit Parties, on the other hand, is solely that of lender and
debtor.  None of Agent, L/C Issuer or any
Lender has any fiduciary relationship or duty to any Credit Party arising out
of or in connection with, and there is no agency, tenancy or joint venture
relationship between Agent, Lenders, L/C Issuer and the Credit Parties by virtue
of, any Loan Document or any transaction contemplated therein.


 


ARTICLE X.

TAXES, YIELD PROTECTION AND ILLEGALITY


 


10.1                           Taxes.


 


(a)                                  Except as otherwise provided in this Section 10.1,
each payment by any Credit Party under any Loan Document shall be made free and
clear of all present or future taxes, levies, imposts, deductions, charges or
withholdings and all liabilities with respect thereto (and without deduction
for any of them) (collectively, but excluding the taxes set forth in clauses (i) and
(ii) below, the “Taxes”) other than for (i) taxes measured by
net income (including branch profits or similar taxes) or overall gross income
and franchise or similar taxes imposed in lieu of net income or overall gross
taxes, in each case imposed on Agent or any Lender as a result of a present or
former connection between such Person and the jurisdiction of the Governmental
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than such connection arising solely from Agent or any
Lender having executed, delivered or performed its obligations or received a
payment under, or enforced, any Loan Document) or (ii) taxes that are
directly attributable to the failure (other than as a result of a change in any
Requirement of Law) by Agent or any Lender to deliver the documentation
required to be delivered pursuant to clause (f) below.


 


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(b)                                 If any Taxes shall be required by law to be deducted from or
in respect of any amount payable under any Loan Document to Agent or any Lender
(i) such amount shall be increased as necessary to ensure that, after all
required deductions for Taxes are made (including deductions applicable to any
increases to any amount under this Section 10.1), Agent or such
Lender receives the amount it would have received had no such deductions been
made, (ii) the relevant Credit Party shall make such deductions, (iii) the
relevant Credit Party shall timely pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable Requirements
of Law and (iv) within 30 days after such payment is made, the relevant
Credit Party shall deliver to the Agent an original or certified copy of a
receipt evidencing such payment; provided, however, that no such increase shall
be made with respect to, and no Credit Party shall be required to indemnify
Agent or any Lender pursuant to clause (d) below for, withholding taxes to
the extent that the obligation to withhold amounts existed on the date that
such Person became a Lender under this Agreement in the capacity under which
such Person makes a claim under this clause (b), except in each case to the
extent such Person is a direct or indirect assignee (other than pursuant to Section 9.22)
of any Lender that was entitled, at the time the assignment to such Person
became effective, to receive additional amounts under this clause (b).  If any Lender (or transferee or assignee of a
Lender) or the Agent receives a refund in respect of any Taxes or Other Taxes
for which such Lender (or transferee or assignee of a Lender) of the Agent has
received payment from the Borrower hereunder, it shall pay to the Borrower the
excess, if any, of (i) the amount of such refund (including any interest
paid by the relevant taxing authority or Governmental Authority with respect to
such refund) over (ii) the sum of (A) all out-of-pocket expenses of
such Lender (or transferee or assignee of a Lender) or the Agent, as the case
may be, plus (B) any Taxes or Other Taxes levied on or attributable to the
receipt by such Lender (or transferee or assignee of a Lender) or the Agent, as
the case may be, of such refund.


 


(c)                                  In addition, the Borrower agrees to pay, and authorizes the
Agent to pay in its name, any stamp, documentary, excise or property tax,
charges or similar levies imposed by any applicable Requirement of Law or
Governmental Authority and all Liabilities with respect thereto (including by
reason of any delay in payment thereof), in each case arising from the execution,
delivery or registration of, or otherwise with respect to, any Loan Document or
any transaction contemplated therein (collectively, “Other Taxes”).  The Swingline Lender may, without any need
for notice, demand or consent from the Borrower, by making funds available to
the Agent in the amount equal to any such payment, make a Swing Loan to the
Borrower in such amount, the proceeds of which shall be used by the Agent in
whole to make such payment.  Within 30 days
after the date of any payment of Taxes or Other Taxes by any Credit Party, the
Borrower shall furnish to the Agent, at its address referred to in Section 9.2,
the original or a certified copy of a receipt evidencing payment thereof.


 


(d)                                 The Borrower shall reimburse and indemnify, within 30 days
after receipt of written demand therefor (with copy to the Agent), Agent and
each Lender for all Taxes and Other Taxes (including any Taxes and Other Taxes
imposed by any jurisdiction on


 


84














 


amounts
payable under this Section 10.1) paid by such Agent or such Lender
and any Liabilities arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted; provided, however,
that Borrower shall have no such obligation to reimburse or indemnify the Agent
or any Lender if Borrower receives the written demand for such Taxes or Other
Taxes more than 180 days after the Agent or Lender, as applicable, pays such
Taxes or Other Taxes.  A certificate of
the Agent or such Lender (or of the Agent on behalf of such Lender) claiming
any compensation under this clause (d), setting forth the amounts to be paid
thereunder and delivered to the Borrower with copy to the Agent, shall be
conclusive, binding and final for all purposes, absent manifest error.  In determining such amount, the Agent and
such Secured Party may use any reasonable averaging and attribution methods.


 


(e)           Any Lender
claiming any additional amounts payable pursuant to this Section 10.1
shall use its reasonable efforts (consistent with its internal policies and
Requirements of Law) to change the jurisdiction of its lending office if such a
change would reduce any such additional amounts (or any similar amount that may
thereafter accrue).


 


(f)            (i) Each
Non-U.S. Lender Party that, at any of the following times, is entitled to an
exemption from United States withholding tax or, after a change in any
Requirement of Law,  is subject to such
withholding tax at a reduced rate under an applicable tax treaty, shall (w) on
or prior to the date such Non-U.S. Lender Party becomes a “Non-U.S. Lender
Party” hereunder, (x) on or prior to the date on which any such form or
certification expires or becomes obsolete, (y) after the occurrence of any
event requiring a change in the most recent form or certification previously
delivered by it pursuant to this clause (i) and (z) from time to time
if requested by the Borrower or the Agent (or, in the case of a participant or
SPV, the relevant Lender), provide the Agent and the Borrower (or, in the case
of a participant or SPV, the relevant Lender) with two signed completed
originals of each of the following, as applicable:  (A) Forms W-8ECI (claiming exemption
from U.S. withholding tax because the income is effectively connected with a
U.S. trade or business), W-8BEN (claiming exemption from, or a reduction of,
U.S. withholding tax under an income tax treaty) and/or W-8IMY or any successor
forms, (B) in the case of a Non-U.S. Lender Party claiming exemption under
Sections 871(h) or 881(c) of the Code, Form W-8BEN (claiming
exemption from U.S. withholding tax under the portfolio interest exemption) or
any successor form and a certificate in form and substance acceptable to the
Agent that such Non-U.S. Lender Party is not (1) a “bank” within the
meaning of Section 881(c)(3)(A) of the Code, (2) a “10 percent
shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of
the Code or (3) a “controlled foreign corporation” described in Section 881(c)(3)(C) of
the Code or (C) any other applicable document prescribed by the IRS
certifying as to the entitlement of such Non-U.S. Lender Party to such
exemption from U.S. withholding tax or reduced rate with respect to all
payments to be made to such Non-U.S. Lender Party under the Loan
Documents.  Unless the Borrower and the
Agent have received forms or other documents satisfactory to them indicating
that payments under any Loan Document to or for a Non-U.S. Lender Party are not
subject to U.S. 


 


85

















 


withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Credit Parties and the Agent shall withhold amounts required to be withheld
by applicable Requirements of Law from such payments at the applicable
statutory rate.


 


(ii)           Each U.S. Lender Party shall (A) on or prior to the
date such U.S. Lender Party becomes a “U.S. Lender Party” hereunder, (B) on
or prior to the date on which any such form or certification expires or becomes
obsolete, (C) after the occurrence of any event requiring a change in the
most recent form or certification previously delivered by it pursuant to this
clause (f) and (D) from time to time if requested by the Borrower or
the Agent (or, in the case of a participant or SPV, the relevant Lender),
provide the Agent and the Borrower (or, in the case of a participant or SPV,
the relevant Lender) with two signed completed originals of Form W-9
(certifying that such U.S. Lender Party is entitled to an exemption from U.S.
backup withholding tax) or any successor form.


 


(iii)          Each Lender having sold a participation in any of its
Obligations or identified an SPV as such to the Agent shall collect from such
participant or SPV the documents described in this clause (f) and provide
them to the Agent.


 


10.2        Illegality.  If after the date hereof any Lender shall
determine that the introduction of any Requirement of Law, or any change in any
Requirement of Law or in the interpretation or administration thereof, has made
it unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Lender or its Lending Office to make
LIBOR Rate Loans, then, on notice thereof by such Lender to the Borrower
through the Agent, the obligation of that Lender to make LIBOR Rate Loans shall
be suspended until such Lender shall have notified the Agent and the Borrower
that the circumstances giving rise to such determination no longer exists.


 


(a)           Subject to
clause (c) below, if any Lender shall determine that it is unlawful to
maintain any LIBOR Rate Loan, the Borrower shall prepay in full or convert to
Base Rate Loans all LIBOR Rate Loans of such Lender then outstanding, together
with interest accrued thereon, either on the last day of the Interest Period
thereof if such Lender may lawfully continue to maintain such LIBOR Rate Loans
to such day, or immediately, if such Lender may not lawfully continue to
maintain such LIBOR Rate Loans, together with any amounts required to be paid
in connection therewith pursuant to Section 10.4.


 


(b)           If the
obligation of any Lender to make or maintain LIBOR Rate Loans has been
terminated, the Borrower may elect, by giving notice to such Lender through the
Agent that all Loans which would otherwise be made by any such Lender as LIBOR
Rate Loans shall be instead Base Rate Loans.


 


(c)           Before
giving any notice to the Agent pursuant to this Section 10.2, the
affected Lender shall designate a different Lending Office with respect to its
LIBOR Rate Loans if such designation will avoid the need for giving such notice
or making such demand 


 


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and will
not, in the judgment of the Lender, be illegal or otherwise disadvantageous to
the Lender.


 


10.3        Increased Costs and Reduction of
Return.


 


(a)           If any
Lender or L/C Issuer shall determine (in good faith, but in its sole and
absolute discretion) that, due to either (i) the introduction of, or any
change in, or in the interpretation of, any law or regulation or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), in the case of
either clause (i) or (ii) subsequent to the date hereof, there shall
be any increase in the cost to such Lender or L/C Issuer of agreeing to make or
making, funding or maintaining any LIBOR Rate Loans or of issuing or maintain
any Letter of Credit, then the Borrower shall be liable for, and shall from
time to time, within thirty (30) days of demand therefor by such Lender or L/C
Issuer (with a copy of such demand to the Agent), pay to the Agent for the
account of such Lender or L/C Issuer, additional amounts as are sufficient to
compensate such Lender or L/C Issuer for such increased costs; provided, that
the Borrower shall not be required to compensate any Lender or L/C Issuer
pursuant to this Section 10.3 for any increased costs incurred more
than one hundred eighty (180) days prior to the date that such Lender or L/C
Issuer notifies the Borrower, in writing of the increased costs and of such
Lender’s or L/C Issuer’s intention to claim compensation thereof; provided,
further, that if the circumstance giving rise to such increased costs is
retroactive, then the one hundred eighty (180) day period referred to above
shall be extended to include the period of retroactive effect thereof.


 


(b)          If any Lender or L/C Issuer shall have determined (in good
faith, but in its sole and absolute discretion) that:


 


(i)            the
introduction of any Capital Adequacy Regulation;


 


(ii)           any
change in any Capital Adequacy Regulation;


 


(iii)          any
change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof; or


 


(iv)          compliance
by such Lender or L/C Issuer (or its Lending Office) or any entity controlling
the Lender or L/C Issuer, with any Capital Adequacy Regulation;


 


affects the amount of
capital required or expected to be maintained by such Lender or L/C Issuer or
any entity controlling such Lender or L/C Issuer and (taking into consideration
such Lender’s or such entities’ policies with respect to capital adequacy and
such Lender’s or L/C Issuer’s desired return on capital) determines that the
amount of such capital is increased as a consequence of its Revolving Loan
Commitment(s), loans, credits or obligations under this Agreement, then, within
thirty (30) days of demand of such Lender or L/C Issuer (with a copy to 


 


87

















 


the Agent), the Borrower shall
pay to such Lender or L/C Issuer, from time to time as specified by such Lender
or L/C Issuer, additional amounts sufficient to compensate such Lender or L/C
Issuer (or the entity controlling the Lender or L/C Issuer)  for such increase; provided, that the
Borrower shall not be required to compensate any Lender or L/C Issuer pursuant
to this Section for any amounts incurred more than one hundred eighty
(180) days prior to the date that such Lender or L/C Issuer notifies the
Borrower, in writing of the amounts and of such Lender’s or L/C Issuer’s
intention to claim compensation thereof; provided, further, that if the event
giving rise to such increase is retroactive, then the one hundred eighty (180)
day period referred to above shall be extended to include the period of
retroactive effect thereof.


 


10.4        Funding Losses.  The Borrower agrees to reimburse each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of:


 


(a)           the
failure of the Borrower to make any payment or mandatory prepayment of
principal of any LIBOR Rate Loan denominated in Dollars or Sterling (including
payments made after any acceleration thereof);


 


(b)           the
failure of the Borrower to borrow, continue or convert a Loan after the
Borrower has given (or is deemed to have given) a Notice of Borrowing or a
Notice of Continuation/Conversion;


 


(c)           the
failure of the Borrower to make any prepayment after the Borrower has given a
notice in accordance with Section 1.7;


 


(d)           the prepayment
(including pursuant to Section 1.8) of a LIBOR Rate Loan
denominated in Dollars or Sterling on a day which is not the last day of the
Interest Period with respect thereto; or


 


(e)           the
conversion pursuant to Section 1.6 of any LIBOR Rate Loan denominated
in Dollars or Sterling to a Base Rate Loan on a day that is not the last day of
the applicable Interest Period;


 


including any such loss or
expense arising from the liquidation or reemployment of funds obtained by it to
maintain its LIBOR Rate Loans hereunder or from fees payable to terminate the
deposits from which such funds were obtained. 
Solely for purposes of calculating amounts payable by the Borrower to
the Lenders under this Section 10.4 and under subsection 10.3(a),
each LIBOR Rate Loan denominated in Dollars or Sterling made by a Lender (and
each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the LIBOR used in determining the
interest rate for such LIBOR Rate Loan denominated in Dollars or Sterling by a
matching deposit or other borrowing in the interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such LIBOR Rate
Loan is in fact so funded.


 


88

















 


10.5        Inability to Determine Rates.  If the Agent shall have determined in good
faith that for any reason adequate and reasonable means do not exist for
ascertaining the LIBOR  for any
requested Interest Period with respect to a proposed LIBOR Rate Loan or that
the LIBOR applicable pursuant to subsection 1.3(a) for any requested
Interest Period with respect to a proposed LIBOR Rate Loan does not adequately
and fairly reflect the cost to the Lenders of funding such Loan, the Agent will
forthwith give notice of such determination to the Borrower and each
Lender.  Thereafter, the obligation of
the Lenders to make or maintain such LIBOR Rate Loans hereunder shall be
suspended until the Agent revokes such notice in writing.  Upon receipt of such notice, the Borrower may
revoke any Notice of Borrowing or Notice of Continuation/ Conversion then
submitted by it.  If the Borrower does
not revoke such notice, the Lenders shall make, convert or continue the Loans,
as proposed by the Borrower, in the amount specified in the applicable notice
submitted by the Borrower, but such Loans shall be made, converted or continued
as Base Rate Loans.


 


10.6        Reserves on LIBOR Rate Loans.  The Borrower shall pay to each Lender, as
long as such Lender shall be required under regulations of the Federal Reserve
Board to maintain reserves with respect to liabilities or assets consisting of
or including Eurocurrency funds or deposits (currently known as “Eurocurrency
liabilities”), additional costs on the unpaid principal amount of each LIBOR
Rate Loan equal to actual costs of such reserves allocated to such Loan by such
Lender (as determined by such Lender in good faith, which determination shall
be conclusive absent demonstrable error), payable on each date on which
interest is payable on such Loan provided the Borrower shall have received at
least fifteen (15) days’ prior written notice (with a copy to the Agent) of
such additional interest from the Lender. 
If a Lender fails to give notice fifteen (15) days prior to the relevant
Interest Payment Date, such additional interest shall be payable fifteen (15)
days from receipt of such notice.


 


10.7        Certificates of Lenders.  Any Lender claiming reimbursement or
compensation pursuant to this Article X shall deliver to the Borrower
(with a copy to the Agent) a certificate setting forth in reasonable detail the
amount payable to such Lender hereunder and such certificate shall be
conclusive and binding on the Borrower in the absence of manifest error.


 


10.8        Survival.  The agreements and obligations of the
Borrower in this Article X shall survive the payment of all other
Obligations.


 


10.9        Restatement.


 


(a)           On the
Second Restatement Closing Date, the Existing Credit Agreement shall be
amended, restated and superseded in its entirety.  The parties hereto acknowledge and agree that
(i) this Agreement, any Notes delivered pursuant hereto and the other Loan



 


89

















 


Documents
executed and delivered in connection herewith do not constitute a novation,
payment and reborrowing, or termination of the “Obligations” (as defined in the
Existing Credit Agreement) under the Existing Credit Agreement as in effect
prior to the Second Restatement Closing Date; (ii) such “Obligations” are
in all respects continuing with only the terms thereof being modified as
provided in this Agreement; (iii) the Liens granted under the Existing
Credit Agreement and each other collateral document pursuant to which all or
any of the “Obligations” are secured are in all respects continuing and in full
force and effect and secure the payment of the Obligations (as defined in this
Agreement) and are hereby fully ratified and affirmed; and (iv) upon the
effectiveness of this Agreement all loans and letters of credit outstanding
under the Existing Credit Agreement immediately before the effectiveness of
this Agreement will be part of the Loans and Letters of Credit hereunder on the
terms and conditions set forth in this Agreement.  Without limitation of the foregoing, Borrower
hereby fully and unconditionally ratifies and affirms all Collateral Documents
and agrees that all collateral granted thereunder shall from and after the date
hereof secure all Obligations hereunder.


 


(b)           Notwithstanding
the modifications effected by this Agreement of the representations, warranties
and covenants of the Borrower contained in the Existing Credit Agreement, the
Borrower acknowledges and agrees that any causes of action or other rights
created in favor of any Lender and its successors arising out of the representations
and warranties of the Borrower contained in or delivered (including
representations and warranties delivered in connection with the making of the
loans or other extensions of credit thereunder) in connection with the Existing
Credit Agreement shall survive the execution and delivery of this Agreement;
provided, however, that it is understood and agreed that the Borrower’s
monetary obligations under the Existing Credit Agreement in respect of the
loans and letters of credit thereunder are evidenced by this Agreement as
provided in Article I hereof.


 


(c)           All
indemnification obligations of the Borrower pursuant to the Existing Credit
Agreement (including any arising from a breach of the representations
thereunder) shall survive the amendment and restatement of the Existing Credit
Agreement pursuant to this Agreement.


 


(d)           On and
after the Second Restatement Closing Date, (i) each reference in the Loan
Documents to the “Credit Agreement”, “Loan Agreement”, “thereunder”, “thereof”
or similar words referring to the Existing Credit Agreement shall mean and be a
reference to this Agreement or the relevant Collateral Document, as the case
may be, and (ii) each reference in the Loan Documents to a “Note” shall
mean and be a Note as defined in this Agreement.


 


90

















 


ARTICLE XI.


DEFINITIONS


 


11.1        Defined Terms.  The following terms are defined in the
Sections or subsections referenced opposite such terms:


 


	
  “Affected
  Lender”

  	
   

  	
  9.22

  
	
  “Borrower”

  	
   

  	
  Preamble

  
	
  “Eurocurrency
  Liabilities”

  	
   

  	
  10.6

  
	
  “Event
  of Default”

  	
   

  	
  7.1

  
	
  “Existing
  Credit Agreement”

  	
   

  	
  Recitals

  
	
  “Fee
  Letter”

  	
   

  	
  1.9(a)

  
	
  “Judgment
  Conversion Rate”

  	
   

  	
  1.14

  
	
  “Judgment
  Currency”

  	
   

  	
  1.14

  
	
  “Indemnitee”

  	
   

  	
  9.6(a)

  
	
  “Indemnified
  Matters”

  	
   

  	
  9.6(a)

  
	
  “Investments”

  	
   

  	
  5.4

  
	
  “L/C
  Reimbursement Agreement”

  	
   

  	
  1.1(c)

  
	
  “L/C
  Reimbursement Date”

  	
   

  	
  1.1(c)(v)

  
	
  “L/C
  Request”

  	
   

  	
  1.1(c)(ii)

  
	
  “L/C
  Sublimit”

  	
   

  	
  1.1(c)

  
	
  “Lender”

  	
   

  	
  Preamble

  
	
  “Letter
  of Credit Fee”

  	
   

  	
  1.9(c)

  
	
  “Maximum
  Lawful Rate”

  	
   

  	
  1.3(d)

  
	
  “Maximum
  Revolving Loan Balance”

  	
   

  	
  1.1(b)

  
	
  “Non-Funding
  Lender”

  	
   

  	
  1.11(b)

  
	
  “Notice
  of Conversion/Continuation”

  	
   

  	
  1.6(a)

  
	
  “Obligation
  Currency”

  	
   

  	
  1.14

  
	
  “Original
  Credit Agreement”

  	
   

  	
  Recitals

  
	
  “Other
  Taxes”

  	
   

  	
  10.1(c)

  
	
  “Other
  Lender”

  	
   

  	
  1.11(e)

  
	
  “Permitted
  Liens”

  	
   

  	
  5.1

  
	
  “Register”

  	
   

  	
  1.4(b)

  
	
  “Restricted
  Payments”

  	
   

  	
  5.11

  
	
  “Replacement
  Lender”

  	
   

  	
  9.22

  
	
  “Revolving
  Loan Commitment”

  	
   

  	
  1.1(b)

  
	
  “Revolving
  Loan”

  	
   

  	
  1.1(b)

  
	
  “Sale”

  	
   

  	
  9.9(b)

  
	
  “Settlement
  Date”

  	
   

  	
  1.11(b)

  
	
  “Swing
  Loan”

  	
   

  	
  1.1(d)(i)

  
	
  “Swingline
  Request”

  	
   

  	
  1.1(d)(ii)

  
	
  “Tax
  Returns”

  	
   

  	
  3.10

  
	
  “Taxes”

  	
   

  	
  10.1(a)

  
	
  “Unused
  Facility Fee”

  	
   

  	
  1.9(b)

  



 


91

















 


In addition to the terms
defined elsewhere in this Agreement, the following terms have the following
meanings:


 


“Account” means, as at any
date of determination, all “accounts” (as such term is defined in the UCC) of
the Borrower and its Domestic Subsidiaries.


 


“Acquisition” means any
transaction or series of related transactions for the purpose of or resulting,
directly or indirectly, in (a) the acquisition of all or substantially all of
the assets of a Person, or of any business or division of a Person, (b) the
acquisition of in excess of fifty percent (50%) of the Stock and Stock
Equivalents of any Person or otherwise causing any Person to become a
Subsidiary of the Borrower, or (c) a merger or consolidation or any other
combination with another Person.


 


“Affiliate” means, as to any
Person, any other Person which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person.  A Person shall be deemed to control another Person
if the controlling Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of the other
Person, whether through the ownership of voting securities, by contract or
otherwise.  Without limitation, any
director, executive officer or beneficial owner of ten percent (10%) or more of
the Stock (either directly or through ownership of Stock Equivalents) of a
Person shall for the purposes of this Agreement, be deemed to control the other
Person.  Notwithstanding the foregoing,
neither the Agent nor any Lender shall be deemed an “Affiliate” of any Credit
Party or of any Subsidiary of any Credit Party.


 


“Agent” means GE Capital in
its capacity as administrative agent for the Lenders hereunder, and any successor
administrative agent.


 


“Agent-Related Persons”
means GE Capital and any successor agent arising under Section 8.9,
together with their respective Affiliates, and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.


 


“Aggregate Revolving Loan
Commitment” means the combined Revolving Loan Commitments of the Lenders, which
shall initially be the Dollar Equivalent of $65,000,000, as such amount may be
increased or decreased from time to time pursuant to this Agreement.


 


“Applicable Margin” means
the applicable LIBOR Margin, Base Rate Margin or L/C Margin.


 


“Approved Fund” means, with
respect to any Lender, any Person (other than a natural Person) that (a) (i) is
or will be engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business or (ii) temporarily warehouses loans for any Lender or any Person
described in clause (i) above and (b) is advised or managed by (i) such
Lender, (ii) any Affiliate of such Lender or (iii) any Person 


 


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(other
than an individual) or any Affiliate of any Person (other than an individual)
that administers or manages such Lender.


 


“Assignment” means an
assignment agreement entered into by a Lender, as assignor, and any prospective
assignee thereof and accepted by the Agent, in substantially the form of Exhibit 11.1(a).


 


“Attorney Costs” means and
includes all reasonable fees and disbursements of any law firm or other
external counsel.


 


“Availability” means, as of
any date of determination, the amount by which (a) the Maximum Revolving
Loan Balance, exceeds (b) the sum of (i) the Dollar Equivalent
of the aggregate outstanding principal balance of Revolving Loans, plus (ii) the
aggregate outstanding principal balance of Swing Loans, plus (iii) the
Letter of Credit Obligations.


 


“Availability Certificate”
means a duly completed certificate of the Borrower in substantially the form of
Exhibit 11.1(b) hereto.


 


“Bankruptcy Code” means the
Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et seq.), as
amended and in effect from time to time and the regulations issued from time to
time thereunder.


 


“Base Rate” means Dollar
Base Rate or Sterling Base Rate, as applicable.


 


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


 


“Base Rate Margin” means
four and one-quarter of one percent (4.25%) per annum.


 


“Benefit Plan” means any
defined benefit employee pension plan (whether governed by the laws of the
United States or otherwise) to which any Credit Party incurs or otherwise has
any obligation or liability, contingent or otherwise.


 


“Borrowing”
means a borrowing hereunder consisting of Loans made to or for the benefit of
the Borrower on the same day by the Lenders pursuant to Article I.


 


“Business Day” means any day
other than a Saturday, Sunday or other day on which commercial banks in
Chicago, Illinois or New York, New York are authorized or required by law to
close and, if the applicable Business Day relates to any LIBOR Rate
Loan, a day on which dealings are carried on in the London interbank market.


 


“Capital Adequacy Regulation”
means any guideline, request or directive of any central bank or other
Governmental Authority, or any other law, rule or regulation, whether or
not having the force of law, in each case, regarding capital adequacy of any
Lender or of any corporation controlling a Lender.


 


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“Capital Expenditures”
means, with respect to any Person, all expenditures (by the expenditure of cash
or the incurrence of Indebtedness) by such Person during any measuring period
for any assets or improvements or for replacements, substitutions or additions
thereto, that should be, in accordance with GAAP, reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person;
provided that Capital Expenditures shall not include any such expenditures
which constitute (a) a Permitted Acquisition or (b) to the extent
permitted by this Agreement, a reinvestment of the Net Proceeds of any
Disposition or Event of Loss.


 


“Capital Lease” means any
leasing or similar arrangement which, in accordance with GAAP, is classified as
a capital lease.


 


“Capital Lease Obligations”
means all monetary obligations of any Credit Party or any Subsidiary of any
Credit Party under any Capital Leases.


 


“Cash Equivalents” means: (a) securities
issued or fully guaranteed or insured by the United States Government or any
agency thereof having maturities of not more than twelve (12) months from the
date of acquisition; (b) certificates of deposit, time deposits,
repurchase agreements, reverse repurchase agreements, or bankers’ acceptances,
having in each case a tenor of not more than twelve (12) months, issued by any
Lender, or by any U.S. commercial bank or any branch or agency of a non-U.S.
bank licensed to conduct business in the U.S. having combined capital and
surplus of not less than $250,000,000; (c) commercial paper of an issuer
rated at least A-1 by Standard & Poor’s Corporation or P-1 by Moody’s
Investors Service Inc. and in either case having a tenor of not more than
twelve (12) months and (d) money market funds provided that substantially
all of the assets of such fund are comprised of securities of the type
described in clauses (a) through (c).


 


“Change of Control” means
the occurrence of any of the following: (a) prior to an IPO, any Person or
group of Persons shall have acquired beneficial ownership of more than 50% of
the issued and outstanding voting capital stock of Borrower; (b) upon and
following an IPO, any Person or group of Persons shall have acquired beneficial
ownership of 35% or more of the issued and outstanding voting capital stock of
Borrower on a fully diluted basis, (c) during any period of twelve
consecutive calendar months, individuals who, at the beginning of such period,
constituted the board of directors of the Borrower (together with any new
directors whose election by the board of directors of Borrower was approved by
a vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose elections or nomination
for election was previously so approved) cease for any reason other than death
or disability to constitute a majority of the directors then in office, (d) Borrower
ceases to own and control, directly or indirectly, all of the economic and
voting rights associated with all of the outstanding capital Stock of any of
its Subsidiaries or (e) a “Change of Control” or any term of similar
effect, as defined under any documentation governing Indebtedness of any Credit
Party having a principal amount in excess of $3,500,000 shall occur.


 


“Chattel Paper” means “chattel
paper” as such term is defined in the UCC.


 


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“Closing Date” means February 7,
2008.


 


“Code” means the Internal
Revenue Code of 1986, and regulations promulgated thereunder, as amended.


 


“Collateral”
means all Property (other than Excluded Property (as defined in the Guaranty
and Security Agreement)) and interests in Property (other than Excluded
Property (as defined in the Guaranty and Security Agreement)) and proceeds
thereof now owned or hereafter acquired by any Credit Party, any of their
respective Domestic Subsidiaries and any other Person who has granted a Lien to
the Agent, in or upon which a Lien now or hereafter exists in favor of any
Lender or the Agent for the benefit of the Agent and Lenders, whether under
this Agreement or under any other documents executed by any such Persons and
delivered to the Agent.


 


“Collateral Documents”
means, collectively, the Guaranty and Security Agreement, the Mortgages, each
Control Agreement and all other security agreements, pledge agreements, patent
and trademark security agreements, lease assignments, guarantees and other
similar agreements (including, without limitation, agreements executed in
connection with Original Credit Agreement) and all amendments, restatements,
modifications or supplements thereof or thereto, by or between any one or more
of any Credit Party, any of their respective Domestic Subsidiaries or any other
Person pledging or granting a lien on Collateral or guaranteeing the payment
and performance of the Obligations, and any Lender or the Agent for the benefit
of the Agent and the Lenders now or hereafter delivered to the Lenders or the
Agent pursuant to or in connection with the transactions contemplated hereby,
and all financing statements (or comparable documents now or hereafter filed in
accordance with the UCC or comparable law) against any such Person as debtor in
favor of any Lender or the Agent for the benefit of the Agent and the Lenders,
as secured party, as any of the foregoing may be amended, restated and/or
modified from time to time.


 


“Commitment Percentage”
means, as to any Lender, the percentage equivalent of such Lender’s Revolving
Loan Commitment divided by the Aggregate Revolving Loan Commitment.


 


“Contingent Obligation”
means, as to any Person, any direct or indirect liability, contingent or
otherwise, of that Person:  (i) with
respect to any Indebtedness, lease, dividend or other obligation of another
Person if the primary purpose or intent of the Person incurring such liability,
or the primary effect thereof, is to provide assurance to the obligee of such
liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such
liability will be protected (in whole or in part) against loss with respect
thereto; (ii) with respect to any letter of credit issued for the account
of that Person or as to which that Person is otherwise liable for reimbursement
of drawings; (iii) under any Rate Contracts; (iv) to make take-or-pay
or similar payments if required regardless of nonperformance by any other party
or parties to an agreement; or (v) for the obligations of another Person
through any agreement to purchase, repurchase or otherwise acquire such
obligation or any Property constituting security therefor, to provide funds for
the payment or discharge of such obligation or 


 


95

















 


to
maintain the solvency, financial condition or any balance sheet item or level
of income of another Person.  The amount
of any Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if not a fixed and determined amount, the
maximum amount so guaranteed or supported.


 


“Contractual Obligations”
means, as to any Person, any provision of any security issued by such Person or
of any agreement, undertaking, contract, indenture, mortgage, deed of trust or
other instrument, document or agreement to which such Person is a party or by
which it or any of its Property is bound.


 


“Control Agreement” means a
tri-party deposit account, securities account or commodities account control
agreements by and among the applicable Credit Party, Agent and the depository,
securities intermediary or commodities intermediary, and each in form and
substance reasonably satisfactory in all respects to Agent and in any event
providing to Agent “control” of such deposit account, securities or commodities
account within the meaning of Articles 8 and 9 of the UCC.


 


“Conversion Date” means any
date on which the Borrower converts a Base Rate Loan to a LIBOR Rate Loan or a
LIBOR Rate Loan to a Base Rate Loan.


 


“Copyrights” means all
rights, title and interests (and all related IP Ancillary Rights) arising under
any Requirement of Law in or relating to copyrights and all mask work, database
and design rights, whether or not registered or published, all registrations
and recordations thereof and all applications in connection therewith.


 


“Credit Parties” means the
Borrower and each other Person (i) which executes this Agreement as a “Credit
Party,” (ii) which executes a guaranty of the Obligations, (iii) which
grants a Lien on all or substantially all of its assets to secure payment of
the Obligations and (iv) all of the Stock of which is pledged to Agent for
the benefit of itself and Lenders.


 


“Default” means any event or
circumstance which, with the giving of notice, the lapse of time, or both,
would (if not cured or otherwise remedied during such time) constitute an Event
of Default.


 


“Disposition” means (a) the
sale, lease, conveyance or other disposition of Property, other than sales or
other dispositions expressly permitted under subsection 5.2(a), 5.2(c), 5.2(d),
5.2(e), 5.2(f), 5.2(g), 5.2(h), 5.2(i), 5.2(j) and 5.2(k) and (b) the
sale or transfer by the Borrower or any Subsidiary of the Borrower of any Stock
or Stock Equivalent issued by any Subsidiary of the Borrower, in each case, to
any Person other than (i) the Borrower or (ii) any other Credit
Party; provided  that any sale,
transfer or other disposition or issuance of Stock or Stock Equivalents of any
Foreign Subsidiary (other than a First Tier Foreign Subsidiary) to another
Foreign Subsidiary shall not be deemed to be a “Disposition”.


 


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“Documents” means any “documents,”
as such term is defined in the UCC.


 


“Dollars”, “dollars” and “$”
each mean lawful money of the United States of America.


 


“Dollar Base Rate” means, at
any time, a rate per annum equal to the higher of (a) the higher of (i) the
rate last quoted by The Wall Street Journal as the “base rate on corporate
loans posted by at least 75% of the nation’s largest banks” in the United
States or, if The Wall Street Journal ceases to quote such rate, the
highest per annum interest rate published by the Federal Reserve Board in
Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the
“bank prime loan” rate or, if such rate is no longer quoted therein, any
similar rate quoted therein (as determined by Agent) or any similar release by
the Federal Reserve Board (as determined by Agent) and (ii) the sum of
3.00% per annum and the Federal Funds Rate and (b) the sum of (x) Dollar
LIBOR for an Interest Period of three months, plus (y) 1.25% per
annum.  Any change in the Dollar Base
Rate due to a change in any of the foregoing shall be effective on the
effective date of such change in the “Prime Rate”, the Federal Funds Rate or
Dollar LIBOR.


 


“Dollar Equivalent” means,
with respect to any amount denominated in Dollars, such amount of Dollars, and
with respect to any Foreign Currency, the amount of Dollars, as of any date of
determination, into which such Foreign Currency can be converted in accordance
with Section 1.13.


 


“Dollar LIBOR” means, for
each Interest Period, the offered rate per annum for deposits of Dollars for
the applicable Interest Period that appears on Telerate Page 3750 as of
11:00 A.M. (London, England time) two (2) Business Days prior to the
first day in such Interest Period.  If no
such offered rate exists, such rate will be the rate of interest per annum, as
determined by the Agent (rounded upwards, if necessary, to the nearest 1/100 of
1%) at which deposits of Dollars in immediately available funds are offered at
11:00 A.M. (London, England time) two (2) Business Days prior to the first
day in such Interest Period by major financial institutions reasonably
satisfactory to the Agent in the London interbank market for such Interest
Period for the applicable principal amount on such date of determination.


 


“Domestic Subsidiary” means,
with respect to any Person, a Subsidiary of such Person, which Subsidiary is
incorporated or otherwise organized under the laws of a state of the United
States of America.


 


“EBITDA” means, with respect
to any Person for any fiscal period, without duplication, an amount equal to (a) consolidated
net income of such Person for such period determined in accordance with GAAP, minus
(b) the sum of (i) income tax credits, (ii) interest income, (iii) gain
from extraordinary items for such period, (iv) any aggregate net gain (but
not any aggregate net loss) during such period arising from the sale, exchange
or other disposition of capital assets by such Person (including any fixed
assets, whether tangible or intangible, all inventory sold in conjunction with
the disposition of fixed assets and all securities), (v) any other
non-cash gains that have been added in determining consolidated net income, in
each case to the extent included 


 


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in
the calculation of consolidated net income of such Person for such period in
accordance with GAAP, but without duplication, and (vi) non-cash gains
resulting from Foreign Currency conversions plus (c) the sum of (i) any
provision for income or franchise taxes, (ii) Interest Expense, (iii) loss
from extraordinary items for such period, (iv) depreciation and
amortization for such period, (v) amortized debt discount for such period,
(vi) the amount of any deduction to consolidated net income as the result
of any grant to any members of the management of such Person of any Stock or
Stock Equivalents, (vii) any aggregate net loss on the sale of Property
(other than Accounts and Inventory) outside the Ordinary Course of Business, (ix) any
other non-cash losses or charges that have been deducted in determining
consolidated net income, in each case to the extent included in the calculation
of consolidated net income of such Person for such period in accordance with
GAAP, but without duplication, and (x) non-cash losses resulting from
Foreign Currency conversions.  For
purposes of this definition, the following items shall be excluded in
determining consolidated net income of a Person: (1) the income (or
deficit) of any other Person accrued prior to the date it became a Subsidiary
of, or was merged or consolidated into, such Person or any of such Person’s
Subsidiaries; (2) the income (or deficit) of any other Person (other than
a Subsidiary) in which such Person has an ownership interest, except to the
extent any such income has actually been received by such Person in the form of
cash dividends or distributions; (3) the undistributed earnings of any
Subsidiary (other than a Credit Party) of such Person 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; (4) any restoration to
income of any contingency reserve, except to the extent that provision for such
reserve was made out of income accrued during such period; (5) any write-up
of any asset; (6) any net gain from the collection of the proceeds of life
insurance policies; (7) any net gain arising from the acquisition of any
securities, or the extinguishment, under GAAP, of any Indebtedness, of such
Person; (8) in the case of a successor to such Person by consolidation or
merger or as a transferee of its assets, any earnings of such successor prior
to such consolidation, merger or transfer of assets; and (9) any deferred
credit representing the excess of equity in any Subsidiary of such Person at
the date of acquisition of such Subsidiary over the cost to such Person of the
investment in such Subsidiary.  Solely
for purposes of calculating the Total Leverage Ratio, Senior Leverage Ratio,
the Fixed Charge Coverage Ratio and the Maximum Revolving Loan Balance
notwithstanding (1) and (8) above to the contrary, EBITDA shall be
calculated on a pro forma basis to give effect to any Permitted Acquisition
consummated at any time on or after the first day of the test period thereof as
if each such Permitted Acquisition had been effected on the first day of such
period for which financial statements are available at the time of
determination thereof, adjusted by verifiable expense reductions, including
excess owner compensation, if any, which are expected to be realized, in each
case calculated by the Borrower and approved by the Agent and Required Lenders.


 


“Electronic Transmission”
means each document, instruction, authorization, file, information and any
other communication transmitted, posted or otherwise made or 


 


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communicated
by e-mail or E-Fax, or otherwise to or from an E-System or other equivalent
service.


 


“Environmental Laws” means
all applicable present and future Requirements of Law and Permits imposing
liability or standards of conduct for or relating to the regulation and
protection of human health and safety as related to environmental protection,
the environment and natural resources, and including public notification requirements
and applicable environmental transfer of ownership, notification or applicable
approval statutes.


 


“Environmental Liabilities”
means all Liabilities (including costs of Remedial Actions, natural resource
damages and costs and expenses of investigation and feasibility studies) that
may be imposed on, incurred by or asserted against any Credit Party or any
Subsidiary of any Credit Party as a result of, or related to, any claim, suit,
action, investigation, proceeding or demand by any Person, whether based in
contract, tort, implied or express warranty, strict liability, criminal or
civil statute or common law or otherwise, arising under any Environmental Law
or in connection with any environmental, health or safety condition with
respect to environmental protection or with any Release and resulting from the
ownership, lease, sublease or other operation or occupation of property by any
Credit Party or any Subsidiary of any Credit Party, whether on, prior or after
the date hereof.


 


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


 


“ERISA Affiliate” means,
collectively, any Credit Party and any Person under common control or treated
as a single employer with, any Credit Party, within the meaning of Section 414(b),
(c), (m) or (o) of the Code.


 


“ERISA Event” means any of
the following:  (a) a reportable
event described in Section 4043(b) of ERISA (or, unless the 30-day
notice requirement has been duly waived under the applicable regulations, Section 4043(c) of
ERISA) with respect to a Title IV Plan; (b) the withdrawal of any ERISA
Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of
ERISA; (c) the complete or partial withdrawal of any ERISA Affiliate from
any Multiemployer Plan; (d) with respect to any Multiemployer Plan, the
filing of a notice of reorganization, insolvency or termination (or treatment
of a plan amendment as termination) under Section 4041A of ERISA; (e) the
filing of a notice of intent to terminate a Title IV Plan (or treatment of a
plan amendment as termination) under Section 4041 of ERISA; (f) the
institution of proceedings to terminate a Title IV Plan or Multiemployer Plan
by the PBGC; (g) the failure to make any statutorily required contribution
to any Title IV Plan or Multiemployer Plan when due; (h) the imposition of
a lien under Section 412 of the Code or Section 302 or 4068 of ERISA on
any property (or rights to property, whether real or personal) of any ERISA
Affiliate; (i) the failure of a Benefit Plan or any trust thereunder
intended to qualify for tax exempt status under Section 401 or 501 of the
Code; and (j) any other event or condition that might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the
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99

















 


trustee
to administer, any Title IV Plan or Multiemployer Plan or for the imposition of
any liability upon any ERISA Affiliate under Title IV of ERISA other than for
PBGC premiums due but not delinquent.


 


“EURIBOR” means, for each
Interest Period, the offered rate per annum for deposits of Euros for the
applicable Interest Period as determined by the Banking Federation of the
European Union that appears on the appropriate Telerate screen for the relevant
period as of 11:00 A.M. (London, England time) two (2) Business Days
prior to the first day in such Interest Period. 
If no such offered rate exists, such rate will be the rate of interest
per annum, as determined by the Agent (rounded upwards, if necessary, to the
nearest 1/100 of 1%) at which deposits of Euros in immediately available funds
are offered at 11:00 A.M. (London, England time) two (2) Business Days
prior to the first day in such Interest Period by major financial institutions
reasonably satisfactory to the Agent in the euro interbank market for such
Interest Period for the applicable principal amount on such date of
determination.


 


“Euro” or “€” means the lawful currency of the
European Union.


 


“Event of Loss” means, with
respect to any Property, any of the following: (a) any loss, destruction
or damage of such Property; or (b) any actual condemnation, seizure or
taking, by exercise of the power of eminent domain or otherwise, of such
Property, or confiscation of such Property or the requisition of the use of
such Property.


 


“Excluded Equity Issuance”
means Net Issuance Proceeds resulting from the issuance of (a) Stock or
Stock Equivalents by Borrower to management or employees of a Credit Party
under any employee stock option or stock purchase plan or other employee
benefits plan in existence from time to time, (b) Stock or Stock
Equivalents by a Wholly-Owned Subsidiary of the Borrower to the Borrower or
another Wholly-Owned subsidiary of the Borrower constituting an Investment
permitted hereunder, (c) Stock or Stock Equivalents by a Wholly-Owned
Subsidiary of Borrower to Borrower or another Wholly-Owned subsidiary of
Borrower constituting an Investment permitted hereunder, and (d) Stock or
Stock Equivalents by a Foreign Subsidiary of such Foreign Subsidiary to qualify
directors where required pursuant to a Requirement of Law or to satisfy other
requirements of applicable law, in each instance, with respect to the ownership
of Stock of Foreign Subsidiaries.


 


“E-Fax” means any system
used to receive or transmit faxes electronically.


 


“E-Signature” means the
process of attaching to or logically associating with an Electronic
Transmission an electronic symbol, encryption, digital signature or process
(including the name or an abbreviation of the name of the party transmitting
the Electronic Transmission) with the intent to sign, authenticate or accept
such Electronic Transmission.


 


“E-System” means any
electronic system, including Intralinks® and any other Internet or
extranet-based site, whether such electronic system is owned, operated or
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100

















 


of
its Related Persons or any other Person, providing for access to data protected
by passcodes or other security system.


 


“Federal Funds Rate” means,
for any day, the rate per annum (rounded upward to the nearest 1/100th of 1%)
equal to the weighted average of the rates on overnight Federal Funds
transactions with members of the Federal Reserve System arranged by Federal
Funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day, provided that if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate quoted to the Agent on such day on such
transactions as determined by the Agent in a commercially reasonable manner.


 


“Federal Reserve Board”
means the Board of Governors of the Federal Reserve System, or any entity
succeeding to any of its principal functions.


 


“First Tier Foreign
Subsidiary” means a Foreign Subsidiary more than fifty percent (50%) of the
voting Stock (directly or through ownership of Stock Equivalents) of which is
held directly by the Borrower or indirectly by Borrower through one or more
Domestic Subsidiaries.


 


“Fixed Charges” means, with
respect to any Person for any fiscal period, (a) the aggregate of all
Interest Expense paid or accrued during such period; provided, that any
Interest Expense paid during such period on any Indebtedness or other
liabilities repaid in connection with any Permitted Acquisition shall be
reformulated as if such Interest Expense had been accrued and paid at the interest
rates applicable to the Obligations during such period, plus (b) scheduled
payments of principal with respect to Indebtedness during such period, plus
(c) the aggregate of all dividends or distributions paid in cash with
respect to Borrower’s Stock during such period.


 


“Fixed Charge Coverage Ratio”
means, with respect to any Person for any fiscal period, the ratio of (a) EBITDA
minus Capital Expenditures of such Person for such fiscal period minus
the United States federal income taxes and other taxes measured by net income
actually paid in cash by such Person in respect of such fiscal period (net of
any cash refund in respect of income taxes actually received with respect to
such period) to (b) to Fixed Charges.


 


“Foreign Currency” means
Sterling or Euro.


 


“Foreign Subfacility Limit”
shall mean the Dollar Equivalent of fifty percent (50%) of the Aggregate
Revolving Loan Commitment, as such amount may be increased or decreased from
time to time pursuant to this Agreement.


 


“Foreign Subsidiary” means,
with respect to any Person, a Subsidiary of such Person, which Subsidiary is
not a Domestic Subsidiary.


 


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


 


“Governmental Authority”
means any nation or government, any state or other political subdivision
thereof, any central bank (or similar monetary or regulatory authority)
thereof, any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any corporation or
other entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.


 


“Guaranty and Security
Agreement” means that certain Guaranty and Security Agreement, dated as of the
Closing Date, in form and substance reasonably acceptable to the Agent and
Borrower, made by the Credit Parties in favor of the Agent, for the benefit of
the Agent and Lenders, as the same may be amended, restated and/or modified
from time to time.


 


“Hazardous Materials” means
any substance, material or waste that is classified, regulated or otherwise
characterized under any Environmental Law as hazardous, toxic, a contaminant or
a pollutant or by other words of similar meaning or regulatory effect,
including petroleum or any fraction thereof, asbestos, polychlorinated
biphenyls and radioactive substances.


 


“Indebtedness” of any Person
means, without duplication: (a) all indebtedness for borrowed money; (b) all
obligations issued, undertaken or assumed as the deferred purchase price of
Property or services (other than trade payables entered into in the Ordinary
Course of Business); (c) the face amount of all letters of credit issued
for the account of such Person and without duplication, all drafts drawn
thereunder and all reimbursement or payment obligations with respect to letters
of credit, surety bonds and other similar instruments issued by such Person; (d) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of Property, assets or businesses; (e) all indebtedness created or arising
under any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to Property acquired by the Person (even
though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such Property); (f) all
Capital Lease Obligations; (g) the principal balance outstanding under any
synthetic lease, off-balance sheet loan or similar off balance sheet financing
product; (h) all obligations, whether or not contingent, to purchase,
redeem, retire, defease or otherwise acquire for value any of its own Stock or
Stock Equivalents (or any Stock or Stock Equivalent of a direct or indirect
parent entity thereof) prior to the date that is 180 days after the Revolving
Termination Date, valued at, in the case of redeemable preferred Stock, the
greater of the voluntary liquidation preference and the involuntary liquidation
preference of such Stock plus accrued and unpaid dividends; (i) all 


 


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indebtedness
referred to in clauses (a) through (h) above secured by (or for which
the holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien upon or in Property (including accounts and
contracts rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such indebtedness; and (j) all
Contingent Obligations described in clause (i) of the definition thereof
in respect of indebtedness or obligations of others of the kinds referred to in
clauses (a) through (i) above.


 


“Insolvency Proceeding”
means (a) any case, action or proceeding before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any
general assignment for the benefit of creditors, composition, marshaling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; in each case in (a) and
(b) above, undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.


 


“Instruments” means “instruments”
as such term is defined in the UCC.


 


“Intellectual Property”
means all rights, title and interests in or relating to intellectual property
and industrial property arising under any Requirement of Law and all IP
Ancillary Rights relating thereto, including all Copyrights, Patents,
Trademarks, Internet domain names, Trade Secrets and IP Licenses.


 


“Interest Expense” means,
with respect to any Person for any fiscal period, (a) interest expense of
such Person paid or payable in cash determined in accordance with GAAP for the
relevant period ended on such date but excluding, to the extent included in
interest expense, (i) debt issuance costs and other debt financing fees
and expenses associated with the consummation of the Transactions incurred
during such period, and (ii) agency fees paid to the Agent during such
period, minus (b) to the extent paid or
payable in cash, any interest income for such period.


 


“Interest Payment Date”
means, (a) with respect to any LIBOR Rate Loan, the last day of each
Interest Period applicable to such Loan and (b) with respect to Base Rate
Loans (including Swing Loans)  the first day
of each calendar month.


 


“Interest Period” means,
with respect to any LIBOR Rate Loan, the period commencing on the Business Day
such Loan is disbursed or continued or on the Conversion Date on which a Base
Rate Loan is converted to the LIBOR Rate Loan and ending on the date one, two
or three months thereafter, as selected by the Borrower in its Notice of
Borrowing or Notice of Conversion/Continuation; provided that:


 


(a)           if any Interest Period pertaining to a LIBOR Rate Loan
would otherwise end on a day which is not a Business Day, that Interest Period
shall be extended to the next succeeding Business Day unless the result of such
extension would be to carry such Interest Period into 


 


103

















 


another
calendar month, in which event such Interest Period shall end on the
immediately preceding Business Day;


 


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


 


(c)           no Interest Period for any Revolving Loan shall extend
beyond the Revolving Termination Date.


 


“Inventory” means all of the
“inventory” (as such term is defined in the UCC) of the Borrower and its
Domestic Subsidiaries.


 


“IP Ancillary Rights” means,
with respect to any other Intellectual Property, as applicable, all foreign
counterparts to, and all divisionals, reversions, continuations,
continuations-in-part, reissues, reexaminations, renewals and extensions of,
such Intellectual Property and all income, royalties, proceeds and Liabilities
at any time due or payable or asserted under or with respect to any of the
foregoing or otherwise with respect to such Intellectual Property, including
all rights to sue or recover at law or in equity for any past, present or
future infringement, misappropriation, dilution, violation or other impairment
thereof, and, in each case, all rights to obtain any other IP Ancillary Right.


 


“IP License” means all
Contractual Obligations (and all related IP Ancillary Rights), whether written
or oral, granting any right, title and interest in or relating to any
Intellectual Property.


 


“IPO” means an initial
public offering of Stock of Borrower or any direct or indirect parent thereof
registered with the Securities and Exchange Commission resulting in a listing
of Borrower’s Stock on a public exchange or the NASDAQ.


 


“Issue” means, with respect
to any Letter of Credit, to issue, extend the expiration date of, renew
(including by failure to object to any automatic renewal on the last day such
objection is permitted), increase the face amount of, or reduce or eliminate
any scheduled decrease in the face amount of, such Letter of Credit, or to
cause any Person to do any of the foregoing. 
The terms “Issued” and “Issuance” have correlative meanings.


 


“L/C Issuer” means GE
Capital or a Subsidiary thereof or a bank or other legally authorized Person
selected by or acceptable to Agent in its sole discretion, in such Person’s
capacity as an issuer of Letters of Credit hereunder.


 


“L/C Margin” means five and
one-half of one percent (5.50%) per annum.


 


104






 










 


“L/C Reimbursement
Obligation” means, for any Letter of Credit, the obligation of the Borrower to
the L/C Issuer thereof, as and when matured, to pay all amounts drawn under
such Letter of Credit.


 


“Lending Office” means, with
respect to any Lender, the office or offices of such Lender specified as its “Lending
Office” beneath its name on the applicable signature page hereto, or such
other office or offices of such Lender as it may from time to time notify the
Borrower and the Agent.


 


“Letter of Credit” means
documentary or standby letters of credit issued for the account of the Borrower
by L/C Issuers, and bankers’ acceptances issued by the Borrower, for which
Agent and Lenders have incurred Letter of Credit Obligations.


 


“Letter of Credit
Obligations” means all outstanding obligations incurred by Agent and Lenders at
the request of the Borrower, whether direct or indirect, contingent or
otherwise, due or not due, in connection with the issuance of Letters of Credit
by L/C Issuers or the purchase of a participation as set forth in Section 1.1(c) with
respect to any Letter of Credit.  The
amount of such Letter of Credit Obligations shall equal the maximum amount that
may be payable by Agent and Lenders thereupon or pursuant thereto.


 


“Leverage Multiple” means (i) 2.5
for any day during the period beginning on March 31, 2010 and ending on December 31,
2010, (ii) 2.25 for any day during the period beginning on January 1, 2011
and ending on June 30, 2011, and (iii) 2.0 for any day on and after July 1,
2011.


 


“Liabilities”
means all claims, actions, suits, judgments, damages, losses, liability,
obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes,
commissions, charges, disbursements and expenses, in each case of any kind or
nature (including interest accrued thereon or as a result thereto and fees,
charges and disbursements of financial, legal and other advisors and
consultants), whether joint or several, whether or not indirect, contingent,
consequential, actual, punitive, treble or otherwise.


 


“LIBOR” means, Dollar LIBOR,
Sterling LIBOR or EURIBOR, as applicable.


 


“LIBOR
Rate Loan” means a Loan that bears interest based on LIBOR.


 


“LIBOR Margin” means five
and one-half of one percent (5.50%) per annum.


 


“Lien” means any mortgage,
deed of trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or otherwise) or preference, priority
or other security interest or preferential arrangement of any kind or nature
whatsoever (including those created by, arising under or evidenced by any
conditional sale or other title retention agreement, the interest of a lessor
under a Capital Lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any financing
statement naming the 


 


105

















 


owner
of the asset to which such lien relates as debtor, under the UCC or any
comparable law) and any contingent or other agreement to provide any of the
foregoing, but not including the interest of a lessor under a lease which is
not a Capital Lease.


 


“Loan” means an extension of
credit by a Lender to the Borrower in Dollars or a Foreign Currency pursuant to
Article I hereof, and may be a Base Rate Loan or a LIBOR Rate Loan.


 


“Loan Documents” means this
Agreement, the Notes, the Fee Letter, the Collateral Documents and all
documents delivered to the Agent and/or any Lender in connection with any of
the foregoing.


 


“Margin Stock” means “margin
stock” as such term is defined in Regulation T, U  or X of the Federal Reserve Board.


 


“Material Adverse Effect”
means: (a) a material adverse change in, or a material adverse effect
upon, the operations, business, Properties, condition (financial or otherwise)
or prospects of the Borrower or the Borrower and its Subsidiaries taken as a
whole; (b) a material impairment of the ability of any Credit Party, any
Subsidiary of any Credit Party or any other Person (other than the Agent or
Lenders) to perform in any material respect its obligations under any Loan
Document; or (c) a material adverse effect upon (i) the legality,
validity, binding effect or enforceability of any Loan Document, or (ii) the
perfection or priority of any Lien granted to the Lenders or to the Agent for
the benefit of the Lenders under any of the Collateral Documents.


 


“Material Environmental
Liabilities” means Environmental Liabilities which could reasonably be expected
to result in a Material Adverse Effect.


 


“Mortgage” means any deed of
trust, leasehold deed of trust, mortgage, leasehold mortgage, deed to secure
debt, leasehold deed to secure debt  or
other document creating a Lien on real Property or any interest in real
Property.


 


“Multiemployer Plan” means
any multiemployer plan, as defined in Section 4001(a)(3) of ERISA, as
to which any ERISA Affiliate incurs or otherwise has any obligation or
liability, contingent or otherwise.


 


“Net Issuance Proceeds”
means, in respect of any issuance of debt or equity, cash proceeds (including
cash proceeds as and when received in respect of non-cash proceeds received or
receivable in connection with such issuance), net of  underwriting discounts and reasonable
out-of-pocket costs and expenses paid or incurred in connection therewith in
favor of any Person not an Affiliate of the Borrower.


 


“Net Proceeds” means
proceeds in cash, checks or other cash equivalent financial instruments
(including Cash Equivalents) as and when received by the Person making a
Disposition and insurance proceeds received on account of an Event of Loss, net
of: (a) in the 


 


106

















 


event
of a Disposition (i) the direct costs relating to such Disposition
excluding amounts payable to the Borrower or any Affiliate of the Borrower, (ii) sale,
use or other transaction taxes paid or payable as a result thereof, and (iii) amounts
required to be applied to repay principal, interest and prepayment premiums and
penalties on Indebtedness secured by a Lien on the asset which is the subject
of such Disposition and (b) in the event of an Event of Loss, (i) all
money actually applied to repair or reconstruct the damaged Property or
Property affected by the condemnation or taking, (ii) all of the costs and
expenses reasonably incurred in connection with the collection of such proceeds,
award or other payments, and (iii) any amounts retained by or paid to
parties having superior rights to such proceeds, awards or other payments.


 


“Non-U.S. Lender Party”
means each of the Agent, each Lender, each L/C Issuer, each SPV and each
participant, in each case that is not a United States person under and as
defined in Section 7701(a)(30) of the Code.


 


“Note” means any Revolving
Note or Swingline Note and “Notes” means all such Notes.


 


“Notice of Borrowing” means
a notice given by the Borrower to the Agent pursuant to Section 1.5,
in substantially the form of Exhibit 11.1(c) hereto.


 


“Obligations” means all
Loans, and other Indebtedness, advances, debts, liabilities, obligations,
covenants and duties owing by any Credit Party to any Lender, the Agent, any
L/C Issuer, any Secured Swap Provider or any other Person required to be
indemnified, that arises under any Loan Document or any Secured Rate Contract,
whether or not for the payment of money, whether arising by reason of an
extension of credit, loan, guaranty, indemnification or in any other manner,
whether direct or indirect (including those acquired by assignment), absolute
or contingent, due or to become due, now existing or hereafter arising and
however acquired.


 


“Ordinary Course of Business”
means, in respect of any transaction involving any Credit Party or any
Subsidiary of any Credit Party, the ordinary course of such Person’s business,
as conducted by any such Person in accordance in all material respects with
past practice (except any deviation therefrom which, in the reasonable business
judgment of any such Credit Party or any Subsidiary thereof, is in the best
interests of such Person’s business) and undertaken by such Person in good
faith and not for purposes of evading any covenant or restriction in any Loan
Document.


 


“Organization Documents”
means, (a) for any corporation, the certificate or articles of
incorporation, the bylaws, any certificate of determination or instrument
relating to the rights of preferred shareholders of such corporation, any
shareholder rights agreement, (b) for any partnership, the partnership
agreement and, if applicable, certificate of limited partnership, (c) for
any limited liability company, the operating agreement and articles or
certificate of formation or (d) any other document setting forth the
manner of election or duties of the officers, directors, managers or other
similar persons, or the designation, amount or relative rights, limitations and
preference of the Stock of a Person.


 


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“Patents” means all rights,
title and interests (and all related IP Ancillary Rights) arising under any
Requirement of Law in or relating to letters patent and applications therefor.


 


“Patriot Act” means the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, P.L. 107-56, as amended.


 


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


 


“Permits” means, with
respect to any Person, any permit, approval, authorization, license,
registration, certificate, concession, grant, franchise, variance or permission
from, and any other Contractual Obligations with, any Governmental Authority,
in each case whether or not having the force of law and applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.


 


“Permitted Acquisition”
means any Acquisition by (i) the Borrower or any Wholly-Owned Subsidiary
of the Borrower which is a Domestic Subsidiary of substantially all of the
assets of a Target, which assets are located in the United States or (ii) the
Borrower or any Wholly-Owned Subsidiary of the Borrower which is a Domestic
Subsidiary of 100% of the Stock and Stock Equivalents of a Target incorporated
under the laws of any State in the United States or the District of Columbia,
in each case with respect to clauses (i) and (ii), to the extent that each of
the following conditions shall have been satisfied:


 


(a)           to the extent the Acquisition will be financed in whole or
in part with the proceeds of any Loan, the conditions set forth in Section 2.2
shall have been satisfied;


 


(b)           the Borrower shall have furnished to the Agent and Lenders
at least ten (10) Business Days prior to the consummation of such
Acquisition (1) if available, an executed term sheet and/or commitment
letter (setting forth in reasonable detail the terms and conditions of such
Acquisition) and, at the request of the Agent, such other information and documents
that the Agent in its good faith credit judgment may request, including,
without limitation, executed counterparts of the respective agreements,
documents or instruments pursuant to which such Acquisition is to be
consummated (including, without limitation, any related management,
non-compete, employment, option or other material agreements), any schedules to
such agreements, documents or instruments and all other material ancillary
agreements, instruments and documents to be executed or delivered in connection
therewith, (2) pro forma financial statements of Borrower and its
Subsidiaries after giving effect to the consummation of such Acquisition, (3) a
certificate of a Responsible Officer of the Borrower demonstrating on a pro
forma basis for the most recently ended twelve month period a Senior Leverage
Ratio of not more than 1.50 to 1 and compliance with the covenants set forth in
Article VI hereof, in each case, after giving effect to the consummation
of such Acquisition and (4) copies of such other agreements, instruments
and other documents (including, without limitation, the Loan Documents required
by Section 4.13) as the Agent reasonably shall request;


 


108

















 


(c)           the Borrower and its Subsidiaries (including any new
Subsidiary) shall execute and deliver the agreements, instruments and other
documents required by Section 4.13 and the Agent shall have
received, for the benefit of the Agent and Lenders, a collateral assignment of
the seller’s representations, warranties and indemnities to the Borrower or any
of its Subsidiaries under the acquisition documents;


 


(d)           such Acquisition shall not be hostile and shall have been
approved by the board of directors (or other similar body) and/or the
stockholders or other equityholders of the Target;


 


(e)           no Default or Event of Default shall then exist or would
exist after giving effect thereto;


 


(f)            (i) after giving effect to such Acquisition,
Availability shall be not less than $5,000,000 and (ii) average Availability
for the ninety day period immediately preceding consummation of such
Acquisition shall not be less than $5,000,000;


 


(g)           the total consideration paid or payable (including without
limitation, any deferred payment) (i) for all Acquisitions consummated
during any two year period shall not exceed $50,000,000 in the aggregate, (ii) for
any single Acquisition shall not exceed $30,000,000 in the aggregate and (iii) in
cash for any single Acquisition shall not exceed $25,000,000 in the aggregate;


 


(h)           the Target has EBITDA, subject to proforma adjustments
acceptable to the Agent, for the most recent four quarters prior to the
acquisition date for which financial statements are available, greater than
zero;


 


(i)            the Target is engaged in substantially the same or a
related line of business as the Credit Parties with assets located in the
United States, Canada or Europe; and


 


(j)            the Agent shall have reviewed (such review to be
completed by Agent in a reasonably timely manner) and approved (giving of such
approval to be determined by Agent in its good faith credit judgment) the final
Acquisition documentation, including any required regulatory and third party
approvals and environmental assessments requested by Agent in its good faith
credit judgment.


 


“Person” means an
individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture or
Governmental Authority.


 


“Pledged Collateral” has the
meaning specified in the Guaranty and Security Agreement and shall include any
other Collateral required to be delivered to Agent pursuant to the terms of any
Collateral Document.


 


109

















 


“Property” means any
interest in any kind of property or asset, whether real, personal or mixed, and
whether tangible or intangible.


 


“Rate Contracts” means swap
agreements (as such term is defined in Section 101 of the Bankruptcy Code)
and any other agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates.


 


“Related Persons” means,
with respect to any Person, each Affiliate of such Person and each director,
officer, employee, agent, trustee, representative, attorney, accountant and
each insurance, environmental, legal, financial and other advisor (including
those retained in connection with the satisfaction or attempted satisfaction of
any condition set forth in Article II) and other consultants and agents of
or to such Person or any of its Affiliates.


 


“Releases” means any
release, threatened release, spill, emission, leaking, pumping, pouring,
emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal,
dumping, leaching or migration of Hazardous Material into or through the
environment.


 


“Remedial Action” means all
actions required by Environmental Laws to (a) clean up, remove, treat or
in any other way address any Hazardous Material in the environment, (b) prevent
or minimize any Release so that a Hazardous Material does not migrate or endanger
or threaten to endanger public health or welfare or the indoor or outdoor
environment or (c) perform pre remedial studies and investigations and
post-remedial monitoring and care with respect to any Hazardous Material.


 


“Required Lenders” means at
any time (a) Lenders then holding more than fifty percent (50%) of the sum
of the Aggregate Revolving Loan Commitment then in effect, or (b) if the
Aggregate Revolving Loan Commitments have terminated, Lenders then having more
than fifty percent (50%) of the sum of the aggregate unpaid principal amount of
Loans (other than Swing Loans) then outstanding, outstanding Letter of Credit
Obligations, amounts of participations in Swing Loans and the principal amount
of unparticipated portions of Swing Loans; provided  that so long
as there are two (2) or more Lenders, Required Lenders must include at
least two (2) Lenders.


 


“Requirement of Law” means,
as to any Person, any law (statutory or common), ordinance, treaty, rule,
regulation, order, policy, other legal requirement or determination of an
arbitrator or of a Governmental Authority, in each case applicable to or
binding upon such Person or any of its Property or to which such Person or any
of its Property is subject.


 


“Responsible Officer” means
the chief executive officer or the president of the Borrower, or any other
officer having substantially the same authority and responsibility; or, with
respect to compliance with financial covenants or delivery of financial
information, the chief financial officer or the treasurer of the Borrower, or
any other officer having substantially the same authority and responsibility.


 


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“Revolving Note” means a
promissory note of the Borrower payable to the order of a Lender in substantially
the form of Exhibit 11.1(d) hereto, evidencing Indebtedness of the
Borrower under the Revolving Loan Commitment of such Lender.


 


“Revolving Termination Date”
means the earlier to occur of: (a) February 6, 2014; and (b) the
date on which the Aggregate Revolving Loan Commitment shall terminate in
accordance with the provisions of this Agreement.


 


“SAP Claims” shall mean
Borrower’s claims and causes of action against SAP America, Inc


 


“Secured
Party” means the Agent, each Lender, each L/C Issuer, each Indemnitee and each
other holder of any Obligation of a Credit Party, including each Secured Swap
Provider.


 


“Secured Rate Contract”
means any Rate Contract between any Credit Party and the counterparty thereto,
which is a Secured Swap Provider.


 


“Secured Swap Provider”
means (i) a Lender or an Affiliate of a Lender (or a Person who was a
Lender or an Affiliate of a Lender at the time of execution and delivery of a
Rate Contract) who has entered into a Secured Rate Contract with any Credit
Party, or (ii) a Person with whom any Credit Party has entered into a
Secured Rate Contract provided or arranged by GE Capital or an Affiliate of GE
Capital, and any assignee thereof.


 


“Second Restatement Closing
Date” means the date on which all conditions precedent set forth in Section 2.1
are satisfied or waived by the Agent and all Lenders.


 


“Senior
Debt” means, as of any determination date, the sum of (a) all Indebtedness
under this Agreement, including Letter of Credit Obligations, and (b) Capital
Lease Obligations.


 


“Senior Leverage Ratio”
means, with respect to any Person, on a consolidated basis, the ratio of (a) Senior
Debt as of any date of determination (including the average daily closing
balance of the Revolving Loan for the thirty (30) days preceding and including
any date of determination), to (b) EBITDA for the fiscal period ended on
such date.


 


“Solvent” means, with
respect to any Person as of any date of determination, that, as of such date, (a) the
value of the assets of such Person (both at fair value and present fair
saleable value) is greater than the total amount of liabilities (including
contingent and unliquidated liabilities) of such Person, (b) such Person
is able to pay all liabilities of such Person as such liabilities mature and (c)
such Person does not have unreasonably small capital.  In computing the amount of contingent or
unliquidated liabilities at any time, such liabilities shall be computed at the
amount that, in 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.


 


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“SPV” means any special
purpose funding vehicle identified as such in a writing by any Lender to the
Agent.


 


“Sterling” or “£” means
the lawful currency of the United Kingdom.


 


“Sterling Base
Rate” means, for any day, the higher of (a) a
floating rate equal to the rate publicly quoted from time to time by The Wall Street Journal as the “prime rate”
for Britain (or, if The Wall Street Journal
ceases quoting a rate of the type described, the prime rate for Sterling
generally posted by Britain’s largest banks) and (b) 3.00% per annum.  Any change in the
Sterling Base Rate due to a change in the foregoing shall be effective on the
effective date of such change in the “prime rate” for Britain.


 


“Sterling LIBOR” means, for
each Interest Period, the offered rate per annum for deposits of Sterling for
the applicable Interest Period that appears on Reuters Screen LIBOR01 as of 11:00 A.M.
(London, England time) two (2) Business Days prior to the first day in
such Interest Period.  If no such offered
rate exists, such rate will be the rate of interest per annum, as determined by
the Agent (rounded upwards, if necessary, to the nearest 1/100 of 1%) at which
deposits of Sterling in immediately available funds are offered at 11:00 A.M.
(London, England time) two (2) Business Days prior to the first day in
such Interest Period by major financial institutions reasonably satisfactory to
the Agent in the London interbank market for such Interest Period for the
applicable principal amount on such date of determination.


 


“Stock” means all shares of
capital stock (whether denominated as common stock or preferred stock), equity
interests, beneficial, partnership or membership interests, joint venture
interests, participations or other ownership or profit interests in or
equivalents (regardless of how designated) of or in a Person (other than an
individual), whether voting or non-voting.


 


“Stock Equivalents” means
all securities convertible into or exchangeable for Stock or any other Stock
Equivalent and all warrants, options or other rights to purchase, subscribe for
or otherwise acquire any Stock or any other Stock Equivalent, whether or not
presently convertible, exchangeable or exercisable.


 


“Subsidiary”
of a Person means any corporation, association, limited liability company,
partnership, joint venture or other business entity of which more than fifty
percent (50%) of the voting Stock (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the Person, or
one or more of the Subsidiaries of the Person, or a combination thereof.


 


“Swingline Commitment” means
$6,500,000.


 


“Swingline Lender” means,
each in its capacity as Swingline Lender hereunder, GE Capital or, upon the
resignation of GE Capital as Agent hereunder, any Lender (or Affiliate or
Approved Fund of any Lender) that agrees, with the approval of the Agent (or,
if there is no such 


 


112

















 


successor
Agent, the Required Lenders) and the Borrower, to act as the Swingline Lender
hereunder.


 


“Swingline Note” means a
promissory note of the Borrower payable to the order of the Swingline Lender in
substantially the form of Exhibit 11.1(e) hereto, evidencing
Indebtedness of the Borrower under the Swingline Commitment.


 


“Target” means any other
Person or business unit or asset group of any other Person acquired or proposed
to be acquired in an Acquisition.


 


“Tax Affiliate” means, (a) Borrower
and its Subsidiaries and (b) any Affiliate of Borrower with which Borrower
files or is eligible to file consolidated, combined or unitary tax returns.


 


“Title IV Plan” means a
pension plan subject to Title IV of ERISA, other than a Multiemployer Plan, to
which any ERISA Affiliate incurs or otherwise has any obligation or liability,
contingent or otherwise.


 


“Total Leverage Ratio”
means, with respect to any Person, on a consolidated basis, the ratio of (a) Indebtedness
as of any date of determination (including the average daily closing balance of
the Revolving Loan for the thirty (30) days preceding and including any date of
determination), to (b) EBITDA for the fiscal period ended on such date.


 


“Trade Secrets” means all
right, title and interest (and all related IP Ancillary Rights) arising under
any Requirement of Law in or relating to trade secrets.


 


“Trademark” means all
rights, title and interests (and all related IP Ancillary Rights) arising under
any Requirement of Law in or relating to trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers and, in each
case, all goodwill associated therewith, all registrations and recordations
thereof and all applications in connection therewith.


 


“Transactions” shall mean,
collectively, the transactions to occur on or prior to the Second Restatement
Closing Date pursuant to this Agreement, including (a) the execution,
delivery and performance of this Agreement and all other documents to be
executed in connection herewith and (b) the payment of all fees and
expenses to be paid on or prior to the Second Restatement Closing Date and
owing in connection with the foregoing.


 


“UCC” means the Uniform
Commercial Code as in effect from time to time in the State of New York.


 


“United States” and “U.S.”
each means the United States of America.


 


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“Unused Facility Amount”
means (i) the Aggregate Revolving Loan Commitment, less (ii) the sum
of (x) the average daily balance of all Revolving Loans outstanding plus (y) the
average daily amount of Letter of Credit Obligations, in each case, during the
preceding month.


 


“U.S. Lender Party” means
each of the Agent, each Lender, each L/C Issuer, each SPV and each participant,
in each case that is a United States person under and as defined in Section 7701(a)(30)
of the Code.


 


“Wholly-Owned Subsidiary”
means any Subsidiary in which (other than directors’ qualifying shares required
by law) one hundred percent (100%) of the Stock and Stock Equivalents, at the
time as of which any determination is being made, is owned, beneficially and of
record, by any Credit Party, or by one or more of the other Wholly-Owned
Subsidiaries, or both.


 


“Withdrawal Liabilities”
means, at any time, any liability incurred (whether or not assessed) by any
ERISA Affiliate and not yet satisfied or paid in full at such time with respect
to any Multiemployer Plan pursuant to Section 4201 of ERISA.


 


11.2        Other Interpretive Provisions.


 


(a)           Defined
Terms.  Unless otherwise specified
herein or therein, all terms defined in this Agreement or in any other Loan
Document shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto. 
The meanings of defined terms shall be equally applicable to the
singular and plural forms of the defined terms. 
Terms (including uncapitalized terms) not otherwise defined herein and
that are defined in the UCC shall have the meanings therein described.


 


(b)           The
Agreement.  The words “hereof”, “herein”,
“hereunder” and words of similar import when used in this Agreement or any
other Loan Document shall refer to this Agreement or such other Loan Document
as a whole and not to any particular provision of this Agreement or such other
Loan Document; and subsection, section, schedule and exhibit references are to
this Agreement or such other Loan Documents unless otherwise specified.


 


(c)           Certain
Common Terms.  The term “documents”
includes any and all instruments, documents, agreements, certificates,
indentures, notices and other writings, however evidenced.  The term “including” is not limiting and
means “including without limitation.”


 


(d)           Performance;
Time.  Whenever any performance
obligation hereunder or under any other Loan Document (other than a payment
obligation) shall be stated to be due or required to be satisfied on a day
other than a Business Day, such performance shall be made or satisfied on the
next succeeding Business Day.  In the
computation of periods of time from a specified date to a later specified date,
the word “from” means “from and including”; the words 


 


114

















 


“to” and “until”
each mean “to but excluding”, and the word “through” means “to and including.”  If any provision of this Agreement or any
other Loan Document refers to any action taken or to be taken by any Person, or
which such Person is prohibited from taking, such provision shall be
interpreted to encompass any and all means, direct or indirect, of taking, or
not taking, such action.


 


(e)           Contracts.  Unless otherwise expressly provided herein or
in any other Loan Document, references to agreements and other contractual
instruments, including this Agreement and the other Loan Documents, shall be
deemed to include all subsequent amendments, thereto, restatements and
substitutions thereof and other modifications and supplements thereto which are
in effect from time to time, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document.


 


(f)            Laws.  References to any statute or regulation are
to be construed as including all statutory and regulatory provisions related
thereto or consolidating, amending, replacing, supplementing or interpreting
the statute or regulation.


 


11.3        Accounting Terms and Principles.  All accounting determinations required to be
made pursuant hereto shall, unless expressly otherwise provided herein, be made
in accordance with GAAP.  No change in
the accounting principles used in the preparation of any financial statement
hereafter adopted by Borrower shall be given effect for purposes of measuring
compliance with any provision of Article V or VI unless the Borrower, the
Agent and the Required Lenders agree to modify such provisions to reflect such
changes in GAAP and, unless such provisions are modified, all financial
statements, Compliance Certificates and similar documents provided hereunder
shall be provided together with a reconciliation between the calculations and
amounts set forth therein before and after giving effect to such change in
GAAP.


 


[Balance of page intentionally left blank; signature page follows.]


 


115






 










 


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


 


	
   

  	
  BANCTEC,
  INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Jeffrey D. Cushman

  
	
   

  	
  Name:
  Jeffrey D. Cushman

  
	
   

  	
  Title:
  Senior Vice President, Chief Financial Officer and Treasurer

  
	
   

  	
  FEIN:
   75-1559633

  
	
   

  	
   

  
	
   

  	
  Address
  for notices:

  
	
   

  	
   

  
	
   

  	
  2701
  E. Grauwyler Road

  
	
   

  	
  Irving,
  TX 75061

  
	
   

  	
  Attn:
  Chief Financial Officer

  
	
   

  	
  Facsimile:
  972-821-4448

  
	
   

  	
   

  
	
   

  	
  Address
  for Wire Transfers:

  
	
   

  	
   

  
	
   

  	
  JPMorgan
  Chase Bank

  
	
   

  	
  Houston,
  Texas

  
	
   

  	
  Routing:
  113000609

  
	
   

  	
  For
  Credit To: BancTec, Inc.

  
	
   

  	
  Account No. 08805018999

  



 

















 


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


 


	
   

  	
  BTC
  VENTURES, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey D. Cushman

  
	
   

  	
  Name:

  	
  Jeffrey
  D. Cushman

  
	
   

  	
  Title:

  	
  President,
  Chief Financial Officer and Secretary

  
	
   

  	
  FEIN:

  	
  32-0040859

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BTI
  TECHNOLOGIES, L.P., a Texas limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BancTec, Inc.,
  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Jeffrey D. Cushman

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey
  D. Cushman

  
	
   

  	
   

  	
  Title:

  	
  Senior
  Vice President, Chief Financial Officer

  
	
   

  	
   

  	
  and
  Treasurer

  
	
   

  	
   

  	
  FEIN:

  	
  32-0040860

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BTC
  INTERNATIONAL HOLDINGS, INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey D. Cushman

  
	
   

  	
  Name:

  	
  Jeffrey
  D. Cushman

  
	
   

  	
  Title:

  	
  Chief
  Financial Officer and Secretary

  
	
   

  	
  FEIN:

  	
  32-0004267

  



 

















 


	
   

  	
  BANCTEC
  (PUERTO RICO), INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey D. Cushman

  
	
   

  	
  Name:

  	
  Jeffrey
  D. Cushman

  
	
   

  	
  Title:

  	
  Senior
  Vice President, Chief Financial Officer and 

  
	
   

  	
  Treasurer

  
	
   

  	
  FEIN:

  	
  66-0393420

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RECOGNITION
  MEXICO HOLDING INC., a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey D. Cushman

  
	
   

  	
  Name:

  	
  Jeffrey
  D. Cushman

  
	
   

  	
  Title:

  	
  Senior
  Vice President, Chief Financial Officer,

  
	
   

  	
  Secretary
  and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DOCUDATA
  SOLUTIONS, L.C.,

  a Texas limited liability company

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Jeffrey D. Cushman

  
	
   

  	
  Name:

  	
  Jeffrey
  D. Cushman

  
	
   

  	
  Title:

  	
  Senior
  Vice President, Chief Financial Officer and 

  
	
   

  	
  Treasurer

  
	
   

  	
  FEIN:

  	
  32-0004267

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address
  for notices for Credit Parties (other than Borrower):

  
	
   

  	
   

  
	
   

  	
  2701
  E. Grauwyler Road

  
	
   

  	
  Irving,
  TX 75061

  
	
   

  	
  Attn:
  Chief Financial Officer

  
	
   

  	
  Facsimile:
  972-821-4448

  



 

















 


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


 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as the Agent, L/C Issuer, Swingline Lender and
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joseph Tunney

  
	
   

  	
  Title:

  	
  Its
  Duly Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Address
  for Notices:

  
	
   

  	
  General
  Electric Capital Corporation

  
	
   

  	
  201 Merritt 7

  
	
   

  	
  P.O. Box 5201

  
	
   

  	
  Norwalk, CT 06856-5201

  
	
   

  	
  Attn:
  Corporate Counsel-Corporate Lending

  
	
   

  	
  Facsimile:
  (203) 956-4001

  
	
   

  	
   

  
	
   

  	
  Address
  for payments in Dollars:

  
	
   

  	
  Bank: 
  Deutsche Bank

  
	
   

  	
  ABA:
  021001033

  
	
   

  	
  Account
  Name: GECC/CIF CL Loans

  
	
   

  	
  Account
  Number: 50279329

  
	
   

  	
  Ref:
  Banctec CFN8851

  
	
   

  	
   

  
	
   

  	
  Address for payments in Euros:

  
	
   

  	
  Bank:  Deutsche Bank

  
	
   

  	
  IBAN: DE22500700100176603900

  
	
   

  	
  Account Name: General Electric Capital Corporation

  
	
   

  	
  Account Number: 1766039

  
	
   

  	
  Ref: Banctec CFI1751

  
	
   

  	
   

  
	
   

  	
  Address
  for payments in Sterling:

  
	
   

  	
  Bank:
  Barclays Bank PLC

  
	
   

  	
  IBAN:
  GB83BARC20000000282596

  
	
   

  	
  Account
  Name: GECC/CEF CIF

  
	
   

  	
  Account
  Number: 00282596

  
	
   

  	
  Ref: Banctec CFI1752 

  



 

















 


Schedule 1.1(b)


 


Revolving Loan Commitments


 


	
  General Electric Capital Corporation

  	
   

  	
  $

  	
  65,000,000

  	
   

  



 

















 


EXHIBIT 1.1(c)


TO


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


FORM OF LETTER OF CREDIT REQUEST


 


GENERAL ELECTRIC CAPITAL CORPORATION,


As Agent under the Credit Agreement referred to
below


 


[NAME OF L/C ISSUER], as L/C Issuer


under the Credit Agreement referred to below


 


Attention:


 


                      ,
20    


 


Re:          BancTec, Inc. (the “Borrower”)


 


Reference is made to the
Second Amended and Restated Credit Agreement, dated as of March 31, 2010
(as the same may be amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the other Credit Parties party thereto, the Lenders and L/C Issuers
party thereto and General Electric Capital Corporation, as administrative agent
for the Lenders and L/C Issuers. 
Capitalized terms used herein without definition are used as defined in
the Credit Agreement.


 


The Borrower hereby gives
notice, irrevocably, pursuant to Section 1.1(c) of the Credit
Agreement, of its request for Issuance of a Letter of Credit, in the form
attached hereto, for the benefit of [Name of Beneficiary],
in the amount of $                ,
to be issued on
                ,
         (the “Issue Date”) with
an expiration date of
                  ,
        .


 


The undersigned hereby
certifies that, except as set forth on Schedule A attached hereto, the
following statements are true on the date hereof and will be true on the Issue
Date, both before and after giving effect to the Issuance of the Letter of
Credit requested above and any Loan to be made or any other Letter of Credit to
be Issued on or before the Issue Date:


 


(i)            the representations
and warranties set forth in Article III of the Credit Agreement and
elsewhere in the Loan Documents are true and correct in all material respects
(without duplication of any materiality qualifier contained therein), except to
the extent such representations and warranties expressly relate to an earlier
date, in which case such representations and warranties were true and correct
in all material respects as of such date;


 


(ii)           no
Default or Event of Default has occurred and is continuing;


 


(iii)          the
aggregate outstanding amount of Revolving Loans does not exceed the Maximum
Revolving Loan Balance; and


 

















 


(iv)          the
Dollar Equivalent of Revolving Loans advanced in a Foreign Currency does not
exceed the Foreign Subfacility Limit.


 


 


[SIGNATURE
PAGE TO LETTER OF CREDIT REQUEST DATED              
       ,            ]


 

















 


	
   

  	
  BANCTEC,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 






 










 


EXHIBIT 1.6


TO


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


FORM OF NOTICE OF CONVERSION OR CONTINUATION


 


GENERAL ELECTRIC CAPITAL CORPORATION


as Agent under the Credit Agreement referred to
below


 


                 ,       


 


Attention:


 


Re:          BancTec, Inc.  (the “Borrower”)


 


Reference is made to the
Second Amended and Restated Credit Agreement, dated as of March 31, 2010
(as the same may be amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the other Credit Parties party thereto, the Lenders and L/C Issuers
party thereto and General Electric Capital Corporation, as administrative agent
for the Lenders and L/C Issuers. 
Capitalized terms used herein and not otherwise defined herein are used
herein as defined in the Credit Agreement.


 


The Borrower hereby gives
Agent irrevocable notice, pursuant to Section 1.6 of the Credit
Agreement of its request for the following:


 


(i)            a
continuation, on              ,
        , as LIBOR Rate Loans
denominated in [Dollars/Sterling/Euros] having an
Interest Period of        months of Revolving
Loans in an aggregate outstanding principal amount of $                         
having an Interest Period ending on the proposed date for such continuation;


 


(ii)           a
conversion, on
               ,
        , to LIBOR Rate Loans
denominated in [Dollars/Sterling/Euros] having an
Interest Period of        months of Revolving
Loans in an aggregate outstanding principal amount of
$                  ;
and


 


(iii)          a
conversion, on
                ,
        , to Base Rate Loans
denominated in [Dollars/Sterling], of Revolving
Loans in an aggregate outstanding principal amount of
$                  .


 


In connection herewith, the
undersigned hereby certifies that, except as set forth on Schedule A attached
hereto, no Default or Event of Default has occurred and is continuing on the
date hereof, both before and after giving effect to any Loan to be made or
Letter of Credit to be Issued on or before any date for any proposed conversion
or continuation set forth above.


 

















 


	
   

  	
  BANCTEC,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 

















 


EXHIBIT 4.2(b)


COMPLIANCE CERTIFICATE


BancTec, Inc.


 


Date:                             ,
200  


 


This
Compliance Certificate (this “Certificate”) is given by BancTec, Inc., a
Delaware corporation (“Borrower”), pursuant to subsection 4.2(b) of that
certain Second Amended and Restated Credit Agreement dated as of March 31,
2010 among Borrower, the other Credit Parties party thereto, General Electric
Capital Corporation, as administrative agent (“Agent”), and the Lenders and L/C
Issuers party thereto (as such agreement may be amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”).  Capitalized terms used
herein without definition shall have the meanings set forth in the Credit
Agreement.


 


The
officer executing this Certificate is a Responsible Officer of Borrower and
as such is duly authorized to execute and deliver this Certificate on
behalf of Borrower.  By executing
this Certificate, such officer hereby certifies to Agent, Lenders and L/C
Issuers, on behalf of Borrower, that:


 


(a)           the financial statements delivered
with this Certificate in accordance with subsection 4.1(a) and/or 4.1(b) of
the Credit Agreement are correct and complete and fairly present, in all
material respects, in accordance with GAAP the financial position and the
results of operations of Borrower and its Subsidiaries as of the dates of and
for the periods covered by such financial statements (subject, in the case of
interim financial statements, to normal year-end adjustments and the absence of
footnote disclosure);


 


(b)           to such officer’s knowledge, each
Credit Party and each of their Subsidiaries, during the period covered by such
financial statements, has observed and performed all of their respective
covenants and other agreements in the Credit Agreement and the other Loan
Documents to be observed, performed or satisfied by them, and such officer has
not obtained knowledge of any Default or Event of Default [except as
specified on the written attachment hereto];


 


(c)           Exhibit A hereto is a correct
calculation of each of the financial covenants contained in Article VI of
the Credit Agreement; and


 


(d)           since the Second Restatement Closing
Date and except as disclosed in prior Compliance Certificates delivered to
Agent, no Credit Party and no Subsidiary of any Credit Party has:


 


(i)            changed its legal name, identity,
jurisdiction of incorporation, organization or formation or organizational
structure or formed or acquired any Subsidiary except as follows:
                                                                        ;


 


(ii)           acquired the assets of, or merged or
consolidated with or into, any Person, except as follows:
                                                                                                  ;
or


 

















 


(iii)          changed its address or otherwise
relocated, acquired fee simple title to any real property or entered into any
real property leases, except as follows:
                                        
                                                              .


 


IN
WITNESS WHEREOF, Borrower has caused this Certificate to be executed by one of
its Responsible Officers this
           day of
                              ,
200   .


 


	
   

  	
  BANCTEC,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Its:

  	
   

  



 


 


Note:  Unless otherwise specified, all financial
covenants are calculated for Borrower and its Subsidiaries on a consolidated
basis.


 

















 


EXHIBIT 11.1(c)


TO


SECOND AMENDED AND RESTATED CREDIT AGREEMENT


 


FORM OF NOTICE OF BORROWING


 


GENERAL ELECTRIC CAPITAL CORPORATION


as Agent under the Credit Agreement referred to
below


 


                  ,   


 


Attention:


 


Re:          BancTec, Inc. (the “Borrower”)


 


Reference is made to the
Second Amended and Restated Credit Agreement, dated as of March 31, 2010
(as the same may be amended, restated, amended and restated, supplemented or
otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the other Credit Parties, the Lenders and L/C Issuers party thereto
and General Electric Capital Corporation, as administrative agent for such
Lenders and L/C Issuers.  Capitalized
terms used herein without definition are used as defined in the Credit
Agreement.


 


The Borrower hereby gives
you irrevocable notice, pursuant to Section 1.5 of the Credit
Agreement of its request of a Borrowing (the “Proposed Borrowing”) under
the Credit Agreement and, in that connection, sets forth the following
information:


 


The date of the Proposed
Borrowing is
                    ,
         (the “Funding Date”).


 


The aggregate principal
amount of requested Revolving Loans is [$      ][£      ][€      ],
of which [$      ] [£      ]
consists of Base Rate Loans and [$      ][£      ][€      ]
consists of LIBOR Rate Loans having an initial Interest Period of
              months.


 


The undersigned hereby
certifies that, except as set forth on Schedule A attached hereto, the
following statements are true on the date hereof and will be true on the
Funding Date, both before and after giving effect to the Proposed Borrowing and
any other Loan to be made or Letter of Credit to be Issued on or before the
Funding Date:


 


(i)            the representations and warranties set forth in Article III
of the Credit Agreement and elsewhere in the Loan Documents are true and
correct in all material respects (without duplication of any materiality
qualifier contained therein), except to the extent such representations and
warranties expressly relate to an earlier date, in which case such
representations and warranties were true and correct in all material respects
as of such date;


 


(ii)           no Default or Event of Default has occurred and is
continuing;


 


(iii)          the aggregate outstanding amount of Revolving Loans does
not exceed the Maximum Revolving Loan Balance; and


 


[$                  ]
REVOLVING LOAN NOTE


OF BANCTEC, INC. FOR THE BENEFIT OF [NAME OF LENDER]


 


1

















 


(iv)          the Dollar Equivalent of Revolving Loans advanced in a
Foreign Currency does not exceed the Foreign Subfacility Limit.


 


	
   

  	
  BANCTEC,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[$                  ]
TERM NOTE A


OF [NAME OF
BORROWER] FOR THE BENEFIT OF [NAME OF LENDER]


 


2